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PETITIONS  FOR  DAMAGES 


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C I T A OF  BOSTON 


IE  PETITIONS.  TESTIMONY  AND  ARGUMENTS  OF  COUNSEL 


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WILLIAM  G.  EUSSELL, 
JAMES  V>.  FT!  AM  CIS, 
(HAELES  A.  STEVENS, 


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COMMISSIONERS  UNDER  THE  ACT-  OF  LEGISLATURE 
SSSSk  FOli  SUPPLYING  THE  CITY  OF  'BOSTON 


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WITH  PITRE  WATER. 


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ROCKWELL  AND  CHURCHILL,  (MTV  PR  I NTERJS, 


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No.  i’89  A It  C II  S T R K K T 

18  7 6", 


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THE  UNIVERSITY 
OF  ILLINOIS 
LIBRARY 

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PETITIONS  POE  DAMAGES 


FOR  THE 


Diversion 


of  Sudbury  River 

BY  THE 


CITY  OF  BOSTON. 


BEING 

THE  PETITIONS,  TESTIMONY  AND  ARGUMENTS  OF  COUNSEL 
PRESENTED  BEFORE 

WILLIAM  G.  RUSSELL, 

JAMES  B.  FRANCIS, 

CHARLES  A.  STEVENS, 

COMMISSIONERS  UNDER  THE  ACT  OF  LEGISLATURE 
FOR  SUPPLYING  THE  CITY  OF  BOSTON 
WITH  PURE  WATER. 


BOSTON : 

ROCKWELL  AND  CHURCHILL,  CITY  PRINTERS, 

No.  39  Arch  Street. 

1 876. 


PETITIONERS  FOR  DAMAGES 


ESSEX  COMPANY  . 

THE  SAXONYILLE  MILLS  . 
CHARLES  P.  TALBOT  ET  AL 
JAMES  R.  FAULKNER  . 
STERLING  MILLS  . 

L.  W.  FAULKNER  . 

S.  N.  WOOD  . 

LOWELL  BLEACHERY  . 

C.  B.  SNYDER 
NANCY  L.  RICHMOND. 
BELVIDERE  WOOLLEN  CO. 


Of  Lawrence, 
Framingham, 
Billerica, 

U 

Lowell, 

<4 

44 

u 

44 

u 

44 


AGAINST  THE 

CITY  OF  BOSTON. 


ELIAS  MERWIN, 

J.  J.  STORROW, 

E.  F.  HODGES, 

J.  G.  ABBOTT, 

GEO.  F. 


G.  A.  SOMERBY, 

GEO.  O.  SHATTUCK, 
MOORFIELD  STOREY, 
DANIEL  S.  RICHARDSON, 
RICrfARDSON, 


Of  Counsel  for  Petitioners. 


BENJAMIN  F.  BUTLER, 
LINUS  M.  CHILD, 


Of  Counsel  for  the  City. 


vi^on  tsveX-s 


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O » w 

INDEX. 


A. 

PAG* 

Abbott,  J.  G.,  Closing  Argument  in  the  Talbot  and  Faulkner  Cases  . 502 

Supplementary  Argument  in  the  Talbot  Case  ....  1073 

B. 


Barrett,  Nathan,  Testimony  of 431 

Bacon,  Francis  W.  “ “ 249 

Belvidere  Woollen  Mills,  Case  of  . . . . . . . 882 

Title  of 884,  888,  913 

Testimony  of  Henry  Parkman 889 

“ “ J.  H.  Shedd 891 

“ “ John  Stott 907 

“ “ J.  P.  Frizell  947 

Tables  of  J.  P.  Frizell,  showing  flow  of  water  of  Wamesit  Dam  953 

Testimony  of  Clemens  Herschel 955 

Title  of  Wamesit  Power  Co 957 

Argument  of  Linus  M.  Child,  as  to  title!  of . . . . 1093-1140* 

Argument  of  George  O.  Shattuck,  as  to  title  of  . . . . 1156 

Billerica,  Records  of  the  Town  of ...  128 

Deed  of  the  Town  of  to  Talbot .370 

Votes  of  the  Town  of 371-373 

Blake,  Josiah  W.,  Testimony  of 274 

Butler,  William.  “ “ 278 

Butler,  B.  F.,  Argument  for  City,  in  Essex  Co.’s  Case  . . . 125-134 

Argument  for  Respondent  in  Saxonville  Mills  Case  . . . 282 

Closing  argument  in  Talbot  & Faulkner  Cases  . . . .456 

Closing  argument  in  Wamesit  Dam  Cases 1100 


n 

(P 


c. 


Carter,  William  H.,  Testimony  of 

Child,  Linus  M.,  Argument  of  as  to  title  of  the  Belvidere  Mills 
Closing  argument  in  the  Wamesit  Dam  Cases  . 

Clough,  George  W.,  Testimony  of 

Colson,  Israel,  “ “ 

Coburn,  Daniel,  “ “ 

Coburn,  Fordice,  “ “ 

Coffin,  Edward  A.,  “ “ 

Cochituate  Lake,  Comparison  of  Rainfall  of 


. 211 
. 1093-1140 
. 963 

. 255 

..  119 

857,  866,  879 
. 690 

. 863 

. 340,  341 


? ' ■ 

JO 


*4! 


IY 


Index 


D. 

PAGE 

Deeds.  Middlesex  Canal  Co.  to  F.  Faulkner 128 

“ “ “ Thomas  Richardson  ....  128 

“ “ “ C.  P.  Talbot 129 

“ “ Chas.  P.  Talbot,  et  al.  . . .363 

Town  of  Billerica  to  Talbot 370 

Thomas  Richardson  to  Middlesex  Canal  .....  372 

James  R.  Faulkner,  et  al.,  to  Chas.  P.  Talbot,  et  al.  . . . 376 

Talbot  to  Faulkner 377 

Sterns  to  Chas.  P.  Talbot,  et  al 395 

Oliver  M.  Whipple  to  Joshua  Mather 546 

Joshua  Mather  to  Charles  A.  Stott.  “ Lease  ” . . . . 549 

Chas.  A.  Stott  to  Marshall  P.  Wilder.  (Ass’m’t  of  lease)  . . 553 

Ephraim  B.  Patch  to  L.  W.  Faulkner  . . . . .573 

“ & Oliver  M.  Whipple  to  Luther  W.  Faulkner  579 

Oliver  M.  Whipple  to  S.  N.  Wood . 580 

“ Lowell  Bleachery  .....  590 

Oliver  B.  Coe  to  C.  B.  Snyder  599 

Alfred  H.  Chase  to  Oliver  B.  Coe  ......  601 

Oliver  M.  Whipple  to  Alfred  H.  Chase 603 

Ephraim  B.  Patch  to  Hocum  Hosford 606 

Hocum  Hosford  to  Alfred  H.  Chase 609 

Alfred  H.  Chase  to  Hocum  Hosford  . . . . . .706 

Wamesit  Power  Co.  to  City  of  Boston . . . . . 841 

S.  W.  Stickney,  Guardian,  to  Chas.  B.  Richmond  . . . 854 

Charles  Stott  to  Belvidere  Woollen  Manuf.  Co.  . . . $84,  886 

Thomas  Hurd  to  Winthrop  How 915-917 

Winthrop  How  to  Harrison  G.  How  ......  918 

Harrison  G.  Haw  to  Richd.  W arren,  et  al 920 

Winthrop  How  to  Abraham  How  . ......  921 

“ “ W.  & J.  How 921 

Abraham  Howe  to  Danl.  T.  Curtis  ......  922 

Danl.  T.  Curtis  to  Richd.  Warren  & al 923 

R.  Warren  & al.  to  Sami  Whitwell  & al 926 

“ “ James  Stewart,  et  al 926 

•*  “ Abijah  Brown  & al.  . . . . . 927 

“ “ Jos.  G.  Kittredge  & al 927 

Whitwell,  Bond  & al.  to  Walter  Farnsworth  & al.  . . . 928 

Warren  & al.  to  William  Eager 928 

Wm.  Eager  to  Warren  & al 929 

Wm.  Sturgis  to  W.  Farnsworth  & al 929 

Wm.  Eager  to  Farnsworth  & al 929 

Warren  & al.  to  Alpheus  Smith 929 

A.  Smith  to  Hazen  Elliott 930 

H.  Elliott  to  John  Nesmith  ........  931 

John  Nesmith  to  The  Whitney  Mills  ......  931 

A.  Smith  to  Seth  Ames  & George  Brown  . . . . .931 

Seth  Ames  & Geo.  Brown  to  Josiah  Brown  . . . . .931 


Index. 


iy — a 


PAGE 


B.  F.  Varnum,  adm.  of  J.  Brown,  to  Joel  Stone.  . . . 931 

Joel  Stone  to  Seth  Ames 932 

Seth  Ames  to  the  Whitney  Mills 932 

Whitney  Mills  to  Baker  & al . 932 

E.  Baker  to  W.  Farnsworth 933 

W.  Farnsworth  to  Henry  B.  Hart 933 

H.  B.  Hart  to  Benj.  Loring 935 

B.  Loring  to  W.  Farnsworth 938 

“ “ Chas.  Stott  ........  938 

W.  Farnsworth  & al.  to  Belvidere  Woollen  M’f’g  Co.  . . . 938 

E.  Baker  & al.  to  Jas.  0.  Patterson  ......  940 

W.  Farnsworth  & al.  to  E.  S.  French  & al 941 

E.  S.  French  & al.  to  John  Nesmith.  (“Ass’m’t”)  . . . 942 

Baker  & al.  to  John  Holt 942 

Warren  & al.  to  Hale  Clements 943 

Hale  Clements  to  Warren  & al 943 

Warren  & al.  to  Wliitwell  & al 943 

Wliitwell  & al.  to  Benj.  F.  White 943 

Benj.  F.  White  to  Danl.  Shattuck.  (“Ass’m’t”)  . . . 944 

Danl.  Shattuck  to  Whitney  Mills 944 

Whitney  Mills  to  J.  D.  Sturtevant 944 

J.  D.  Sturtevant  to  E.  Crosby  & al 944 

E.  Crosby  & al.  to  A.  J.  Richmond 944 

A.  J.  Richmond  to  Leonard  Church  & al.  . . . . . 945 

Sami.  W.  Stickney,  Guardian,  to  Ripley  & al.  . . . 945 

Anna  E.  Richmond  to  Ripley  & al 946 

Andrew  J.  Hammond  to  Geo.  Ripley  ......  946 

James  Church  & al.  to  Belvidere  Woollen  Co.  ....  946 

O.  M.  Whipple  to  Ephraim  B.  Patch 957 

Ephraim  B.  Patch  to  B.  F.  Butler 959 

B.  F.  Butler  to  Wamesit  Power  Co 962 


E. 


Essex  Company’s  Case,  Opening  Argument  of  J.  J.  Storrow  ...  1 

Testimony  of  H.  F.  Mills  29,  70 

“ “ C.  S.  Storrow 46,  96,  116 

“ “ John  Worcester 92,  114 

Tables  of  Surplus  Water  Power 97 

Testimony  of  Charles  J.  Frost 109 

Table  of  Mill  Power  sold 116 

Testimony  of  Israel  Colson  . .......  119 

“ “ Joseph  Tilton 123 

Argument  of  B.  F.  Butler  for  City 125,  134 

“ “ E.  Merwin  for  Petitioners 108 

Supplementary  Argument  of  E.  Merwin  on  right  of  City  to  draw 
water  from  Sudbury  river  when  it  is  running  over  the  dam 
of  Lake  Cochituate  ........  343 


iy — b 


Index. 


F. 

Farrington,  D.  W.  C.,  Testimony  of 
Faulkner,  J.  R.,  Case  of 
Deed  of  Talbot  to 
Table  of  use  of  Steam  by  . 

Testimony  of  Jonathan  Manning 
“ “ Nathan  Barrett 

“ “ David  Heard  . 

Closing  Argument  of  B.  F.  Butler 
“ “ “ J.  G.  Abbott 

Table  of  Steam  Power  used  by 
Faulkner,  Charles,  Testimony  of  . 

“ Richard,  “ “ 

“ Luther  W.,  “ “ 

“ “ Case  of 

“ Frederick,  Testimony  of 
Frost,  Charles  J.,  Testimony  of  . 

French,  Rufus  A.,  “ “ 

Frizell,  Joseph  P.  “ “ 248,  613, 

Tables  showing  Flow  of  Water  of  Wamesit  Dam 
Fteley,  A.,  Testimony  of 


695, 


AGEE 

741 
437 
377 
425 
429 
431 
433 
456 
502 
536  j 
423 
427 

662,  682 
570 
680,  685 
109 
242 
869,  879,  947 
953 
801 


Gibbs,  John,  Testimony  of 


G. 


239,  405 


H. 


Hale,  Bernice  S.,  Testimony  of 

. 

740 

Heard,  David,  “ 

. 

433 

Herschel,  Clemens,  “ “ 

769,  840, 

955 

Hill,  Emery,  “ “ 

. 

224 

Hiscox,  Andrew  J.  “ u 

661, 

674 

Holmes,  Edward  O.  “ “ 

408 

Calculation  of  Discharge  of  Gate  at  Talbot’s  Mill 

. 

428 

Hodges,  E.  F.,  Opening  Argument,  Saxonville  Mills  Case  . 

. 

194 

Closing  Argument,  Saxonville  Mills  Case  . 

299 

L. 

Lowell  Bleachery,  Case  of 586 

Deed  to,  by  O.  M.  Whipple 590 

M. 

Manning,  Jonathan,  Testimony  of  .......  429 

McDaniels,  Walter  H.,  Testimony  of 719 


Index 


iv — c 


Merwin,  Elias,  Closing  Argument,  Essex  Company’s  Case  . 

Supplementary  Argument  of  E.  Merwin  on  right  of  City  to  draw 


168 


water  from  Sudbury  river  when 
of  Lake  Cochituate 
Middlesex  Canal,  Dissolution  of  . 

Deed  of,  to  C.  P.  Talbot 
Mills,  H.  E.,  Testimony  of  . 


it  is  running  over  the  dam 

343 

125,  447 

129 

29,  70 


N. 

Naylor,  Samuel,  Testimony  of 


673 


P. 

Parker,  Wilder  & Co.,  Case  of 537 

Parkman,  Henry,  Testimony  of 889 

Patch,  E.  B.,  Deed  of  to  Luther  W.  Faulkner 573 

Release  of,  to  Luther  W.  Faulkner 579 


R. 


Rainfalls,  Comparison  of 339 

“ “at  Lake  Cochituate  ....  340,  341 

Tables  of  at  Lake  Cochituate  .......  848 

Richardson,  Dan’l  S.,  Arguments  of  ...  5.66,  577,  1008,  1061 

Richmond,  Nancy  L.,  Case  of  . . . . . . .851 

Testimony  of  Daniel  Coburn 857,  866,  879 

“ “ Edward  A Coffin 863 

“ “ J.  P.  Frizell 869,  879 

Argument  of  Daniel  S.  Richardson 1061 


S. 


Saxonville  Mills  Case 189 

Opening  Argument  of  E.  F.  Hodges 194 

Closing  “ “ “ 299 

Testimony  of  Samuel  Webber 204,234 

“ “ Emery  Hill 224 

“ “ William  H.  Carter 211 

“ “ E.  Watson 237 

“ “ John  Gibbs 239 

“ “ Rufus  A.  French 242 

“ “ J.  P.  Frizell 248 

“ “ F.  W.  Bacon 249 

“ “ George  W.  Clough 255 

“ “ Josiah  W.  Blake 274 


iy — d 


Index. 


PAGE 

Table  of  the  use  of  steam 262 

“ “ days  on  which  water-power  was  used  . . . 273,  336 

“ “ products  of 287 

Amount  of  coal  used 279 

Argument  of  B.  F.  Butler  ........  282 

Table  of  steam  and  water-power  used  .....  336 

Table  of  aggregate  power  used  at  Saxonville  Mills  . . . 337 

Supplementary  Arguments  as  to  the  right  of  the  city  to  draw  water 
from  Sudbury  river  when  it  is  running  over  the  dam  at  Lake 

Cochituate 342 

Supplementary  Argument  of  Edward  F.  Hodges  ....  1079 

Snyder,  C.  B.,  Testimony  of 683 

Case  of 593 

Argument  of  Moorfield  Storey  in  ......  593 

Title  of 599,  601,  603,  606,  609,  706 

Shedd,  J.  H.,  Testimony  of 891 

Shattuck,  George  O.,  Argument  as  to  title  of  Belvidere  Mills  No.  2 . 1156 

Opening  Argument  Sterling  Mills  ......  554 

Closing  Argument,  Sterling  Mills  . . . . . .981 

Argument  Belvidere  Mills  No.  1 ......  1056 

Somerby,  G.  A.,  Opening  argument  in  Talbot  Case  ....  359 

Stott,  John,  Testimony  of 674,  907 

Storey,  Moorfield,  Argument  in  case  of  C.  B.  Snyder  . . . 593,  1030 

Storrow,  J.  J.,  Opening  Argument,  Essex  Company’s  Case  ...  1 

Storrow,  C.  S.,  Testimony  of 46,  96,  116 

Sterling  Mills,  Case  of 537 

“ See  Wamesit  Dam.” 

T« 

Tables : 

Surplus  Water  Power.  Essex  Co 97 

Mill  Power  sold 116 

Showing  use  of  steam  and  amount  of  coal,  Saxonville  Mills  . 262 

Days  on  which  water  power  was  used  .....  273,  336 

Products  of  Saxonville  Mills * 278 

Amount  of  coal  used  by  Saxonville  Mills  . . . %.  . 279 

Aggregate  power  used  at  “ “ 337 

Rainfalls  at  Lake  Cochituate  .......  848 

Depth  of  water  on  Wamesit  Dam  . . . . . .711 

Use  of  steam  by  J.  R.  Faulkner 425 

Gauging  of  Sudbury  River  at  Framingham  ....  809 

J.  P.  Frizell,  showing  flow  of  water  of  Wamesit  Dam  . . 953 

Flow  of  Concord  River  on  Massic  Dam 790 

Yield  of  Sudbury  River  and  Farm  Pond,  1874-5-6  . . . 806 

Talbot,  Charles  P.,  et  al.,  Case  of 347 

Deed  of  Middlesex  Canal  Co.  to  . . . . . . . 363 

Exceptions  of  the  city  to  the  appointment  of  Commissioners  . 133 

Deposition  of  George  O.  Wilson 382 


INDEX. 


iy — e 


PPAG 

Deed  of  Sterns  to 

Testimony  of  John  Gibbs  ..... 

“ “ Edward  0.  Holmes 

“ “ Charles  Faulkner  .... 

11  “ Richard  Faulkner  .... 

Calculation  discharge  of  one  gate  by  E.  0.  Holmes 
Testimony  of  Jona.  Manning  . 

“ “ Nathan  Barrett  .... 

“ “ David  Heard 

Closing  Argument  B.  F.  Butler  .... 

“ “ J.  G.  Abbott  .... 

Supplementary  Argument  of  J.  G.  Abbott  . 

Talbot,  Thomas,  Testimony  of 

Tilton,  Joseph,  Testimony  of 

W. 

Wamesit  Dam.  Cases  on 
Sterling  Mills 
S.  N.  Wood 
L.  W.  Faulkner  . 

Lowell  Bleachery 
C.  B.  Snyder 


Deed  of  Oliver  M.  Whipple  to  Joshua  Mather  ....  546 

Lease  of  Mather  to  Stott  of  land  and  water  power  of  Sterling 

Mills 549 

Assignment  of  lease  by  Stott  to  Sterling  Mills  ....  553 

Opening  Argument  of  George  O.  Shattuck  in  Sterling  Mills  . 554 

Testimony  of  J.  P.  Frizell 613,  695 

“ “ Luther  W.  Faulkner 662,  682 

“ “ Andrew  J.  Hiscox 661,  674 

“ “ Sami.  Naylor 673 

“ “ John  Stott 674 

“ “ Frederick  Faulkner 680,  685 

“ “ C.  B.  Snyder 683 

“ “ Sami.  N.  Wood 685 

“ “ Fordice  Coburn 690 

“ “ John  Tilton 708 

Table  of  depth  of  water  on  Wamesit  Dam  . . . . .711 

Testimony  of  Walter  H.  McDaniels 719 

“ “ Bernice  S.  Hale 740 

“ “ D.  W.  C.  Farrington 741 

“ “ Clemens  Herschel 769,  840 

Table  of  flow  of  Concord  River  on  Massic  Dam  ....  790 

Testimony  of  A.  Fteley 801 

Table  of  the  yield  of  Sudbury  River  and  Farm  Pond,  1874-5-6  . 806 

Table  of  the  gaugings  of  Sudbury  River  at  Framingham  . . 809 

Closing  Argument  of  Linus  M.  Child  ......  963 


566 

570 

586 

593 


. 405 

. 408 

. 423 

. 427 

. 428 

. 429 

. 431 

. 433 

. 456 

. 502 

. 1070 

. 387 

123.  708 


IV-/ 


INDEX 


PAGE 


Argument  of  George  O.  Shattuck 981,1056 

“ “ Danl.  S.  Richardson 1008 

“ “ Moorfield  Storey 1030 

Closing  argument  of  B.  F.  Butler  ......  1100 

“ “ “ Geo.  O.  Shattuck 1142 

Tables  of  J.  P.  Frizell,  showing  flow  of  water  of  Wamesit  Dam,  953 

Title  of  Wamesit  Power  Co.  957 

Watson,  Eliphalet,  Testimony  of  237 

Webber,  Samuel,.  “ “ 204,  234 

Whipple,  Oliver  M.,  Release  of  to  L.  W.  Faulkner  . . . 576-579 


Deed  of  to  Sami.  N.  Wood 580 

“ “ Lowell  Bleachery  .......  590 

“ “ Joshua  Mather  ........  546 

Wilson,  George  O.,  Deposition  of  382 

Wilder,  Marshal  P.  & al.,  Case  of 537 

Wood,  Sami.  N.,  Case  of 566 

Testimony  of  . . . . . . . . . 685 

Worcester,  John,  Testimony  of 92-114 


AN  ACT 


FOR  SUPPLYING  THE  CITY  OF  BOSTON  WITH  PURE  WATER. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  in  General 

Court  assembled , and  by  the  authority  of  the  same , as  follows : — 

Section  1.  The  City  of  Boston  is  hereby  authorized,  b}7-  and 
through  the  agency  of  three  Commissioners,  to  be  appointed  in  the 
manner  hereinafter  provided,  to  take,  hold  and  convey,  to,  into  and 
through  the  said  city,  the  water  of  Long  pond,  so  called,  in  the 
towns  of  Natick,  Wayland  and  Framingham,  and  the  waters  which 
may  flow  into  and  from  the  same,  and  an}T  other  ponds  and  streams 
within  the  distance  of  four  miles  from  said  Long  pond,  and  any 
water-rights  connected  therewith  ; and  may  also  take  and  hold,  by 
purchase  or  otherwise,  any  lands  or  real  estate  necessary  for  laying 
and  maintaining  aqueducts  for  conducting,  discharging,  disposing 
of,  and  distributing  water,  and  for  forming  reservoirs  ; and  may 
also  take  and  hold  any  land  on  and  around  the  margin  of  said  Long 
pond,  not  exceeding  five  rods  in  width,  measuring  from  the  verge 
of  said  pond  when  the  same  shall  be  raised  to  the  level  of  eight 
feet  above  the  floor  of  the  flume,  at  the  outlet  thereof,  and  on  and 
around  the  said  other  ponds  and  streams  so  far  as  may  be  necessary 
for  the  preservation  and  purity  of  the  same,  for  the  purpose  of 
furnishing  a supply  of  pure  water  for  the  said  City7"  of  Boston. 

The  City  of  Boston  shall,  within  sixty  days  from  the  time  they 
shall  take  any  lands  or  ponds  or  streams  of  water,  for  the  purposes 
of  this  act,  file,  in  the  office  of  the  Registry  of  Deeds  for  the  county 
•where  the}7-  are  situate,  a description  of  the  lands,  ponds,  or  streams 
of  water  so  taken,  as  certain  as  is  required  in  a common  convey- 
ance of  lands,  and  a statement  of  the  purpose  for  which  taken  ; 
■which  said  description  and  statement  shall  be  signed  by  the  said 
mayor. 

Section  2.  The  said  city  may,  b}7-  and  through  the  same  agencj’, 
make  and  build  one  or  more  permanent  aqueducts  from  any  of  the 
aforesaid  water-sources,  to,  into  and  through  the  said  city,  and 
secure  and  maintain  the  same  by  any  works  suitable  therefor  ; may 
connect  the  said  water-sources  with  each  other ; may  erect  and 
maintain  dams  to  raise  and  retain  the  waters  therein  ; may  make 
and  maintain  reservoirs  within  and  without  the  said  city  ; may  make 
and  establish  such  public  hydrants  in  such  places  as  may  from  time 
to  time  be  deemed  proper,  and  prescribe  the  purposes  for  which 
they  may  be  used,  and  may  change  or  discontinue  the  same  ; may 
distribute  the  water  throughout  the  city,  and  for  this  purpose  may  lay 
down  pipes  to'  any  house  or  building  in  said  city,  the  owner,  or 
owners  thereof,  having  notice  and  not  objecting  thereto  ; may  regu- 
late the  use  of  the  said  water  within  and  without  the  said  city,  and 
establish  the  prices  or  rents  to  be  paid  therefor.  And  the  said  city 


VI 


Cochituate  Water  Act. 


may,  for  the  purposes  aforesaid,  carry  and  conduct  any  aqueducts, 
or  other  works  by  them  to  be  made  and  constructed,  over  or  under 
any  water-course,  or  any  street,  turnpike-road,  railroad,  highwajr, 
or  other  wa}T,  in  such  manner  as  not  to  obstruct  or  impede  travel 
thereon  ; and  may  enter  upon,  and  dig  up  an}-  such  road,  street,  or 
way,  for  the  purpose  of  laying  down  pipes  beneath  the  surface 
thereof,  and  for  maintaining  and  repairing  the  same  ; and,  in  gen- 
eral, may  do  an}'  other  acts  and  things  necessary,  or  convenient  and 
proper,  for  the  purposes  of  this  act. 

Sect.  3.  Three  Commissioners  shall  be  appointed  by  the  City 
Council,  who  shall,  during  their  continuance  in  office,  execute  and 
perform,  and  superintend  and  direct  the  execution  and  performance 
of  all  the  works,  matters  and  things  mentioned  in  the  preceding 
sections  which  are  not  otherwise  specially  provided  for  in  this  act ; 
they  shall  be  subject  to  such  ordinances,  rules  and  regulations,  in 
the  execution  of  their  said  trust,  as  the  City  Council  may,  from  time 
to  time,  ordain  and  establish,  not  inconsistent  with  the  provisions 
of  this  act  and  the  laws  of  this  Commonwealth.  They  shall  re- 
spectively hold  their  said  offices  for  the  term  of  three  years  next 
after  their  said  appointment,  unless  the  aqueducts  and  works  afore- 
said shall  be  sooner  completed  ; but  they,  or  either  of  them,  after 
having  had  an  opportunity  to  be  heard  in  his  or  their  defence,  may 
be  removed  at  an}^  time  by  a concurrent  vote  of  two-thirds  of  each 
branch  of  the  City  Council ; and  in  case  of  a vacancy  in  the  Board 
of  Commissioners,  by  death,  resignation  or  removal,  such  vacancy 
shall  be  filled  by  the  appointment  of  another  Commissioner,  in 
manner  aforesaid,  who  shall  hold  his  office  for  the  residue  of  the 
said  term  of  three  years,  with  all  the  powers,  and  subject  to  all  the 
restrictions,  aforesaid.  A major  part  of  said  Commissioners  shall 
be  a quorum  for  the  exercise  of  the  powers,  and  the  performance 
of  the  duties  of  the  said  office.  They  shall,  once  in  every  six 
months,  and  whenever  required  b}T  the  City  Council,  make  and  pre- 
sent, in  writing,  a particular  report  and  statement  of  all  their  acts 
and  proceedings,  and  of  the  condition  and  progress  of  the  works 
aforesaid. 

Sect.  4.  Before  the  appointment  of  the  Commissioners  afore- 
said, the  City  Council  shall  establish  and  fix  the  salaries  or  com- 
pensation to  be  paid  to  the  Commissioners  for  their  services,  and 
the  said  salaries  of  the  said  Commissioners,  so  established  and  fixed 
as  aforesaid,  shall  not  be  reduced  during  their  continuance,  re- 
spectively, in  said  office. 

Sect.  5.  Whenever  the  said  office  of  Commissioners  shall  cease, 
either  by  the  expiration  of  the  said  term  of  three  3-ears  from  the 
original  appointment,  or  b}-  the  completion  of  the  aqueducts  and 
works  mentioned  in  the  preceding  sections  of  this  act,  all  the 
rights,  powers  and  authority  given  to  the  City  of  Boston  b}r  this 
act  shall  be  exercised  by  the  said  city,  subject  to  all  the  duties, 
liabilities  and  restrictions  herein  contained,  in  such  manner  and 
by  such  agents,  officers  and  servants  as  the  Chy  Council  shall 
from  time  to  ordain,  appoint  and  direct. 

Sect.  6.  The  said  City  of  Boston  shall  be  liable  to  pa}-  all  dam- 
ages that  shall  be  sustained  b}T  any  persons  in  their  property  by  the 


COCaiTUATE  WATEii 


I 


taking  of  any  land,  water,  or  water-rights,  or  by  the  . . ^ 

of  any  aqueducts,  reservoirs,  or  other  works  for  the  cons  ruc  in® 
this  act.  -purposes  of 

And  if  the  owner  of  any  land,  water,  or  water-righ  h\ch. 
shall  be  taken  as  aforesaid,  or  other  person  who  shaM3’  ^ ^ . 
damage  as  aforesaid,  shad  not  agree  upon  the  damages  to  , 1 c , 
therefor,  he  may  apply  by  petition  for  the  assessment  of  hit^e 

said 
to 
are 


ages,  at  any  time  within  three  3Tears  from  the  taking  of  the§ 
land,  water,  or  water-rights  as  aforesaid,  and  not  afterwaroY 
the  Court  of  Common  Pleas  * in  the  county  in  which  the  samel 
situate  ; such  petition  may  be  filed  in  the  clerk’s  office  of  s^j^ 
Court,  in  vacation  or  in  term-time,  and  the  clerk  shall  thereupon 
issue  a summons  to  the  City  of  Boston,  returnable,  if  issued  i$ 
vacation,  to  the  then  next  term  of  the  said  Court,  and  if  in  term- 
time,  returnable  on  such  day  as  the  said  Court  shall  order,  to 
appear  and  answer  to  the  said  petition  ; the  said  summons  shall 
be  served  fourteen  days  at  least  before  the  return  day  thereof,  by 
leaving  a cop}T  thereof,  and  of  the  said'  petition,  certified  by  the 
officer  who  shall  serve  the  same,  with  the  Ma}ror  or  clerk  of  the 
said  city  ; and  the  said  Court  may,  upon  default  or  hearing  of  the 
said  city,  appoint  three  judicious  and  disinterested  freeholders  of 
this  Commonwealth  who  shall,  after  reasonable  notice  to  the 
parties,  assess  the  damages,  if  airv,  which  such  petitioner  ma}^ 
have  sustained  as  aforesaid ; and  the  award  of  the  said  freeholders, 
or  of  the  major  part  of  them,  being  returned  into  and  accepted  by 
the  said  Court,  shall  be  final,  and  judgment  shall  be  rendered,  and 
execution  issued  thereon,  for  the  prevailing  party,  with  costs, 
unless  one  of  the  said  parties  shall  claim  a trial  by  jury  as  herein- 
after provided. 

Sect.  7.  If  either  of  the  parties  mentioned  in  the  preceding 
section  shall  be  dissatisfied  with  the  amount  of  damages  awarded 
as  therein  expressed,  such  party  maj",  at  the  term  at  which  such 
award  was  accepted,  or  the  next  term  thereafter,  claim,  in  writing, 


a trial  in  said  Court,  and  have  a jury  to  hear  and  determine  at  the 
bar  of  said  Court  all  questions  of  fact  relating  to  such  damages, 
and  to  assess  the  amount  thereof;  and  the  verdict  of  such  jury 
being  accepted  and  recorded  by  the  said  Court,  shall  be  final  and 
conclusive,  and  judgment  shall  be  rendered  and  execution  issued 
thereon  ; and  costs  shall  be  recovered  b}T  the  said  parties  respect- 
ively, in  the  same  manner  as  is  provided  b}^  law,  in  regard  to 
proceedings  relating  to  the  laying  out  of  highwaj’s. 

Sect.  8.  No  application  shall  be  made  to  the  Court  for  the 
assessment  of  damages  for  the  taking  of  any  water-rights,  until 
the  water  shall  be  actually  withdrawn  or  diverted  by  the  said  city 
under  the  authority  of  this  act ; and  any  person  or  corporation 
whose  water-rights  may  be  thus  taken  and  affected,  may  make  his 
application  aforesaid  at  any  time  within  three  }^ears  from  the  time 
when  the  waters  shall  be  first  actually  withdrawn  or  diverted  as 
aforesaid.  | 


* Now  the  Superior  Court. 

f See  sect.  2,  chap.  187,  1849,  p.  200,  and  chap.  316,  1850,  p.  202. 


yin  CodHXUAZJL  ^ Ilct. 

Sect.  9.  Ip^or  the  purpose  of  defraying  all  the  costs  and  expenses 
of  such  lancfclS?  estates,  waters  and  water-rights,  as  shall  be  taken, 
purchased  (for  held  for  the  purposes  mentioned  in  this  act,  and  of 
constructing  all  aqueducts  and  works  necessary  and  proper  for 
the  accomplishment  of  the  said  purposes,  and  all  expenses  inci- 
dent thereto,  the  City  Council  shall  have  authority  to  issue,  from 
time  ty>  time,  notes,  scrip,  or  certificates  of  debt,  to  be  denomi- 
nated on  the  face  thereof,  u Boston  Water  Scrip,”  to  an  amount 
not  exceeding  in  the  whole  the  sum  of  three  millions  of  dollars, 
bearing  interest  at  a rate  not  exceeding  the  legal  rate  of  interest 
in  ffiis  Commonwealth ; and  said  interest  shall  be  pa}r able  semi- 
amualty,  and  the  principal  shall  be  payable  at  periods  not  more 
Ban  forty  years  from  the  issuing  of  the  said  scrip,  notes  or  certifi- 
cates respectively.  And  the  said  City  Council  may  sell  the  same, 
or  any  part  thereof,  from  time  to  time,  at  public  or  private  sale,  or 
pledge  the  same  for  money  borrowed  for  the  purposes  aforesaid, 
on  such  terms  and  conditions  as  the  said  City  Council  shall  judge 
proper.* 

Sect.  10.  In  addition  to  the  sum  of  three  millions  of  dollars 
mentioned  in  the  preceding  section,  the  said  City  Council  may, 
whenever  and  so  far  as  may  be  necessary,  issue  and  dispose  of 
notes,  scrip,  or  certificates  of  debt,  in  the  manner  prescribed  in 
the  preceding  section,  to  meet  all  payments  of  interest  which  may 
accrue  upon  any  scrip  by  them  issued  : provided , however , that  no 
scrip  shall  be  issued  for  the  payment  of  interest  as  aforesaid,  after 
the  expiration  of  two  years  from  the  completion  of  said  aqueducts 
and  other  works  ; but  payment  of  all  interest  that  shall  accrue 
after  that  time  shall  be  made  from  the  net  income  rents,  and  re- 
ceipts for  the  use  of  the  Tvater,  if  they  shall  be  sufficient  for  that 
purpose,  and,  if  not,  then  the  payment  of  the  deficiency  shall  be 
otherwise  provided  for  by  the  Chy  Council.  All  notes,  scrip,  and 
certificates  of  debt  to  be  issued  as  aforesaid  shall  be  signed  by 
the  Treasurer  and  Auditor,  and  countersigned  by  the  Ma}ror  of 
the  said  city,  and  a record  of  all  such  notes,  scrip,  and  certificates 
shall  be  made  and  kept  by  the  said  Treasurer  and  Auditor  respect- 
ively. 

Sect.  11.  The  City  Council  shall,  from  time  to  time,  regulate 
the  price  or  rents  for  the  use  of  the  water,  with  a view  to  the  pa}"- 
ment,  from  the  net  income,  rents  and  receipts  therefor,  not  onty  of 
the  semi-annual  interest,  but  ultimately  of  the  principal  also  of  the 
“ Boston  Water  Scrip,”  so  far  as  the  same  may  be  practicable  and 
reasonable.  And  the  said  net  surplus  income,  rents  and  receipts, 
after  deducting  all  expenses  and  charges  of  distribution,  shall  be 
set  apart  as  a Sinking  Fund,  and  shall  be  appropriated  for  and 
towards  the  payment  of  the  principal  and  interest  of  the  said 
scrip ; and  shall,  under  the  management,  control  and  direction  of 
the  Mayor,  Treasurer  and  Auditor  of  the  city^,  or  the  major  part 
of  them  for  the  time  being,  who  shall  be  trustees  of  the  said  fund, 
be  applied  solely  to  the  use  and  purpose  aforesaid,  until  the  said 
scrip  shall  be  fully  paid  and  discharged.  And  the  said  trustees 


See  chap.  33,  1848,  p.  199,  and  sect.  1,  chap.  187,  1849,  p.  200. 


COOHITUATE  WATEjrt  ^/f. 

\( 

shall,  whenever  thereto  required  by  the  City  Counted,  render  a 
just,  true  and  full  account  to  the  said  City  Council  of  all  their 
receipts,  pa}Tments  and  doings,  under  the  provisions  of  ithis  section. 

Sect.  12.  At  any  time  after  the  expiration  of  two  wears  from 
the  completion  of  the  works  mentioned  in  the  second  auction  of 
this  act,  and  before  the  reimbursement  of  the  principal  of  the 
“Boston  Water  Scrip”  hereinbefore  mentioned,  if  the  surplus  in- 
come and  receipts  for  the  use  of  the  water  distributed  unoW  the 
provisions  of  this  act,  at  the  price  established  by  the  City  Cowmcil, 
after  deducting  all  expenses  and  charges  of  distribution,  shali-V  for 
any  two  successive  }7ears,  be  insufficient  to  pay  the  accruing 
interest  on  the  said  scrip,  then  the  Supreme  Judicial  Court,  on  VYhe 
petition  of  one  hundred  or  more  of  the  legal  voters  of  the  sand 
cit}’-,  praying  that  the  said  price  may  be  raised  and  increased  so  faA 
as  may  be  necessary  for  the  purpose  of  paying,  from  the  said  sur-\ 
plus  income  and  receipts,  the  said  accruing  interest,  and  upon  due 
notice  of  the  pendency  of  such  petition  given  to  the  said  city  in 
such  manner  as  the  said  Court  shall  order,  may  appoint  three  Com- 
missioners, who,  upon  due  notice  to  the  parties  interested,  may 
raise  and  increase  the  said  price,  if  they  shall  judge  proper,  so  far 
as  may  be  necessary,  in  their  judgment,  for  the  purpose  aforesaid, 
and  no  further.  And  the  award  of  said  Commissioners,  or  the 
major  part  of  them,  being  returned  to  said  Court,  at  the  then  next 
term  thereof,  for  the  county  of  Suffolk,  and  accepted  by  the  said 
Court,  shall  be  binding  and  conclusive,  for  the  term  of  three  years 
next  after  the  said  acceptance,  and  until  the  price  so  fixed  by  the 
Commissioners  shall,  after  the  expiration  of  said  term,  be  changed 
or  altered  by  the  City  Council. 

Sect.  13.  If  the  surplus  income  and  receipts  for  the  use  of  the 
water  distributed  under  the  provisions  of  this  act,  at  the  price  es- 
tablished by  the  City  Council,  after  deducting  all  expenses  and 
charges  of  distribution,  shall,  for  any  two  successive  years,  be 
more  than  sufficient  to  pay  the  accruing  interest  on  the  “Boston 
Water  Scrip,”  hereinbefore  mentioned,  then  the  Supreme  Judicial 
Court,  on  the  petition  of  one  hundred  or  more  of  the  legal  voters 
of  the  said  city,  who  may  deem  the  said  price  unreasonabty  high, 
and  pray  for  a reduction  thereof,  and  upon  due  notice  of  the  pen- 
dency of  said  petition  given  to  the  said  city  in  such  manner  as  the 
said  Court  shall  order,  may  appoint  three  Commissioners,  who, 
upon  due  notice  to  the  parties  interested,  may,  if  they  shall  judge 
proper,  reduce  the  price  established  by  the  City  Council : provided , 
that  such  reduction  shall  not  be  so  great  that  the  surplus  income 
and  receipts  aforesaid  will,  in  the  judgment  of  the  said  Com- 
missioners, be  thereafter  insufficient  for  the  payment  of  the  said 
accruing  interest.  And  the  award  of  the  said  Commissioners,  or 
the  major  part  of  them,  being  returned  and  accepted  as  mentioned 
in  the  preceding  section,  shall  be  binding  and  conclusive,  in  the 
same  manner,  and  to  the  same  extent,  as  therein  provided  in 
regard  to  awards  made  pursuant  to  the  provisions  of  that  section. 

And  the  said  Court  may,  at  their  discretion,  order  the  costs  on 
such  petitions  as  are  mentioned  in  this  and  the  preceding  section, 
and  of  the  proceedings  thereon,  or  any  part  thereof,  to  be  paid 


Cc^  itjjate  Water  Act. 

7 

by  either  of  t'he  said  parties,  and  may  enter  judgment  and  issue 
execution  ttyhrefor  accordingly. 

Sect.  14/;  The  occupant  of  any  tenement  shall  be  liable  for  the 
payment  c/f  the  price  or  rent  for  the  use  of  the  water  in  such  tene- 
ment ; arid  the  owner  thereof  shall  be  also  liable  if,  on  being  noti- 
fied of  jfuch  use,  he  does  not  object  thereto ; and  if  any  person  or 
person^  shall  use  any  of  the  said  water,  either  within  or  without 
the  city?  without  the  consent  of  the  city,  an  action  of  trespass  on 
the  c£ise  may  be  maintained  against  him  or  them,  by  the  said  city, 
for  the  recovery  of  damages  therefor : provided,  however , that  this 
act  shall  not  be  so  construed  as  to  prevent  the  inhabitants  of 
Natick,  Framingham,  Sherburne  and  Wayland,  from  using  so  much 
of  the  water  herebj7  granted  as  shall  be  necessary  for  extinguishing 
fires,  and  for  all  ordinary  household  purposes,  under  such  regula- 
tions of  the  said  City  Council  as  may  be  essential  for  the  preser- 
vation of  the  purity  of  the  same. 

Sect.  15.  If  any  person  or  persons  shall  wantonly  or  maliciously 
divert  the  water,  or  any  part  thereof,  of  an}^  of  the  ponds,  streams 
or  water-sources  which  shall  be  taken  by  the  city  pursuant  to  the 
provisions  of  this  act,  or  shall  corrupt  the  same,  or  render  it 
impure,  or  destroy  or  injure  any  dam,  aqueduct,  pipe,  conduit, 
hydrant,  machinery,  or  other  property  held,  owned  or  used  by  the 
said  city  by  the  authority  and  for  the  purposes  of  this  act,  every 
such  person  or  persons  shall  forfeit  and  pay  to  the  said  city  three 
times  the  amount  of  the  damages  that  shall  be  assessed  therefor, 
to  be  recovered  by  any  proper  action.  And  every  such  person  or 
persons  may,  moreover,  on  indictment  and  conviction  of  either  of 
the  wanton  and  malicious  acts  aforesaid,  be  punished  by  fine,  not 
exceeding  one  thousand  dollars,  and  imprisonment  not  exceeding 
one  year.* 

Sect.  16.  The  said  City  of  Boston  is  hereby  authorized  to  pur- 
chase and  hold  all  the  property,  estates,  rights  and  privileges  of  the 
Aqueduct  Corporation  incorporated  by  an  act  passed  February 
twenty-seventh,  in  the  }Tear  one  thousand  seven  hundred  and  ninety- 
five,  and  by  any  convenient  mode  may  connect  the  same  with  their 
other  works. 

Sect.  17.  The  Mayor  and  Aldermen  of  the  City  of  Boston  shall 
notify  and  warn  the  legal  voters  of  the  said  city  to  meet  in  their 
respective  wards  on  such  day  as  the  said  Mayor  and  Aldermen 
shall  direct,  not  exceeding  thirty  da}*s  from  and  after  the  passing 
of  this  act,  for  the  purpose  of  giving  their  written  votes  upon  the 
question,  "whether  they  will  accept  the  same  ; and  if  a majority  of 
the  votes  so  given  upon  the  question  aforesaid  shall  be  in  the 
negative,  this  act  shall  be  null  and  void.f 

Sect.  18.  This  act  shall  take  effect  from  and  after  its  passage. 


* Increased  to  10  years. 

f This  act  was  accepted  April  13th,  1846,  by  a vote  of  4,637  yeas  to  348 
nays.  (Records  of  returns  of  votes  from  the  several  wards,  April  13th, 
1846.) 


/ 


Cochituate  Water  act. 


House  of  Representatives,  Marcbj  30,  1846. 

Passed  to  be  enacted.  \ 

SAMUEL  H.  W ALLEY,  Jr.,  Speaker. 

In  Senate,  March  30,\l846. 
W.  B.  CALHOUN,  President. 

\ 

GEORGE  N.  BRIGGS!\ 


Passed  to  be  enacted. 

March  30,  1846. 

Approved. 


AN  ACT 


TO  authorize  the  city  of  boston  to  obtain  an  additional 

SUPPLY  OF  PURE  WATER. 


Be  it  enacted , etc.,  as  follows:  — 

Section  1.  The  City  of  Boston  is  hereby  authorized,  by  and 
through  the  agency  of  the  Cochituate  Water  Board,  to  take,  hold, 
and  convey  to,  into  and  through  said  city,  all  the  water  of  Sud- 
bury river,  so  called,  said  water  to  be  taken  at  any  point  or  points 
within  the  town  of  Framingham,  or  higher  up  on  said  river,  and 
the  water  of  Farm  pond,  so  called,  in  said  town  of  Framingham, 
and  the  waters  which  may  flow  into  and  from  said  river  and  pond 
and  to  take  any  water-rights  in  or  upon  said  river  or  pond,  in  or 
above  the  town  of  Framingham,  or  connected  therewith. 

Said  city  may  also  take  and  hold,  by  purchase  or  otherwise,  in 
connection  with  the  said  sources  of,  supply,  any  lands  and  real  es- 
tate necessary  for  increasing  or  preserving  the  purity  of  the  water, 
or  for  laying,  building  and  maintaining  aqueducts,  water-courses, 
reservoirs,  dams,  buildings,  machine^  and  other  structures  and 
appliances,  with  their  accessories,  for  conducting,  elevating,  puri- 
fying, storing,  discharging,  disposing  of  and  distributing  water ; 
and  may  also  take  and  hold  any  land,  excepting  any  in  the  town  of 
Framingham  heretofore  taken  or  purchased  by  any  railroad  com- 
pany, on  the  margin  of  said  sources  of  supptyj  not  exceeding  five 
rods  in  width  from  the  high-water  line  of  said  river,  storage  reser- 
voirs or  pond,  so  far  as  may  be  necessary  in  the  opinion  of  said 
Cochituate  Water  Board,  for  the  preservation  and  purity  of  the 
same,  for  the  purpose  of  furnishing  a supply  of  pure  water  for 
the  City  of  Boston. 

Sect.  2.  For  the  purposes  of  this  act,  the  said  city  may  make 
and  build  one  or  more  permanent  aqueducts  from  the  aforesaid 
water-sources  to  Chestnut  Hill  reservoir,  so  called,  or  to  any  other 
reservoir  owned  by  said  city,  and  secure  and  maintain  the  same  by 


Cc  situate  Water  Act. 


any  works  suitable  therefor ; may  connect  the  said  water-sources 
with  Lake  Cochituate  ; may  erect  and  maintain  dams,  or  may  in- 
crease the  neiglit  of,  and  strengthen  and  maintain  existing  dams 
to  raise  the  water  above  the  same,  or  to  form  storage  reservoirs  ; 
ma}T  make  and  maintain  reservoirs  within  and  without  said  city ; 
may  erect  and  maintain  buildings  and  machinery  for  elevating  the 
water,  and  lay  down  pipes  for  conducting  the  same  ; may  build  and 
maintain  filters,  or  other  means  of  purifj-ing  the  water.  And  the 
city  may,  for  the  purposes  aforesaid,  carry  and  conduct  any  aque- 

?t,  or  other  work,  by  it  to  be  made  and  constructed,  under  or 
r any  water-course,  or  any  street,  turnpike  road,  railroad,  high- 
r or  other  way,  in  such  manner  as  not  to  unnecessary  obstruct 
impede  travel  thereon;  and  may  enter  upon  and  dig  up  any 
fsuch  rdad,  street  or  way,  for  the  purpose  of  laying  down  pipes  be- 
neath the  surface  thereof,  and  for  maintaining  and  repairing  the 
same  ; and,  in  general,  ma}T  do  any  other  acts  and  things  necessary 
or  convenient  and  proper  for  the  purposes  of  this  act. 

Said  City  of  Boston,  in  entering  upon  and  digging  up  any  such 
road,  street  or  way  of  public  travel,  shall  be  subject  to  such  reason- 
able regulations  as  shall  be  made  by  the  selectmen  of  the  towns 
wherein  such  work  shall  be  performed,  for  the  protection  of  their 
rights  of  drainage  and  sewerage  therein. 

Sect.  3.  The  City  of  Boston  is  hereby  further  authorized,  by 
and  through  the  agency  of  said  Cochituate  Water  Board,  if  said 
Board  shall  deem  expedient,  to  store  and  distribute  water  for 
maintaining  and  equalizing  the  flow  of  water  in  the  river  selected 
by  said  city  as  its  source  of  suppty,  or  in  the  rivers  into  which  said 
river  may  discharge  ; and  for  this  purpose  said  city  may  take  and 
hold  such  land  and  real  estate  as  may  be  necessary  for  building 
and  maintaining  dams,  reservoirs  or  other  structures  and  appli- 
ances for  storing  and  discharging  water.  And  the  said  city  may, 
through  the  same  agency,  make  and  build  such  dams,  reservoirs 
and  other  structures  and  appliances,  at  an}^  point  or  points  upon 
the  said  Sudbury  river,  and  upon  any  and  all  streams  flowing  into 
the  same. 

Sect.  4.  Nothing  contained  in  this  act  shall  be  so  construed  as 
to  authorize  the  City  of  Boston  to  reduce  the  water  in  Sudbury 
river  below  a sufficient  height  to  maintain  at  all  times  a running 
stream  therein,  which  shall  flow  at  least  one  and  one-half  million 
gallons  a day  for  each  and  every  day  in  the  year,  or  to  draw  from 
Farm  pond  or  Sudbury  river  into  Lak§  Cochituate  when  the  water 
runs  over  the  dam  at  Lake  Cochituate,  or  to  prevent  the  inhabi- 
tants of  the  towns  of  Framingham,  Ashland,  Southborough,  Hud- 
son and  Westborough  from  taking  from  the  Sudbury  or  Assabet 
rivers  or  Farm  pond  so  much  of  the  water  liereb}”  granted  as  shall 
be  necessary  for  extinguishing  fires,  and  for  all  ordinary  domestic 
and  household  purposes,  and  for  the  generation  of  steam,  or  from 
cutting  and  carrying  away  ice  from  said  pond ; or  as  to  prevent 
the  Boston  and  Albanj’  Railroad  Company,  or  the  Mansfield  and 
Framingham  Railroad  Company,  or  the  Boston,  Clinton  and- Fitch- 
burg Railroad  Company  from  taking  water  from  Farm  pond,  for 
use  in  locomotive  or  other  engines,  or  for  other  railroad  purposes, 


18* 


Cochituate  Water  xin 

under  such  regulations  of  the  City  Council  of  the  CitV  °f  Boston 
as  ma}’’  he  essential  for  the  preservation  of  the  purity  of  the  same. 

Sect.  5.  The  City  of  Boston  shall  be  liable  to  pay  all  damages 
that  shall  be  sustained  by  any  persons  in  their  property?  by  the 
taking  of  or  injury  to  an}^  land,  real  estate,  water  or  wateY-rights, 
or  by  the  flowage  of  the  lands  of  any  persons,  or  by  the  interfer- 
ence with,  or  injury  to  any  use  or  enjoyment  of  the  water  of  said 
river  to  which  any  person,  at  the  time  of  such  taking,  is  legally 
entitled,  or  by  any  other  doings  under- this  act;  and  in  regam  to 
such  taking,  injury,  interference  and  flowage,  and- the  ascertain* 
ment  and  paj^ment  of  all  such  damages,  the  said  City’  of  Bostoi??  • 
and  all  persons  claiming  damages,  shall  have  all  the  rights,  imV 
mu  ities  and  remedies,  and  be  subject  to  all  the  duties,  liabilities^ 
and  regulations  which  are  provided  in  the  one  hundred  and  sixty-  \ 
seventh  chapter  of  the  acts  of  the  year  eighteen  hundred  and  \ 
forty-six,  and  the  three  hundred  and  sixteenth  chapter  of  the  year  ' 
eighteen  hundred  and  fifty. 

Sect.  6.  Whenever  the  City  of  Boston  shall  dig  up  any  street 
or  way,  as  aforesaid,  it  shall  restore  the  same  in  as  good  order  and 
condition  as  the  same  shall  be  in  when  such  digging  commenced  ; 
and  the  City  of  Boston  shall  at  all  times  indemnify  and  save  harm- 
less the  several  towns  within  which  such  street  or  way  may^  be, 
against  all  damages  which  may  be  recovered  against  them  respect- 
ively, and  shall  reimburse  to  them  all  expenses  which  they  shall 
incur  by  reason  of  any  defect  or  want  of  repair  in  any  street  or 
way  caused  by  the  construction  of  any  of  said  works,  or  laying  of 
said  pipes,  or  by  the  maintaining  or  repairing  the  same  : provided , 
that  said  city  shall  have  due  and  reasonable  notice  of  all  claims 
for  such  damages  or  injury,  and  opportunity  to  make  a legal  de- 
fence thereto.  # 

Sect.  7.  If  any  person  or  persons  shall  wantonly  or  malicious- 
ly divert  the  water,  or  any  part  thereof,  of  any  of  the  rivers,  ponds, 
streams  or  water-sources,  which  shall  be  taken  by  the  city,  pur- 
suant to  the  provisions  of  this  act,  or  shall  corrupt  the  same,  or 
render  it  impure,  or  destroy  or  injure  any  dam,  aqueduct,  pipe, 
conduit,  hydrant,-  machine^',  or  other  property  held,  owned  or 
used  by  the  said  city,  by  the  authority  and  for  the  purposes  of  this 
act,  every  such  person  or  persons  shall  forfeit  and  pay  to  the  said 
city  three  times  the  amount  of  the  damages  that  shall  be  assessed 
therefor,  to  be  recovered  by  any  proper  action.  And  every  such 
person  or  persons  may,  moreover,  on  indictment  and  conviction  of 
either  of  the  wanton  and  malicious  acts  aforesaid,  be  punished  by 
fine  not  exceeding  one  thousand  dollars,  and  imprisonment  not  ex- 
ceeding one  year,  or  by  confinement  to  hard  labor  in  the  State 
Prison  for  a term  not  exceeding  ten  years. 

Sect.  8.  The  City  of  Boston  is  authorized,  if  said  city  shall 
deem  it  expedient  so  to  do,  to  supply  the  towns  of  Framingham, 
Kewton,  West  Roxbury,  Brighton  and  Brookline,  or  either  of  them, 
with  w'ater,  in  such  quantities,  under  such  conditions,  and  upon 
such  terms  as  may  be  agreed  upon  between  said  city  and  said 
towns,  or  either  of  them ; and  such  towns  shall  respectively  have 
power  to  distribute  the  water  so  supplied  among  the  inhabitants  of 
said  towns. 


^ iV 


UuFcituate  Water  Act. 


vqEoT*  Commonwealth  may  take  and  convey  water  from 

said  Sudbury  riVer,  or  any  of  the  reservoirs  to  be  constructed  by 
said  city , tQ  an(j  for  use  0p  ^he  state  Normal  School  buildings, 
m said  to^n  0f  Framingham. 

feECT*  i0.  This  act  shall  take  effect  upon  its  passage. 

PI ouse  of  Representatives,  April  6,  1872. 
•^a^sed  to  be  enacted. 

JOHN  E.  SANFORD,  Speaker. 
In  Senate,  April  6,  1872. 

Passed  to  be  enacted. 

HORACE  H.  COOLIDGE,  President . 


April  8,  1872. 

Approved. 


W.  B.  WASHBURN. 


In  the  matter  of  the  taking  of  the  water 
of  Sudbury  River  and  its  tributaries  by 
the  City  of  Boston. 


Hearing  before  William  G.  Russell,  James  B.  Francis  and 
Charles  A.  Stevens,  Commissioners  appointed  by  the  Supe- 
rior Court  for  Middlesex  County  to  assess  damages. 


Boston,  Monday , Sept.  11th , 1876 , 11  A.  M. 

THE  ESSEX  COMPANY,  PETITIONERS  FOR  AS- 
SESSMENT OF  DAMAGES, 
vs. 

THE  CITY  OF  BOSTON. 

OPENING  ARGUMENT  EOR  PETITIONERS  BY  J.  J.  STORROW,  Esq. 

Mr.  Chairman  and  Gentlemen : I will  first  read  the 
petition  : — 

The  petitioners  respectfully  represent  as  follows : They  are  a 

corporation  created  and  existing  under  the  laws  of  Massachusetts  ; 
they  were  incorporated  by  chapter  163  of  the  acts  of  the  year  1845, 
approved  March  20,  1845  ; said  charter  was  amended  by  chapter 
119  of  the  acts  of  the  year  1846,  approved  March  18,  1846,  and  by 
chapter  295  of  the  acts  of  the  year  1848,  approved  May  9,  1848, 
said  corporation  was  duly  organized  under  said  first-mentioned  act, 
and  said  amendments  were  duly  accepted  and  acted  upon  as  re- 
quired by  law,  and  ever  since  the  respective  dates  of  said  acts  the 
said  corporation  has  been  entitled  to  and  has  actually  exercised 
and  enjoyed  the  rights  conferred  by  said  charter  and  amendments. 

They  afterwards  acquired  by  purchase  and  in  fee  a large  amount 
of  land  in  Methuen  and  in  Andover,  in  Essex  County ; and  among 
other  lands  they  so  acquired  by  grant  from  the  owners  thereof 
and  became  seized  in  fee  simple  of  the  following  parcels,  which  are 
within  the  present  limits  of  the  city  of  Lawrence,  in  Essex  County, 
on  the  north  side  of  the  Merrimack  river,  viz  : all  the  land  bounded 


2 


Essex  Company. 


south  by  the  Merrimack  river,  east  by  the  Spicket  river,  north  by 
the  old  road  leading  from  Haverhill  to  Lowell,  now  known  as 
Haverhill  street,  west  by  the  old  road  leading  from  said  Lowell 
road  to  the  ferry  over  the  Merrimack,  commonly  known  as  Bod-' 
well  or  Tower  Hill  Ferry,  about  three-fourths  of  a mile  above  their 
dam,  excepting  two  small  parcels  not  touching  the  river,  containing 
about  six  acres  each  and  belonging  to  Fairfield,  White  and  Bayley, 
respectively,  and  containing  about  six  hundred  acres  more  or 
less. 

On  the  south  side  of  the  Merrimack  river  all  the  land  bounded 
on  the  north  by  the  said  river,  on  the  east  and  southeast  by  the 
Shawshine  river,  from  its  mouth  to  the  point  where  the  river  road 
and  the  road  hereinafter  mentioned  diverge,  southeast  and  south 
b}r  the  road  leading  from  said  point  on  the  Shawshine  river  to 
Lowell  by  the  John  Poor  tavern,  west  by  land  of  Theodore  Bar- 
nard, about  three-fourths  of  a mile  above  the  bridge  and  dam  and 
a little  above  said  Bod  well’s  Ferry. 

They  have  also  acquired,  paid  for  and  own  the  right  to  flow  all 
the  lands  above  their  dam  and  on  both  sides  of  the  river  which  are 
flowed  by  maintaining  their  dam  at  such  height  as  it  now  is  and  as 
they  are  entitled  to  maintain  the  same  at  under  their  charter. 

The  Essex  Company  have  sold  and  conveyed  portions  of  said 
real  estate,  but  now  own  in  fee  portions  of  the  same,  and  among 
other  parcels  own  the  following : — 

On  the  north  side  of  the  Merrimack  river,  their  dam  and  the 
abutments  and  wing- walls  thereof  and  land  under  and  adjoining 
the  same ; their  canal,  canal-gates,  gate-houses,  locks,  inlets  and 
outlets  thereof,  and  the  walls  and  margins  of  the  same,  and  the 
land  under  the  same  ; a parcel  bounded  east  by  Broadway  and  the 
railroad,  and  on  all  other  sides  by  the  river,  mill-pond  and  canal, 
being  a parcel  upon  which  the  north  end  of  their-  dam  abuts  ; also 
all  the  shores  and  margins  of  the  river  from  thence  to  the  western 
limit  of  their  said  original  purchase.  Another  parcel,  suitable  for 
a mill-site,  bounded  southerly  by  the  Merrimack  river,  east  by  the 
Spicket  river,  north  by  their  main  canal,  west  by  William  C.  Carter’s 
mill-site,  containing  about  five  acres. 

On  the  south  side  of  said  Merrimack  river  their  dam,  with  the 
abutments  and  wing-walls  thereof,  their  canal,  locks,  gates,  gate- 
houses, walls  and  weirs,  with  the  land  under  and  adjoining  the 
same  and  the  margins  thereof ; a parcel  bounded  east  by  Broad- 
way, south  bjr  Rowe  street  and  Shattuck  street,  and  north  and 
west  by  the  river,  being  the  parcel  upon  which  the  south  end  of  their 
dam  abuts ; also  all  the  margin  and  shores  of  the  Merrimack 
river,  from  thence  westwardly  to  the  extreme  western  limit  of  their 
said  original  purchase  ; also  about  three  hundred  acres  near  to  the 
above  parcel,  and  bounded  on  the  east  by  said  Broadway ; also 
the  following  land,  suitable  and  intended  for  mill-sites,  for  the  use 
of  the  w’ater  and  water-power  furnished  by  said  Merrimack  river 
and  dam,  viz. : All  the  land  bounded  south  by  Merrimack  street, 
formerly  known  as  the  old  river  road,  to  North  Andover,  east  and 
southeast  by  Shawshine  river,  north  by  the  Merrimack  river,  west  by 
the  Essex  Company’s  Union  mill-site,  excepting  a parcel  containing 


Petition. 


3 


about  one  hundred  thousand  square  feet,  heretofore  sold  to  the 
Lawrence  Gas  Company,  next  east  of  the  new  bridge  over  the 
Merrimack  river,  being  a strip  about  a mile  long,  and  upwards  of 
four  hundred  feet  wide,  containing  about  fifty-five  acres,  more  or 
less ; also  the  said  Union  mill-site,  about  three  hundred  feet 
square,  between  said  parcel  and  the  mill-site  of  Henry  Arnold, 
and  now  improved  by  said  Essex  Company  by  a mill,  the  power  of 
which  is  furnished  by  water  from  said  canal ; also  another  mill-site 
next  adjoining  easterly  the  railroad  bridge  across  the  Merrimack 
river  about  one  hundred  and  twenty  feet  front  on  the  river  and 
canal,  and  about  three  hundred  feet  wide. 

And  thereafter  they  constructed  a dam  across  said  Merrimack 
river  at  Bodwell’s  Falls,  reaching  from  said  parcel  of  land  which 
they  owned  on  the  south  side  of  said  river  to  the  said  parcel,  which 
they  owned  on  the  north  side  thereof ; and  thereby  they  created 
from  the  water  flowing  in  said  river  a water-power  to  use,  to  sell, 
and  to  lease  to  other  persons  and  corporations  for  manufacturing 
and  mechanical  purposes,  and  for  the  uses  mentioned  in  their 
charter.  And  for  the  purposes  aforesaid  as  well  as  for  the  other 
purposes  named  in  their  said  charter,  they  have  constructed  canals 
on  each  side  of  said  river  entirely  through  their  own  lands  pur- 
chased by  them  as  aforesaid,  whereby  the  water  raised  by  said 
dam  is  conducted  to  various  portions  of  said  lands  used  and 
intended  to  be  used  as  mill-sites.  The  said  dam  and  the  said 
canal  on  the  north  side  of  said  river  were  constructed  and  com- 
pleted before  the  year  1852,  and  have  been  continually  maintained 
ever  since ; and  the  said  banal  on  the  south  side  of  said  river  was 
.constructed  in  the  year  1867,  and  has  been  since  continually 
maintained ; and  said  dam,  canals,  and  the  locks  connected 
therewith,  always  have  been,  and  now  are,  the  property  of  said 
Essex  Company.  In  said  constructions  they  have  expended 
upwards  of  six  hundred  thousand  dollars,  and  they  have  also 
expended  in  New  Hampshire  more  than  one  hundred  thousand 
dollars  in  improving  the  power  of  said  Merrimack  river  under  and 
according  to  the  first  section  of  said  chapter  119  of  the  acts  of  the 
year  1846. 

They  have  sold  and  leased  to  various  persons  and  corporations 
portions  of  their  said  land  to  be  used  by  the  latter  as  mill-sites, 
and  for  the  erection  of  dwelling-houses  for  operatives  and  for 
other  purposes,  and  have  granted  to  the  purchasers  of  said  mill- 
sites,  for  valuable  considerations,  the  right  to  draw  from  the  canal 
of  this  corporation  nearest  thereto,  and  through  the  land  granted, 
during  each  second  of  time  in  not  more  than  sixteen  hours  per 
day,  a definite  number  of  cubic  feet  of  water ; but  the  total 
amount  so  granted  is  much  less  than  the  amount  of  water  which 
flows  in  the  Merrimack  river  above  the  entrance  of  the  Concord 
river,  and  all  the  rest  of  the  water-power  created  as  aforesaid,  is 
absolutely  owned  by  said  Essex  Company.  Said  Essex  Compan}T 
also  owns,  at  said  Lawrence,  more  than  five  hundred  acres  of 
land,  and  as  part  of  it,  owns  land  suitable  for  and  intended  to  be 
used  as  mill-sites,  amply  sufficient  for  the  convenient  and  profita- 
ble use  of  all  the  water  flowing  to  their  dam,  and  whicli  would 


4 


Essex  Company. 


flow  to  it  except  for  the  obstructions  and  takings  by  the  City  of 
Boston  hereinafter  mentioned. 

And  so  the  Essex  Company  say  that  they  are  entitled  to  have 
the  water  of  the  Merrimack  river,  at  Lawrence,  flow  to  their  dam, 
and  through  their  canals  without  the  obstruction,  taking  and 
hindrance  hereinafter  mentioned,  in  order  that  they  may  freely 
use,  sell,  or  lease  to  others  to  be  used,  the  water-power  so  by  them 
created  as  aforesaid ; and  that  the  said  water-power,  and  that  the 
said  dam,  and  that  the  said  canals,  and  that  the  said  mill-sites  and 
other  land  owned  by  them  at  Lawrence  are  their  property,  to  be 
by  them  used  or  leased  or  sold  as  they  may  see  fit,  and  that  a 
large  part  of  the  value  thereof,  and  of  each  part  thereof,  depends 
upon  the  amount  of  water  flowing  in  said  river,  and  which  comes 
to  their  said  dam. 

They  have  freely,  exclusively,  and  adversely,  to  all  persons,  by 
themselves,  their  grantees  and  lessees  as  aforesaid,  so  enjoyed  all 
the  water  of  said  river  naturally  there  flowing  without  let  or 
hindrance  of  any  person  whatever  for  more  than  twenty  consecu- 
tive years  prior  to  the  taking  and  disturbance  hereinafter  men- 
tioned. 

Farm  pond  is  a tributary  of  the  Sudbury  river,  and  the  Sud- 
bur}1,  river  is  a tributary  of  the  Concord  river,  and  the  Concord 
river  flows  into  the  Merrimack  river  above  Deer  Jump  Falls  and 
above  said  dam  of  your  petitioners,  so  that  all  the  water  of  said 
Farm  pond  and  said  Sudbury  river,  before  the  acts  of  the  City  of 
Boston  hereinafter  complained  of,  did  flow,  and,  but  for  said  acts 
and  obstructions  still  would  flow,  in  and' form  part  of  said  Merri- 
mack river,  and  come  to  the  dam  of  the  petitioners  there  to  be 
enjoyed  by  them  as  aforesaid. 

On  or  about  the  twenty-first  day  of  January,  A.  D.  1875,  and 
within  three  years  last  past,  the  City  of  Boston,  by  and  through 
the  agency  of  the  Cochituate  Water  Board,  acting  under  and  by 
virtue  of  chapter  177  of  the  acts  of  the  year  1872,  approved  April 
8,  1872,  did  actually  withdraw  and  divert,  and  did  take  for  the 
sole  use  and  benefit  of  the  said  City  of  Boston,  all  the  water  of 
Sudbury  river  so  called,  at  and  above  the  dam  built  by  the  City 
of  Boston  in  1872,  five  hundred  feet,  more  or  less,  below  the 
crossing  of  the  said  Sudbury  river  by  the  Boston,  Clinton  and 
Fitchburg  railroad  in  the  town  of  Framingham,  in  the  County  of 
Middlesex,  and  near  the  brook  which  is  the  outlet  from  Farm 
pond  into  said  river,  and  all  the  water  in  the  said  dam  to  the 
source  or  sources  of  said  river ; also  all  the  water  in  Farm  pond 
so  called,  in  said  Town  of  Framingham,  and  all  the  water  in  the 
brook  connecting  Farm  pond  with  Sudbury  river;  also  all  the 
water  in  all  streams,  brooks,  and  rivulets  or  water-courses  of  any 
kind,  whether  natural  or  artificial,  that  may  flow  into  or  from  said 
Farm  pond,  and  into  or  from  said  Sudbury  river,  at  any  point  or 
points  above  said  dam,  as  more  fully  appears  by  the  record  of  said 
taking,  dated  January  21,  1875,  and  recorded  with  Middlesex 
Deeds,  Southern  District,  March  17,  1875,  in  Book  27,  folio  45, 
to  which  reference  is  hereby  made. 

And  by  said  taking,  and  by  said  dam,  and  by  water-courses  and 


Answer  of  City.  5 

channels  made  by  said  city,  the  water  coming,  and  which  naturally 
would  come,  to  the  place  where  said  dam  was  erected,  has  been 
diverted  from  its  natural  course,  and  cannot  come,  and  will  not 
hereafter  come,  in  its  natural  flow  to  the  dam  of  your  petitioners 
at  Lawrence  afore-described,  and  has  been  wholly  withdrawn  and 
diverted  therefrom. 

• And  in  and  by  the  premises  your  petitioners  have  been  greatly 
damaged  in  their  property  by  the  said  taking  of  and  injury  to 
their  land,  real  estate,  water  and  water-rights,  and  by  said  inter- 
ference with,  and  injury  to,  the  use  and  enjoyment  of  the  water  of 
said  river,  to  which  the  petitioners  at  the  time  of  said  taking  were 
legally  entitled.  And  the  petitioners  and  the  said  city  have  not 
agreed  upon  the  damages  to  be  paid  therefor,  and  said  city  have  not 
offered  to  pay  to  the  petitioners  any  sum  whatever  as  and  for  such 
damages. 

Whereupon  the  said  Essex  Company  petition  and  pray  this 
Honorable  Court  for  the  assessment  of  their  said  damages  and  all 
other  damages  they  have  suffered  and  are  entitled  to  in  the 
premises,  that  due  notice  and  summons  may  issue  hereon ; that 
thereafter  this  Honorable  Court,  upon  hearing,  or  default  of  said 
city,  will  appoint  three  judicious  and  disinterested  freeholders  of 
this  Commonwealth,  who  shall  assess  said  damages,  according  to 
law.  And  that  all  such  other  proceedings  may  be  had  in  the 
premises  as  to  law  and  justice  may  appertain,  and  as  said  chapter 
177  of  the  acts  of  the  year  1872  may  require. 

JAMES  J.  STORROW, 

Attorney  and  of  Counsel. 


The  answer  of  the  city  is  as  follows  : — 

ANSWER. 

Commonwealth  of  Massachusetts.  Middlesex,  ss. 

ESSEX  COMPANY,  PETITIONER  FOR  DAMAGES  AGAINST  THE 
CITY  OF  BOSTON. 

1.  And  now  come  said  City  of  Boston,  and  for  answer  to  the 
allegations  of  said  petitioners  say,  that  they  admit  it  to  be  true, 
as  therein  averred,  that  the  petitioners  were  in  possession  of  the 
land  therein  described  at  the  times  therein  set  forth,  but  said  de- 
fendants deny  that  the  petitioners  were  the  lawful  owners  of  the 
water-power  therein  described,  and  require  them  to  make  such  proof, 
as  they  are  advised,  of  the  ownership  of  such  water-power. 

2.  And  the  defendants,  further  answering,  admit  that  the 
Sudbury  river  is  one  of  the  branches  and  tributaries  of  said  Con- 
cord river,  which  is  a branch  of  the  Merrimack  river,  and  the 
waters  thereof,  and  the  streams  running  into  the  same  would 
naturally  flow  into  said  Merrimack  river,  and  flow  into  and  make 
a part  of  a head  of  water  raised  by  dam  at  Lawrence,  as  set  forth 
in  said  petition. 


6 


Essex  Company. 


3.  The  defendants,  further  answering,  aver  that  said  Essex  Co. 
does  not  own  any  rights  in  said  water-power,  except  it  may  be 
certain  indefinite  rights  in  common  with  other  parties  who  have 
suffered  damages  jointly  with  them,  if  any,  by  the  alleged  taking, 
or  any  taking  of  the  water  of  Sudbury  river  by  the  City  of  Boston, 
and  the'  defendants  claim  that  this  petition  for  damages  for  the 
taking  of  the  water  of  Sudbury  river  by  said  Boston,  under  and  by 
virtue  of  the  act  of  the  Legislature,  as  set  out  in  the  petition, 
should  have  been  brought  by  the  petitioners  jointly  with  various 
persons  to  the  defendants  unknown,  who  claim  to  own  rights  in 
said  water-power,  subject  to  certain  rights,  reservations  and  condi- 
tions therein,  who  are  all  jointly  owners,  or  jointly  interested  in 
common,  and  not  in  severalty  in  said  water-power  with  said 
petitioners ; and  said  petition  of  said  Essex  Co.,  if  it  may  be 
sustained  at  all,  should  be  jointly  with  the  other  owners,  in  com- 
mon of  said  waters  and  water-power,  who  claim  damages  against 
the  city,  because  of  the  taking  of  said  water,  and  not  severally 
by  each,  because,  the  defendants  say  that  the  water-power  of  said 
Merrimack  river,  at  said  Lowell,  being  undivided,  it  would  be 
exceedingly  burdensome  and  expensive  to  said  defendants  to  be 
called  upon  to  divide  and  show  how  the  taking  of  said  water  of 
Sudbury  river  would  affect  the  owners  and  claimants  of  the  water 
severally,  so  as  to  protect  themselves  against  the  several  claims  of 
each  owner  therein.  And  they  therefore  pray  the  Court  that  this 
petition  may  be  dismissed  for  non-joinder  of  the  other  owners  of 
said  water-power,  or  that  all  of  the  owners  of  any  rights  in  said 
water-power,  created  by  said  dam  at  said  Lawrence,  may  be 
ordered  to  come  in  and  join  as  parties  in  said  petition  so  that  there 
shall  be  but  one  assessment  of  damages  for  one  act  of  taking  by 
said  city  of  said  water,  and  for  a joint  injury  thereby  to  said  water- 
power owned  by  the  parties  aforesaid. 

4.  And  the  defendants,  further  answering,  deny  that  they  have 
taken  and  diverted  and  withdrawn  any  of  the  waters  of  Sudbury 
river  before  the  filing  of  said  petition  under  the  authority  conferred 
by  said  act,  set  forth  in  said  petition,  in  the  manner  and  form 
therein  set  forth,  or  otherwise  by  said  city  acting  under  and  by 
virtue  of  the  authority  of  said  act. 

5.  And  the  defendants,  further  answering,  say  that  said  peti- 
tioners, and  the  owners  of  said  water-power  at  said  Lawrence,  on 
the  Merrimack  river,  are  not,  and  will  not  be  damnified  by  the 
taking  of  the  water  of  Sudbury  river  under  said  act,  nor  do  they 
have  any  right  therein  or  thereto,  because  they  say  that  by  the  act 
of  the  General  Court  of  Massachusetts,  passed  June  22,  1793,  to 
which,  with  the  acts  additional  thereto,  the  defendants  beg  leave 
to  refer  as  part  of  their  answer,  certain  persons  therein  named 
were  incorporated  by  the  name  of  the  Proprietors  of  the  Middle- 
sex canal,  as  a perpetual  corporation  for  the  sole  object  of  uniting 
the  waters  of  the  Merrimack  river  in  said  Middlesex  county,  with 
the  waters  of  the  Medford  river  and  Charles  river  in  said  county, 
by  cutting  a canal  for  that  purpose,  u provided  that  whereas  it 
may  be  necessary  in  the  prosecution  of  the  foregoing  business  that 


Answer  of  City. 


7 


the  property  of  private  persons  may,  as  in  the  case  of  highways, 
be  appropriated  to  public  use.” 

It  was  also  enacted  therein  that  in  the  case  where  any  person 
shall  be  damaged  in  his  property  by  said  proprietors  in  any  man- 
ner, if  said  proprietors  do  not  make  or  tender  reasonable  satisfac- 
tion to  the  acceptance  of  the  person  damaged  by  them,  such  per- 
son may  apply  within  one  year  for  a committee  to  estimate  the 
damages  so  done,  and  such  proceedings  shall  be  had,  that  a com- 
mittee should  be  appointed  to  estimate  the  damages  and  make 
return  thereof  to  the  next  Court  of  General  Sessions  of  the  Peace, 
and  that  execution  should  issue  thereon  with  a right  of  appeal 
to  a jury  for  an  increase  of  said  damages. 

And  the  jury  or  committee,  as  the  case  might  be,  were  em- 
powered to  give  either  a sum  in  gross  for  damages,  or  annual 
damages  during  the  continuance  of  said  damage,  and.  the  party 
injured  was  to  have  judgment  and  execution  thereof. 

And  it  was  also  further  enacted  that  the  proprietors  were 
authorized  and  empowered  to  purchase  and  hold  to  themselves  and 
their  successors  forever , so  much  land  and  real  estate  as  may  be 
necessary  for  the  purpose  aforesaid , not  exceeding  the  value  of  five 
thousand  pounds ; “ provided  that  no  water-course  shall  be  turned 
or  altered  where  any  mill  is  erected,  so  as  to  injure  such  mill, 
without  license  therefor  first  had  and  obtained  from  the  General 
Sessions  of  the  Peace  in  the  county  through  which  said  water- 
course may  pass.  And  that  the  said  Court,  on  application  made 
to  it  by  said  proprietors,  shall  observe  the  same  rules  as  are  now 
prescribed  by  law  when  application  is  made  to  them  for  granting  a 
public  highway.” 

And  the  defendants  further  say  that  by  an  act  in  addition  to  the 
act  above  referred  to,  passed  on  the  28th  day  of  February,  in  the 
year  1795,  it  was  enacted  that  “the  property  of  said  proprietors 
in  said  canal,  and  in  an}^  other  canal  connected  therewith  which 
they  shall  effect  pursuant  to  the  authority  of  the  government,  and 
real  estate  of  said  corporation  of  which  the  said  corporation  shall 
be  seized,  shall  be  divided  into  eight  hundred  shares,”  which  were 
to  be  personal  property  for  certain  purposes  only ; and  it  was 
further  therein  enacted  by  the  second  section  of  said  act  “ that 
said  corporation  shall  have  power  to  receive  and  hold  real  estate 
as  appendant  to  said  canal , and  for  the  purpose  of  facilitating  its 
business , to  the  sum  of  £30,000,  over  and  above  the  value  of  the 
canal  itself,  simply  considered  ; ” and  they  were  further  empowered 
to  make  the  waters  of  the  Concord  river  boatable  as  far  as  Sudbury 
causeway,  and  as  much  further  as  the  same  can  be  usefully  im- 
proved for  that  end  ; and  to  open  any  canal  at  any  place  in  said 
County  of  Middlesex  that  may  be  necessary  to  connect  the  Con- 
cord river  with  said  Middlesex  canal  for  that  purpose,  and  that  the 
proprietors  shall  be  liable  to  have  damages  recovered  against 
them  by  any  individual  who  shall  be  injured  or  damnified  in  his 
property  in  such  new  canal,  by  the  same  mode  of  process  and  in 
the  same  manner  as  is  in  the  same  act  provided. 

And  said  defendants,  further  answering,  say  that,  under  said 
act  of  incorporation,  surveys  being  made,  it  was  found  that  it 
was  impossible,  without  great  and  inordinate  expense,  to  take  the 


8 


Essex  Company. 


waters  of  the  Merrimack  river  through  a canal  to  unite  with  the 
waters  of  the  Medford  river  near  said  Boston,  because  it  appeared 
that  the  waters  of  said  Merrimack  river,  at  a point  where  they 
were  to  come  into  said  canal,  were  some  twenty  or  more  feet 
lower  than  the  waters  of  the  Concord  river  at  said  Billerica,  at  the 
point  where  said  canal  must  pass  the  same. 

And  the  defendants,  further  answering,  say,  that  by  an  act,  in 
addition  to  the  several  acts  respecting  the  proprietors  of  the 
Middlesex  canal,  passed  June  25,  1798,  it  appears  that  “ whereas 
by  an  act  passed  February  28th,  1795,  it  is  provided  and  enacted 
that  the  corporation  of  the  said  Middlesex  canal  shall  be  em- 
powered to  hold  real  estate,  as  appendant  to  said  canal,  for  the 
purpose  of  facilitating  the  business  of  the  same  to  the  value  of 
30,000  pounds  over  and  above  the  value  of  the  canal  itself ; and 
the  proprietors  of  said  canal,  having  expressed  their  doubts 
whether  in  virtue  of  said  act  they  may  erect  and  hold  mills  on  the 
same  canal,  and  on  the  waters  with  which  it  is  or  shall  be  con- 
nected ; it  is  enacted  that  the  corporation  of  the  Middlesex  canal, 
or  the  proprietors  of  said  canal,  in  their  corporate  capacity,  shall 
be  empowered  to  purchase  and  hold  any  mill-seats  on  the  waters 
connected  with  the  same  canal,  and  lands  to  accommodate  the 
same,  and  thereon  to  erect  mills.,, 

And  the  defendants,  further  answering,  say,  that  by  an  act,  in 
addition  to  the  several  acts  passed  respecting  the  Middlesex  canal, 
passed  January  26,  1800,  it  is  recited  “ that  the  proprietors  of  the 
canal  have  in  their  petition  set  forth  that  from  a reservation  in  the 
acts  already  passed  in  their  favor,  the  government  has  a right  to 
regulate  the  toll  of  goods  carried  on  the  canal  anew  after  the  ex- 
piration of  forty  years,  from  which  provisions  great  discourage- 
ments and  embarrassments  have  resulted  in  the  execution  of  that 
project ; therefore  be  it  enacted  that  a toll  of  one-sixteenth  part  of 
a dollar  for  each  ton  carried  one  mile  on  the  same  canal  be  estab- 
lished for  said  proprietors  and  their  successors  forever.” 

And  that  afterwards,  by  an  act,  in  further  addition  to  the  acts 
incorporating  the  proprietors  of  the  Middlesex  canal,  passed  March 
2,  1803,  said  proprietors  were  allowed  the  term  of  three  years  from 
and  after  the  22d  day  of  June  the  next,  to  complete  the  same  canal 
to  Charles  river,  and  to  effectuate  means  of  communication  between 
said  canal  and  the  town  of  Boston  across  said  Charles  river  by 
boats,  and  were  allowed  the  further  term  of  six  years  to  render 
Concord  river  boatable  and  navigable,  and  for  cutting  their  canals 
in  the  County  of  Middlesex. 

And  the  defendants,  further  answering,  say  that  in  1798,  after 
the  passage  of  said  act  of  that  year,  the  proprietors  of  the  Middle- 
sex canal  purchased  said  mill  privileges  on  the  Concord  river  at 
Billerica,  and  erected  a dam  for  the  purpose  of  raising  a head  of 
water  to  supply  their  canal,  using  the  surplus  to  operate  their 
mills,  the  grist-mill  formerly  on  said  stream  having  the  first  right ; 
that  in  1804  they  completed  their  canal  from  Merrimack  river  to 
Charles  river,  and  opened  it  for  public  navigation,  taking  toll 
therefor,  using  the  head  of  water  so  raised  in  Concord  river  to 
feed  their  canal,  and  the  surplus,  whenever  any  there  was,  to 
run  their  said  mills. 


Answer  of  City. 


9 


And  the  defendants,  further  answering,  say,  that  in  1826,  find- 
ing their  dam  insufficient  to  raise  the  water  for  their  purposes, 
said  proprietors  built  a new  and  more  permanent  dam  in  con- 
nection with  the  old  one,  which  is  the  dam  now  maintained  by 
one  Faulkner  and  others,  petitioners  for  damages  against  said 
city. 

And  the  defendants,  further  answering,  say  that  from  the  year 
1804  down  to  the  year  1851  the  proprietors  carried  on  their  canal, 
using  in  the  dry  seasons  of  the  year  all  the  water  of  the  river  for 
keeping  up  the  navigation  on  their  canal,  and  the  surplus  for  their 
own  mills,  the  canal  retaining  the  first  right  thereto,  and  said  pro- 
prietors claim  to  hold  and  have  the  right  to  use  all  the  water  of 
said  Concord  river  for  the  purposes  of  navigation,  and  the  rights 
of  the  public  therein  until  the  same  may  be  lawfully  discontinued  ; 
and  that  afterwards  they  applied  for  leave  to  wind  up  their  affairs, 
to  the  Supreme  Judicial  Court  sitting  in  and  for  the  County  of 
Suffolk,  which  leave  was  refused  and  their  petition  dismissed  ; all 
said  water  is  still  holden  for  a public  use. 

And  the  defendants,  further  answering,  say  that  all  the  water 
of  the  Concord  river,  including  that  of  Sudbury  river,  was  taken, 
held  and  appropriated  forever  for  a public  use ; to  wit,  to  be  di- 
verted from  said  Concord  river,  and  was  so  diverted  into  Charles 
river,  and  into  Merrimac  river,  to  furnish  means  of  navigation  in 
a public  canal,  opening  above  said  dam  at  Lowell,  to  wit,  at  Bil- 
lerica, and  that  damages  were  paid  for  such  public  use  of  said 
water,  to  all  persons  having  any  right  therein,  and  injured  by  such 
diversion,  and  especially  to  those  under  whom  the  petitioners 
claim. 

And  the  defendants,  further  answering,  say  that  the  proprietors 
of  said  Middlesex  canal  had  not,  under  their  charter  and  the 
several  acts  in  addition  thereto,  any  right  or  power  to  sell  or  con- 
vey or  assign  any  right  to  any  person  whomsoever,  to  use  said 
water  as  against  any  other  public  use  of  the  same,  which  taking  of 
said  water  by  the  City  of  Boston  is  for  a public  use. 

And  said  defendants,  further  answering,  say  that  said  water  of 
the  Concord  river  was,  in  the  manner  and  for  the  purposes  and 
use  aforesaid,  and  by  tha  proprietors  of  said  canal,  taken,  used 
and  diverted  from  the  Concord  river  during  the  greater  part  of  the 
year,  and  especially  in  the  dry  season  thereof  (when  alone  said 
petitioners  would  or  could  suffer  any  loss  or  damage  by  the  taking 
of  the  waters  of  Sudbury  river),  at  Billerica,  into  said  canal  to 
Charles  river  and  Merrimac  river,  the  said  Concord  river  being 
used  at  said  Billerica,  which  is  a point  four  miles  above  the  dam 
at  said  Lowell,  as  a feeder  to  said  canal.  And  that  the  quantity 
of  water  so  taken  and  diverted  was  at  all  times  much  greater 
than  the  whole  natural  flow  of  water  received  into  said  Concord 
river  from  said  Sudbury  river. 

And  that  those  under  whom  said  petitioners  claim  to  hold  said 
water-power  received  compensation  for  all  damages  sustained  to 
said  mill-privileges  and  dam  and  water-power  at  said  Lawrence  by 
reason  of  the  taking  and  diversion  of  said  water  for  a public  use ; 

2 


10 


Essex  Company. 


and  the  petitioners  are  not  entitled  again  to  receive  damages  for 
any  diversion  of  said  water  for  any  other  public  use. 

Wherefore  the  defendants  ask  to  be  dismissed  of  this  petition, 
and  go  thereof  without  day,  and  for  their  reasonable  costs  in  this 
behalf  sustained. 

L.  M.  CHILD, 

B.  F.  BUTLER, 

Attorney  and  Counsel  for  the  City  of  Boston. 


The  first  statute  to  which  I shall  refer  is  chapter  177  of 
April  8th,  1872:  — 

"An  Act  to  Authorize  the  City  of  Boston  to  Obtain 
an  Additional  Supply  of  Pure  Water. 

" Be  it  enacted , etc .,  as  follows:  — 

" Section  1.  The  City  of  Boston  is  hereby  authorized,  by 
and  through  the  agency  of  the  Cochituate  Water  Board,  to 
take,  hold  and  convey  to,  into  and  through  said  city,  all  the 
water  of  Sudbury  river,  so  called,  said  water  to  be  taken  at 
any  point  or  points  within  the  town  of  Framingham,  or 
higher  up  on  said  river,  and  the  water  of  Farm  pond,  so- 
called,  in  said  town  of  Framingham,  and  the  waters  which 
may  flow  into  and  from  said  river  and  pond,  and  to  take 
any  water  rights  in  or  upon  said  river  or  pond,  in  or  above 
the  town  of  Framingham,  or  connected  therewith.” 

Then  there  is  authority  for  them  to  take  and  hold  lands  : — 

" Said  city  may  also  take  and  hold,  by  purchase  or  other- 
wise, in  connection  with  the  said  sources  of  supply,  any 
lands  or  real  estate  necessary  for  increasing  or  preserving  the 
purity  of  the  water,  or  for  laying,  building  and  maintaining 
aqueducts,  water-courses,  reservoirs,  dams,  buildings,  ma- 
chinery and  other  structures  and  appliances,  with  their  acces- 
sories, for  conducting,  elevating,  purifying,  storing,  discharg- 
ing, disposing  of  and  distributing  water ; and  may  also  take 
and  hold  any  land,  excepting  any  in  the  town  of  Framingham 
heretofore  taken  or  purchased  by  any  railroad  company,  on 
the  margin  of  said  sources  of  supply,  not  exceeding  five 
rods  in  width  from  the  high-water  line  of  said  river ; 
storage,  reservoirs  or  pond,  so  far  as  may  be  necessary,  in 
the  opinion  of  said  Cochituate  Water  Board,  for  the  preserva- 
tion and  purity  of  the  same,  for  the  purpose  of  furnishing  a 
supply  of  pure  water  for  the  City  of  Boston.” 

•Sect.  2 authorizes  them  to  build  one  or  more  permanent 
aqueducts. 

Sect.  3 authorizes  them  to  make  storage  reservoirs. 

Sect.  4.  " Nothing  contained  in  this  act  shall  be  so  con- 


Sudbury  River  Statutes. 


11 


strued  as  to  authorize  the  City  of  Boston  to  reduce  the  water 
in  Sudbury  river  below  a sufficient  height  to  maintain  at  all 
times  a running  stream  therein,  which  shall  flow  at  least  one 
and  one-half  million  gallons  a day  for  each  and  every  day  in 
the  year,  or  to  draw  from  Farm  pond  or  Sudbury  river  into 
Lake  Cochituate  when  the  water  runs  over  the  dam  at  Lake 
Cochituate,  or  to  prevent  the  inhabitants  of  the  towns  of 
Framingham,  Ashland,  Southborough,  Hudson  and  West- 
borough  from  taking  from  the  Sudbury  or  Assabet  rivers  or 
Farm  pond  so  much  of  the  water  hereby  granted  as  shall  be 
necessary  for  extinguishing  fires,  and  for  all  ordinary  domes- 
tic and  household  purposes,  and  for  the  generation  of  steam, 
or  from  cutting  and  carrying  away  ice  from  said  pond ; or  as 
to  prevent  the  Boston  and  Albany  Railroad  Company,  or 
the  Mansfield  and  Framingham  Railroad  Company,  or  the 
Boston,  Clinton  and  Fitchburg  Railroad  Company,  from 
taking  water  from  Farm  pond  for  use  in  locomotive  or  other 
engines,  or  for  other  railroad  purposes,  under  such  regula- 
tions of  the  City  Council  of  the  City  of  Boston  as  may  be 
essential  for  the  preservation  of  the  purity  of  the  same.” 

Sect.  5.  "The  City  of  Boston  shall  be  liable  to  pay  all 
damages  that  shall  be  sustained  by  any  persons  in  their 
property  by  the  taking  of  or  injury  to  any  land,  real  estate, 
water  or  water-rights,  or  by  fiowage  of  the  lands  of  any 
persons,  or  by  the  interference  with,  or  injury  to,  any  use  or 
enjoyment  of  the  water  of  said  river,  to  which  any  person, 
at  the  time  of  such  taking,  is  legally  entitled,  or  by  any 
other  doings  under  this  act ; and  in  regard  to  such  taking, 
injury,  interference  and  fiowage,  and  the  ascertainment  and 
payment  of  all  such  damages,  the  said  City  of  Boston,  and 
all  persons  claiming  damages,  shall  have  all  the  rights,  im- 
munities and  remedies,  and  be  subject  to  all  the  duties, 
liabilities  and  regulations  which  are  provided  in  the  one 
hundred  and  sixty-seventh  chapter  of  the  acts  of  the  year 
eighteen  hundred  and  forty-six,  and  the  three  hundred  and 
sixteenth  chapter  of  the  acts  of  the  year  eighteen  hundred 
and  fifty.” 

The  rest  of  the  statute  is  not  material.  This  section  pro- 
vides for  the  payment  of  damages  in  the  taking  of  water, 
and  so  on. 

The  167th  chapter  of  the  acts  of  the  year  1846  reads  as 
follows  : — 

The  Chairman.  — There  is  also  one  other  chapter  re- 
ferred to. 

Mr.  Storrow.  — That  is  the  second  water  act  — an 
amendment ; it  merely  extends  the  time  for  claiming  dama- 
ges, and  makes  some  other  provisions  as  to  the  proceedings. 


12 


Essex  Company. 


Mr.  Butler.  — That  has  nothing  to  do  with  this. 

Mr.  Storrow.  — This  chapter,  chapter  167  of  the  acts 
of  the  year  1846,  reads  as  follows : — 

It  is  entitled  " An  act  for  supplying  the  City  of  Boston 
with  pure  water.” 

It  then  goes  on  to  state  that  the  city  commissioners  may 
take  the  waters  from  Long  pond,  and  so  on,  and  provides 
that  " The  City  of  Boston  shall,  within  sixty  days  from  the 
time  they  shall  take  any  lands  or  ponds  or  streams  of  water 
for  the  purpose  of  this  act,”  — and  here  is  a material  clause 
in  this  section,  — " The  City  of  Boston  shall  file  in  the  office 
of  the  Registry  of  Deeds,  for  the  county  where  they  are 
situate,  a description  of  the  lands,  ponds  or  streams  of  water 
so  taken,  as  certain  as  is  required  in  a common  conveyance 
of  lands,  and  a statement  of  the  purpose  for  which  taken, 
which  said  description  and  statement  shall  be  signed  by  the 
said  mayor.” 

" Section  6.  The  said  City  of  Boston  shall  be  liable  to 
pay  all  the  damages,”  and  so  on.  "And  if  the  owner  of  any 
land,  water,  or  water-rights,  which  shall  be  taken  as  afore- 
said, or  other  person  who  shall  sustain  damage  as  aforesaid, 
shall  not  agree  upon  the  damages  to  be  paid  therefor,  he 
may  apply,  by  petition,  for  the  assessment  of  his  damages, 
at  any  time  within  three  years  from  the  taking  of  the  said 
land,  water  or  water-rights,  as  aforesaid,  and  not  afterwards, 
to  the  Court  of  Common  Pleas,  in  the  county  in  which  the 
same  are  situate ; such  petition  may  be  filed  in  the  clerk’s 
office  of  said  Court,  in  vacation,  or  in  term  time,  and  the 
clerk  shall  thereupon  issue  a summons  to  the  City  of  Boston, 
returnable,  if  issued  in  vacation,  to  the  then  next  term  of 
the  said  court,  and  if  in  term  time,  returnable  on  such  day 
as  the  said  court  shall  order,  to  appear  and  answer  to  the 
said  petition ; the  said  summons  shall  be  served  fourteen 
days,  at  least,  before  the  return  day  thereof,  by  leaving  a 
copy  thereof,  and  of  the  said  petition,  certified  by  the  officer 
who  shall  serve  the  same,  with  the  mayor  or  clerk  of  the  said 
city ; and  the  said  court  may,  upon  default  or  hearing  of  the 
said  city,  appoint  three  judicious  and  disinterested  free- 
holders of  this  Commonwealth,  who  shall,  after  reasonable 
notice  to  the  parties,  assess  the  damages,  if  any,  which  such 
petitioner  may  have  sustained  as  aforesaid ; and  the  award 
of  the  said  freeholders,  or  of  the  major  part  of  them,  being 
returned  into  and  accepted  by  the  said  Court,  shall  be  final, 
and  judgment  shall  be  rendered  and  execution  issued  thereon 
for  the  prevailing  party,  with  costs,  unless  one  of  the  said 
parties  shall  claim  a trial  by  jury,  as  hereinafter  provided.” 


Their  Charter. 


13 


It  is  under  these  statutes  that  the  commissioners  are  ap- 
pointed and  are  to  act. 

I propose  before  I put  in  our  testimony  to  state  to  you  the 
nature  of  our  case  and  the  character  of  the  proof  by  which 
we  expect  to  sustain  it,  and  in  the  course  of  doing  so  it  will 
be  convenient  for  me  to  read  one  or  two  passages  from  the 
charter  of  the  Essex  Company,  which  we  shall  put  in  proof 
by  and  by. 

The  first  act  to  incorporate  the  Essex  Company  was  in 
1845,  chapter  163.  The  1st  section  is  as  follows  : — 

AN  ACT  TO  INCORPORATE  THE  ESSEX  COMPANY. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives,  in 

General  Court  assembled , and  by  the  authority  of  the  same,  as 

follows:  — 

Sect.  1.  Samuel  Lawrence,  John  Nesmith,  Daniel  Saunders, 
and  Edmund  Bartlett,  their  associates  and  successors,  are  hereby 
made  a corporation,  by  the  name  of  the  Essex  Company,  for  the 
purpose  of  constructing  a dam  across  Merrimack  river,  and  con- 
structing one  or  more  locks  and  canals  in  connection  with  said  dam, 
to  remove  obstructions  in  said  river  by  falls  and  rapids,  from 
Hunt’s  Falls  to  the  mouth  of  Shawsheen  river,  and  to  create  a 
water  power  to  use,  or  sell,  or  lease  to  other  persons  or  cor- 
porations to  use  for  manufacturing  and  mechanical  purposes  ; and, 
for  these  purposes,  shall  have  all  the  powers  and  privileges,  and  be 
subject  to  all  the  duties,  and  liabilities,  and  restrictions,  set  forth 
in  the  thirty-eighth  and  forty-fourth  chapters  of  the  Revised 
Statutes. 

Sect.  2.  Said  corporation  may  hold  real  estate  not  exceeding, 
exclusive  of  the  expenditure  for  the  dam  and  canals,  three  hundred 
thousand  dollars,  and  the  whole  capital  stock  of  said  corporation 
shall  not  exceed  one  million  dollars,  and  said  stock  shall  be  divided 
into  shares  not  exceeding  one  hundred  dollars  each. 

Sect.  3.  The  said  corporation  is  hereby  authorized  and  em- 
powered to  construct  and  maintain  a dam  across  said  river,  either 
at  Deer  Jump  Falls,  or  Bodwell’s  Falls  [Bod well’s  Falls  is  the 
place  where  the  dam  was  actually.  Deer  Jump  Falls  is  seven 
miles  above],  or  some  point  in  said  river  between  said  falls,  and  all 
such  canals  and  locks  as  may  be  necessary  for  the  purposes  afore- 
said ; and  for  the  purpose  of  making  said  dam,  and  constructing 
the  main  canal  for  navigation,  or  transports,  may  take,  occup3r, 
and  enclose  any  of  the  lands  adjoining  said  canals  and  locks,  or 
dam,  which  may  be  necessary  for  building  or  repairing  the  same, 
for  towing  paths  and  other  necessary  purposes,  not  exceeding 
twenty  feet  on  each  side  of  said  canal,  or  locks,  and  may  blow  up 
and  remove  any  rocks  in  said  river,  and  dig  in  any  of  the  lands 
near  to  said  river,  through  which  it  may  be  necessary  to  pass  said 
main  canal : provided,  that  said  corporation  shall  not  obstruct  the 
passage  of  rafts,  masts,  or  floats  of  timber  down  said  river  earlier 


14 


Essex  Company. 


than  the  first  day  of  June,  in  building  said  dam,  nor  keep  the 
same  obstructed  for  a longer  time  than  five  months  before  the 
opening  of  said  canal  for  the  passage  thereof. 

Sect.  4.  If  there  shall  be  occasion,  in  the  prosecution  of  the 
powers  and  purposes  aforesaid,  to  make  a canal  across  any  public 
highway,  or  if  highways  shall  hereafter  be  laid  out  across  such 
canal,  it  shall  be  the  duty  of  said  corporation  to  make  sufficient 
bridges  across  said  canal,  and  to  keep  them  in  good  repair. 

Sect.  5.  The  said  corporation  shall  make  and  maintain,  in  the 
dam  so  built  by  them  across  said  river,  suitable  and  reasonable 
fishways,  to  be  kept  open  at  such  seasons  as  are  necessary  and 
useful  for  the  passage  of  fish. 

Sect.  6.  The  said  corporation  shall  erect,  and  forever  maintain 
such  canal  and  locks  as  shall  be  necessary  around  any  dam  con- 
structed by  them ; the  locks  to  be  not  less  than  twenty  feet  in 
width,  and  ninety  feet  in  length ; and  said  canal  shall  be  so  con- 
structed, that  there  shall  be  easy,  safe,  and  convenient  access  to, 
and  egress  from,  the  same ; with  fastenings  and  moorings  for  the 
reconstruction  of  rafts  or  floats,  after  the  egress ; and  shall  be  free 
and  not  subject  to  any  charges  whatever  for  the  passage  of  rafts  of 
wood  and  lumber,  masts,  and  floats  of  timber,  and  be  tended  b3r  a 
keeper  employed  by  said  corporation,  and  opened  at  all  reasonable 
times,  promptly,  for  such  passage.  . . . 

Sect.  10.  The  said  dam  shall  not  be  built  to  flow  the  water  in 
said  river  higher  than  the  foot  of  Hunt’s  Falls,  in  the  ordinary  run 
and  amount  of  water  in  the  river,  and  a commission  of  three  com- 
petent persons,  to  be  appointed,  one  by  the  said  corporation,  and 
one  by  the  proprietors  of  the  locks  and  canals  on  Merrimack 
river ; and  a third,  by  the  two  thus  appointed,  shall,  upon  the  ap- 
plication of  either  party,  fix  and  determine,  by  permanent  monu- 
ments, the  point  in  said  river,  which  is  the  foot  of  Hunt’s  Falls ; 
and  shall  also,  upon  the  like  application,  fix  and  determine  the 
height  of  the  dam  of  this  corporation,  and  of  the  flash  boards  to 
be  used  thereon,  whose  award  and  determination  shall  be  final  and 
binding  upon  all  parties  forever.  And  if  either  party  shall  refuse, 
after  request  in  writing  by  the  other,  for  the  space  of  thirty  days, 
to  name  such  commissioner,  or  in  case  of  a vacancy  in  such  com- 
mission, for  any  cause,  either  party  may  apply  to  the  Governor  of 
this  Commonwealth,  who  is  hereby  empowered  to  fill  such  vacancy. 
And  the  said  .point  of  the  foot  of  Hunt’s  Falls  shall  be  fixed 
within  sixty  days  after  such  application  to  the  commissioners,  and 
the  height  of  the  permanent  dam  shall  be  fixed  and  determined 
within  one  3Tear  after  such  application. 

Sect.  11.  This  act  shall  take  effect  from  and  after  its  passage. 

\_ Approved  by  the  Governor , March  20,  1845.] 


The  next  act  is  that  of  1846,  chapter  119. 


Their  Charter. 


15 


“ACTS  OF  1846,  CHAP.  119. 

“ An  Act  in  addition  to  an  act  incorporating  the  Essex 

Company. 

“ Be  it  enacted  by  the  Senate  and  House  of  Representatives  < in  Gen- 
eral Court  assembled , arid  by  authority  of  the  same , as  follows : — 

“ Section  1.  The  consent  of  this  Commonwealth  is  hereby 
given,  that  the  Essex  Company  may  expend  of  their  capital  stock 
within  the  State  of  New  Hampshire  such  sums  of  money  as  the 
said  company  may  deem  expedient  in  improving  the  power  of  the 
Merrimack  river ; and  for  this  purpose  the  said  company  may, 
with  the  consent  of  the  State  of  New  Hampshire,  acquire  by 
purchase  and  hold  real  and  personal  property  within  the  limits  of 
that  State.”  . . . 


The  next  .was  the  act  of  1848,  chapter  295,  authorizing 
the  Essex  Company  to  increase  their  capital  stock,  and  pro- 
viding for  the  manner  in  which  they  should  pay  for  damages 
done  to  private  fish-rights  by  their  dam. 

Without  telling  the  whole  story  of  all  the  charters,  — 
which  may  or  may  not  be  material,  — one  of  these  charters 
refers  to  the  right  to  do  something  up  in  New  Hampshire  to 
improve  the  power  of  the  Merrimack  river.  That  author- 
ized the  Essex  Company  to  acquire  real  and  personal  prop- 
erty within  the  limits  of  that  State,  and  under  it  they  bought 
half  the  stock  of  the  Winnipiseogee  Lake  Cotton  and 
Woollen  Manufacturing  Co.,  of  which  the  "proprietors  of 
the  locks  and  canals,”  owners  of  the  Merrimack  river  water- 
power at  Lowell,  bought  the  other  half. 

It  was  an  old  corporation  — of  the  old  style  of  manufac- 
turing corporations ; but  at  the  time  the  Essex  Company 
acquired  the  right,  before  mentioned,  the  Legislature  of 
New  Hampshire  passed  an  act,  dated  July  10,  1846,  en- 
titled 

“ AN  ACT  IN  ADDITION  TO  AN  ACT  TO  ESTABLISH  A CORPOR- 
ATION BY  THE  NAME  OF  THE  WINNIPISEOGEE  LAKE  COT- 
TON AND  WOOLLEN  MANUFACTURING  COMPANY. 

“Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives, in  General  Court  convened , That  the  said  corporation  is 
authorized  to  increase  its  capital  stock  to  the  amount  of  one 
million  of  dollars,  to  be  held,  used  and  enjoyed  under  the  same 
liabilities  and  with  the  same  powers  and  privileges  as  are  provided 
in  the  act  to  which  this  is  an  addition,  to  be  assessed  and  paid  at 
such  times  and  in  such  sums  as  the  directors  of  said  corporation 
may  from  time  to  time  order. 

“ Sect.  2.  That  said  corporation  shall  have  power  to  acquire 


16 


Essex  Company. 


and  hold,  in  this  State,  such  real  and  personal  estate,  not  exceed- 
ing in  the  whole  the  said  sum  of  one  million  dollars,  as  may  be 
necessary  to  improve  the  water  powers  of  the  Winnipiseogee, 
Pemigewasset  and  Merrimack  rivers,  and  for  that  purpose  to  make 
such  contracts  and  grants  to  and  with  the  proprietors  and  owners 
of  lands,  mills  and  mill-privileges  on  the  said  rivers,  and  their 
tributary  streams  and  waters,  as  may  be  necessary  to  accomplish 
those  objects. 

“ Sect.  3.  That  all  individuals  and  corporations  owning  mills 
or  mill-privileges  upon  either  of  the  said  rivers,  or  their  tributary 
waters,  may  subscribe  for  and  hold  stock  in  said  corporation,  and 
any  such  corporation  so  holding  stock  may  appoint  an  agent  to 
represent  the  same  at  all  corporate  meetings  held  according  to 
the  laws  of  this  State. 

u Sect.  4.  That  any  Legislature  may  hereafter,  upon  due  notice, 
and  for  cause  assigned,  alter  or  amend  this  act,  and  may  repeal 
the  same  for  a violation  of  the  provisions  thereof. 

“ [July  10,  1846.]  ” 

It  was  under  these  charters  that  the  Essex  Company  built 
their  dam,  beginning  it  in  1845  or  ’46,  and  finishing  it  about 
1848  or  ’49.  By  that  dam  — to  use  what  I think  is  the  very 
happy  language  of  the  act  — they  " created  a water-power  ” 
to  be  used  by  them,  or  to  be  sold  and  leased  to  others  for 
manufacturing  and  mechanical  purposes.  They  have  sold 
and  leased  some  to  others,  and  a considerable  portion 
remains. 

Under  the  provisions  of  that  charter  they  bought  a very 
large  quantity  of  land,  substantially  the  whole  of  what  is 
now  the  city  of  Lawrence,  for  they  perceived  that  that  terri- 
tory, which  then  was  of  no  value  at  all, — covered,  the 
whole  of  it  I think,  by  a population  of  150  persons,  — 
would  grow  into  a large  city,  and  would  become  very 
valuable  ; and  they  looked  for  their  profits  not  merely  to  the 
actual  use  of  the  water-power  itself,  but  to  the  increased 
value  which  that  use  on  the  spot  would  give  to  other  land 
which  they  owned,  adjoining  it.  And  their  expectations 
have  been  so  far  realized  that  this  territory  is  now  covered 
by  a population  of  35,000  people.  Such  has  been  the  addi- 
tion which  has  been  made  to  its  value  and  its  attractiveness 
by  means  of  the  creation  of  this  water-power  by  the  peti- 
tioners, and  its  use  where  they  created  it. 

The  taking  by  the  city,  you  will  remember,  by  the  statutes 
was  to  be  accompanied  with  the  filing  of  a certain  record  in 
the  Registry  of  Deeds  in  the  county  where  situate.  I have 
here  a certified  copy  of  that  record,  and  as  it  has  got  to  be 
read  some  time,  it  may  be  as  well  to  read  it  now.  It  is 
dated  the  21st  day  of  January,  1875,  and  was  filed  in 
the  Registry  of  Deeds,  March  17th,  1875. 


The  Taking  of  the  Water. 


17 


Gen.  Butler.  — [To  the  Commissioners.]  — It  was  to  be 
filed  within  sixty  days  from  the  taking. 

Whereas,  by  an  act  of  the  Legislature  of  the  Commonwealth  of 
Massachusetts,  passed  the  8th  day  of  April,  1872,  entitled  : “An 
act  to  authorize  the  Citjr  of  Boston  to  obtain  an  additional  supply 
of  pure  water,”  it  is  provided,  among  other  things,  that  “The 
City  of  Boston  is  hereby  authorized  by,  and  through  the  agency  of 
the  Cochituate  Water  Board,  to  take,  hold,  and  convey  to,  into 
and  through  said  city,  all  the  water  of  Sudbury  river,  so  called, 
said  water  to  be  taken  out  at  any  point  or  points  within  the  town 
of  Framingham,  or  higher  up  on  said  river,  and  the  water  of  Farm 
pond,  so  called,  in  said  town  of  Framingham,  and  the  waters  which 
may  flow  into  and  from  said  river  and  pond,  and  to  take  any  water- 
rights  in  or  upon  said  river  or  pond  in  or  above  the  town  of  Fra- 
mingham, or  connected  therewith  ; ” and  by  section  fifth  of  said  act, 
it  is  likewise  provided,  that  in  regard  to  such  taking,  injurj7',  inter- 
ference and  flowage,  and  the  ascertainment  and  payment  of  all 
such  damages,  the  said  City  of  Boston  and  all  persons  claiming 
damages  shall  have  all  the  rights,  immunities  and  remedies,  and 
be  subject  to  all  the  duties,  liabilities  and  regulations  which  are 
provided  in  the  one  hundred  and  sixty-seventh  chapter  of  the  acts 
of  the  jmar  eighteen  hundred  and  forty-six,  and  the  three  hundred 
and  sixteenth  chapter  of  the  acts  of  the  year  eighteen  hundred  and 
fifty  ; and,  whereas,  in  said  one  hundred  and  sixty-seventh  chapter 
of  the  acts  of  the  year  1846,  it  is  provided,  that  the  City  of  Bos- 
ton “ shall  within  sixty  days  from  the  time  they  shall  take  any 
lands,  or  ponds,  or  streams  of  water  for  the  purposes  of  this  act, 
file  in  the  office  of  the  Registry  of  Deeds  where  they  are  situate, 
a description  of  the  lands,  ponds,  or  streams  of  water  so  taken,  as 
certain  as  is  required  in  a common  conveyance  of  lands,  and  a 
statement  of  the  purpose  for  which  taken,  which  said  description 
and  statement  shall  be  signed  by  the  said  May^or ; and,  whereas, 
pursuant  to  the  provisions  of  section  first,  of  chapter  one  hundred 
and  seventy-seven  of  the  aforesaid  acts  of  1872,  it  was  ordered  by 
the  City  Council  of  the  City  of  Boston”  that  the  Cochituate  Water 
Board,  as  the  agent  of  the  City  of  Boston,  be,  and  it  is  hereby 
directed,  to  take,  hold,  conveyr  to,  into,  and  through  said  city,  all 
the  water  of  Sudbur}r  river,  so  called,  said  water  to  be  taken  at 
any  point  or  points  within  the  town  of  Framingham,  or  higher  up 
on  said  river,  and  the  water  of  Farm  pond,  so  called,  in  said  town 
of  Framingham,  and  the  waters  which  may  flow  into  and  from  said 
river  and  pond,  and  to  take  any  water-rights  in  or  upon  said  river 
or  pond  in  or  above  the  town  of  Framingham  or  connected  there- 
with, said  Cochituate  Water  Board  is  also  hereby  directed,  as  the 
agent  of  this  city,  to  take  and  hold  by  purchase  or  otherwise  in 
connection  with  said  sources  of  supply,  any  lands  and  real  estate 
necessary  for  increasing  or  preserving  the  purity  of  the  water,  or 
for  laying,  building  and  maintaining  aqueducts,  water-courses, 
reservoirs,  dams,  buildings,  machinery  and  other  structures  and 
appliances,  with  their  accessories  for  conducting,  elevating,  puri- 
fying, storing,  discharging,  disposing  of  and  distributing  water ; 

3 


18 


Essex  Company. 


and  also  to  take  and  hold  any  land  (excepting  any  in  the  town  of 
Framingham  heretofore  taken  or  purchased  by  any  railroad  com- 
pany) on  the  margin  of  said  sources  of  supply,  not  exceeding  five 
rods  in  width,  from  the  high-water  line  of  said  river,  storage, 
reservoirs  or  pond,  so  far  as  may  be  necessary,  in  the  opinion  of 
said  water  board,  for  the  preservation,  and  purity  of  the  same  for 
the  purpose  of  furnishing  a supply  of  pure  water  for  the  City  of 
Boston  ; the  expense  of  the  taking  of  said  v aters  and  lands  afore- 
said, to  be  charged  to  the  appropriation  already  existing  therefor. 
Provided,  however,  that  until  the  further  order  of  the  City  Council 
no  land  shall  be  taken  for  the  construction  of  a conduit  between 
Farm  pond  and  the  Chestnut  Hill  reservoir,  and  no  money  shall 
be  expended  therefor  beyond  the  amount  of  the  appropriations 
already  made.  Now,  therefore,  know  all  men  by  these  Presents, 
that  the  City  of  Boston,  by  the  Cochituate  Water  Board  aforesaid, 
Thomas  Gogin,  Leonard  R.  Cutter,  Charles  R.  McLean,  L.  Miles 
Standish,  William  G.  Thacher,  Edward  A.  White,  and  Edward  P. 
Wilbur,  duly  appointed  and  constituted  and  by  virtue  of  the  power 
and  authority  in  said  act  given  and  in  part  execution  of  the  same, 
have  taken,  and  by  these  presents  do  take,  for  the  sole  use  and 
benefit  of  the  said  City'  of  Boston,  all  the  water  of  Sudbury  river, 
so  called,  at  and  above  the  dam  built  by  the  City  of  Boston  in 
1872,  five  hundred  feet  more  or  less  below  the  crossing  of  the  said 
Sudbury  river,  by  the  Boston,  Clinton  and  Fitchburg  Railroad,  in 
the  town  of  Framingham,  in  the  county  of  Middlesex,  and  near 
the  brook  Which  is  the  outlet  from  Farm  pond  into  said  river,  and 
all  the  water  in  the  said  dam  to  the  source  or  sources  of  said  river  ; 
also,  all  the  water  in  Farm  pond,  so  called,  in  said  town  of  Fra- 
mingham, and  all  the  water  in  the  brook  connecting  Farm  pond  with 
Sudbury  river ; also,  all  the  water  in  all  streams,  brooks  and  rivu- 
lets, or  water-courses  of  any  kind,  whether  natural  or  artificial, 
that  may  flow  into  or  from  said  Farm  pond,  and  into  or  from  said 
Sudbury  river  at  any  point  or  points  above  said  dam,  subject  to 
the  restrictions  set  forth  in  section  four  of  chapter  one  hundred 
and  seventy-seven  of  the  laws  of  1872,  with  reference  to  said 
water.  To  have  and  to  hold  the  said  waters  to  the  said  City  of 
Boston,  and  its  successors  and  assigns,  toils  and  their  sole  use  and 
behoof,  agreeably  to  the  provisions  of  the  said  act  of  the  year 
eighteen  hundred  and  seventy-two.  In  witness  whereof,  I 
Samuel  C.  Cobb,  Mayor  of  the  said  City  of  Boston,  and  the  said 
Cochituate  Water  Board,  have  prepared  the  foregoing  description 
of  the  waters  taken  for  the  purposes  aforesaid  in  conformity  to  the 
requirements  of  the  acts  aloresaid,  to  be  filed  in  the  office  of  the 
Registry  of  Deeds  for  the  said  county'  of  Middlesex,  and  have 
hereto  set  our  hands  and  affixed  the  common  seal  of  the  City  of 
Boston,  being  hereto  duly  authorized  this  twenty-first  day  of  Janu- 
ary, in  the  year  eighteen  hundred  and  seventy -five. 

Signed  and  sealed  in  presence  of  James  L.  Hillard. 

[Seal.]  City  of  Boston  by  Samuel  C.  Cobb,  Mayor;  Thomas 
Gogin,  President;  Edward  A.  White,  Charles  R.  McLean,  William 
G.  Thacher,  L.  R.  Cutter,  Edward  P.  Wilbur,  L.  Miles  Standish. 

Middlesex,  ss.,  March  17th,  1875.  Received  and  recorded. 
Attest:  Charles  B.  Stevens,  Register . 


Opening  Argument. 


19 


Gen.  Butler.  — [To  Mr.  Storrow.]  — You  will  read,  if 
you  please,  in  this  connection  Section  8 of  the  act  — which 
you  did  not  read. 

Mr.  Somerby.  — Section  8 of  the  Acts  of  1872  ? 

Mr.  Storrow. — No;  Section  8 of  the  Acts  of  1846. 
"No  application  shall  be  made  to  the  Court  for  the  assess- 
ment of  damages,  for  the  taking  of  any  water-rights,  until 
the  water  shall  be  actually  withdrawn  or  diverted  by  the  said 
city  under  the  authority  of  this  act ; and  any  person  or  cor- 
poration whose  water-rights  may  be  thus  taken  and  effected 
may  make  his  application  aforesaid,  at  any  time  within  three 
years  from  the  time  when  the  waters  shall  be  first  actually 
withdrawn  or  diverted  as  aforesaid.” 

Gen.  Butler.  — [To  the  Commissioners.]  It  makes  a 
difference  between  the  taking  of  water  and  the  taking  of 
land.  The  taking  of  land  is  to  be  from  the  time  of  filing  the 
" taking.”  The  taking  of  water  is  from  the  time  when  the 
waters  shall  be  first  actually  withdrawn  or  diverted. 

Mr.  Storrow. — Now,  may  it  please  the  Commissioners, 
the  purpose  for  which  you  are  sitting  here  is  to  assess 
damages  ; to  ascertain  the  injury  in  money  which  we  have 
suffered  by  this  taking.  The  object  of  taking  by  the  right  of 
eminent  domain  is  not  to  enable  the  persons  in  whose  behalf 
that  right  is  exercised  by  the  Commonwealth  to  obtain  any 
property  at  any  less  price  than  they  ought  otherwise  to  get 
it  for.  The  object  is  to  devise  the  means  of  fixing  a price 
which  should  fairly  induce  the  persons  who  have  it  to  sell  to 
part  with  it,  fixing  a price  which,  fairly  considering  their 
uses  at  the  present  time  and  their  expectations  in  the  future, 
will  make  them  as  well  off  as  they  were  before.  I say  that 
your  business  is  to  find  that.  That  is  your  whole  duty. 
You  are  not  sitting  here  for  the  purpose  of  trying,  as  engi- 
neers, the  amount  of  water  which  the  Sudbury  river  fur- 
nishes, except  so  far  as  you  incidentally  must  try  that,  or  as- 
certain that,  or  make  up  your  minds  for  the  purpose  of  as- 
certaining the  value  which  is  taken.  Of  course,  it  is  an 
element  — a very  important  one  ; but,  after  all,  money  — the 
sum  in  dollars  and  cents  — is  the  result  which  you  are  to 
arrive  at. 

You  are  to  consider  also  its  value  to  the  the  Essex  Com- 
pany, to  be  used  or  leased  to  others  for  manufacturing  or 
mechanical  purposes ; and  there  is  one  reason  why  you 
should  so  consider  it,  and  that  is  this  : if  the  city  is  about  to 
take  a supply  of  water  for  domestic  purposes,  it  is  absolutely 
essential  that  they  should  have  a supply  to  be  relied  upon 
every  day  in  every  month,  and  in  every  year  for  an  indefi- 
nite series  of  years.  It  will  not  do  to  take  a supply  of  water 


20 


Essex  Company. 


and  rely  on  it,  if  it  should  turn  out  that  on  some  days  the 
supply  might  be  deficient  by  10  or  30  per  cent.  In  ascer- 
taining the  value  of  a source  of  water  supply,  it  would  not 
do  to  look  at  the  total  amount  which  the  water*  source  will 
supply  during  a whole  year,  but  only  the  lowest  amount 
which  can  be  relied  upon  for  every  day ; a supply  other 
than  that  is  comparatively  worthless  for  domestic  uses, 
except  so  far  as  it  may  be  used  by  being  stored  up  in  one 
season  and  let  out  in  another.  As  a running  supply  it  is  only 
valuable  for  domestic  uses,  for  the  minimum  that  it  will  fur- 
nish ; but  for  manufacturing  purposes  it  is  very  different. 
You  know  perfectly  well  generally,  and  especially  from  what 
you  saw  this  last  week,  that  the  mill-owner,  if  he  owns  all 
the  water-power  of  the  stream,  will  build  his  mill  so  as  to  use 
all  the  water  he  can  get  for  every  working  day  in  the  year ; 
but  just  how  much  water  he  can  use,  just  how  much 
machinery,  how  much  of  a mill  it  will  be  profitable  for  him 
to  put  in  over  and  above  the  amount  which  can  be  absolutely 
relied  upon  for  absolutely  every  day,  is  a question  which  you 
have  to  consider ; but  it  is  clearly  a good  deal  more  than  is 
going  to  be  run  every  day. 

Now,  practically  the  question  you  have  got  to  ascertain  is, 
how  much  of  the  water  is  useful  to  us  — to  any  manufactory 
at  Lawrence  — and  can  profitably  be  used  in  mills  ; because, 
if  it  can  be  profitably  used,  we  can  use  it  ourselves  or  lease 
it  to  others  and  derive  a daily  revenue,  or  get  a round  sum 
paid  us  for  the  right  to  use  it.  There  are  a great  many 
ways  in  which  a mill-owner  will  use  more  than  the  constant 
supply  of  a stream.  He  may,  at  some  seasons  when  busi- 
ness requires  it,  drive  harder  than  at  others.  He  may  run  his 
business  so  that  a slight  drought  will  not  seriously  incon- 
venience him,  because  the  case  will  not  be  water  furnished 
so  much  every  day  and  none  during  the  remaining  days,  but 
so  much  furnished  during  so  much  of  the  year,  and  a some- 
what less  amount,  but  still  a very  considerable  amount, 
during  the  remainder  of  the  year.  Then,  a saw-mill  or 
grist-mill  in  the  old-fashioned  times  would  run  in  high  water 
and  stop  in  the  summer  during  a drought.  Now,  a mill  of 
any  considerable  size  will  put  in  an  engine  simply  by  way  of 
precaution  against  accidents  to  their  motive  power,  and  for 
times  of  back  water,  and  the  cost  of  the  extra  use  of  that 
engine  one,  or  two,  or  three  weeks  during  the  drought  of 
the  summer  is  comparatively  small.  So  that  in  this  and  in 
many  other  ways  a mill-owner  may  use  the  river  water  when 
he  has  it,  during  most  of  the  time,  and  get  just  as  much 
value  from  it  for  each  day  when  he  does  have  it,  as  if  he 
had  it  all  the  time,  and  when  he  has  not  got  it  he  will  supply 


Opening  Argument. 


21 


the  deficiency  from  some  other  source  ; — and  he  will  put  in 
machinery  enough  to  make  such  use. 

You  will  find  by  and  by  there  are  means  for  profitably 
using  the  very  large  water-power  at  Lawrence ; that  there 
is  a market  for  the  Essex  Company  to  profitably  sell  a larger 
amount,  or  a larger  proportion  of  surplus  power  than  any 
one  mill  can  use. 

Before  I go  further  I think  I will  define  a word  which  we 
shall  have  to  use  a good  deal,  and  that  is  "mill-power”  — 
a mill-power,  as  we  understand  it  at  Lawrence ; and  it  is 
in  this  sense  that  I shall  have  occasion  to  speak  of  it.  It  is 
thus  defined  in  the  paper  I hold  in  my  hand,  and  which  is 
the  indenture  under  which  the  powers  are  sold  : — 

"Each  mill-power  is  declared  to  be  the  right  to  draw 
from  the  nearest  canal  or  water-course  of  the  grantors,  and 
through  the  land  to  be  granted,  so  much  water  as  shall  give 
a power  equal  to  thirty  cubic  feet  of  water  per  second  when 
the  head  and  fall  is  twenty-five  feet ; and  no  more  is  to  be 
drawn  in  any  one  second,  nor  is  the  same  to  be  drawn  more 
than  sixteen  hours  in  each  day  of  twenty-four  hours ; and, 
in  order  to  prevent  disputes  as  to  the  power  of  each  mill 
privilege  in  the  variations  of  the  height  of  the  water  from 
changes  of  the  season  Or  other  causes,  it  is  understood  and 
declared  that  the  quantity  of  water  shall  be  varied  in  pro- 
portion to  the  variation  of  the  height,  one  foot  being  allowed 
and  deducted  from  the  height  of  the  actual  head  and  fall, 
and  also  from  that  with  which  it  is  compared  before  com- 
puting the  proportion  between  them.  Thus,  on  a head  and 
fall  of  thirty  feet,  the  quantity  of  water  to  be  used  would  be 
twenty-four  cubic  feet,  and  24-2 9 ths  of  a cubic  foot  per 
second.” 

That  fraction  comes  from  throwing  away  a foot  on  each 
computation.  You  will  have  this  before  you  by  and  by ; 
but  the  essential  thing  there  is  that  the  grant  of  a mill-power 
is  not  a guaranty  of  so  much  power ; it  is  a right  to  draw 
water  through  certain  hours  of  the  day,  limited  by  the  pro- 
vision that  no  more  than  a certain  definite  amount  shall  be 
drawn  each  second,  and  the  amount  to  be  drawn  each 
second  is  to  vary  according  to  the  height  of  the  fall ; and 
one  fact  which  I will  call  your  attention  to  is,  that  in  times 
of  great  freshets,  when  there  is  heavy  back-water,  say  six 
feet,  the  fall  is  substantially  diminished  six  feet,  and  it  takes 
more  water  to  supply  the  mill-power.  In  times  of  drought, 
when  the  river  is  below  the  ordinary  height,  the  raceway  is 
very  low  and  the  head  and  fall  is  much  greater,  and  it  re- 
quires less  water  to  supply  the  mill-power. 

In  estimating,  therefore,  the  amount  of  water  it  takes  to 


22 


Essex  Company. 


supply  a mill  at  Lawrence,  we  want  to  know,  not  how  much 
water  it  takes  to  supply  it  at  a certain  time,  but  how  much  it 
takes  to  supply  it  at  all  times.  The  fall  at  Lawrence  varies 
from  25  to  30  feet  in  round  numbers ; about  28  or  29  feet  is 
the  fall  in  ordinary  summer  weather.  The  head  in  the  canal 
cannot  be  increased,  because  it  would  go  over  the  sides  of 
the  canal,  so  that  it  does  not  raise  the  head  ; but  the  surface 
in  the  raceway  below  is  raised,  and  so  there  is  less  fall. 

Now,  upon  the  question  of  the  amount  of  water  which  the 
Sudbury  river  will  furnish.  Although  it  is  easy,  I suppose, 
to  ascertain  at  a particular  moment  how  much  water  can 
be  furnished,  it  is  excessively  difficult  to  find  how  much  a 
stream  will  furnish  month  in  and  month  out  for  a long  series 
of  years.  That  cannot  be  done,  except  by  a long,  actual 
observation,  continued,  not  through  one  month,  or  two 
months,  but  for  many  years. 

[Adjourned  to  1.30  P.  M.~\ 


Afternoon  Session. 

Continuation  of  Mr.  Storrouds  Argument. 

I was  about  to  say  something  about  the  amount  of  water 
furnished  by  the  Sudbury  river  at  and  above  the  point 
where  the  city  has  diverted  it,  and  I was  about  to  state  it  for 
the  purpose  of  assisting  you  in  arriving  at  such  knowledge 
on  that  subject  as  you  may  find  convenient  to  aid  you 
in  ascertaining  the  value  of  the  water,  which  is  the  real  object 
of  this  Commission  : — 

The  Essex  Company  at  Lawrence  for  a good  many  years, 
tor  their  own  purposes,  have  undertaken  to  ascertain  the 
amount  of  water  passing  in  the  Merrimac  river  at  Lawrence, 
every  day  of  the  year,  or  rather,  I should  say,  every  day 
except  those  days  when  possibly  extraordinary  occurrences, 
or  more  particularly  when  the  presence  of  a large  amount 
of  ice  in  the  river  makes  it  impossible,  as  I am  told,  to  get 
a correct  ascertainment  by  the  ordinary  measurements ; we 
confine  our  measurements  to  those  months  of  the  year  when 
there  has  been  no  ice  in  the  river.  We  have  ascertained  the 
amount  of  water  flowing  in  the  river  at  Lawrence,  I suppose, 
with  an  accuracy  writh  which  no  large  stream  has  ever  been 
measured,  and  the  argument  which  we  propose  to  address  to 
you  from  the  figures  we  have  thus  arrived  at,  and  which  will 
be  laid  before  you,  is  this  : having  no  accurate  and  long-con- 
tinued measure  of  the  value  of  the  upper  Sudbury-river 
area,  taken  at  the  outlet  of  that  area,  we  shall  show  you  that 


Opening  Argument. 


23 


the  measurements  at  Lawrence  are  the  measurements  of  the 
water  which  comes  from  the  whole  Essex  Company’s  area  of 
something  upwards  of  four  thousand  square  miles  of  which 
the  Sudbury  area  forms  a part.  We  shall  then  endeavor  to 
show  you  that  the  upper  Sudbury  area,  from  actual  obser- 
vation by  an  intelligent  witness,  is  at  least  as  good  product- 
ively, that  is  to  say,  the  character  of  the  country,  the  char- 
acter of  the  slopes,  the  excellence  of  the  territory  as  regards 
getting  water  into  the  streams,  the  excellence  of  the  territory 
as  regards  its  freedom  from  large  evaporating  surfaces,  is  at 
least  equal  to  and  possibly  better  than  the  whole  average  of 
the  Essex  Company’s  area.  That  being  the  case,  and  it 
being  ascertained  by  measurements,  that  the  Sudbury  area, 
which  is  diverted  from  us  by  the  City  of  Boston,  is  of 
the  whole  area  which  hitherto  has  furnished  the  water  that 
has  come  to  us,  we  shall  ask  you  to  find  that  by  the  taking 
away  of  that  5T  of  our  area,  proved  to  be  at  least  up  to  the 
average  of  the  whole,  we  have  lost  ^y  of  the  value  of  our 
water-power  at  Lawrence,  and  we  think  that  that  is  a sound 
argument  and  one  from  which  there  is  no  escape ; for  if  it 
be  not  sound,  if  in  any  way  you  can  show  that  the  subtrac- 
tion of  of  a drainage  area,  every  part  of  which  was  equal 
in  its  productiveness,  did  not  subtract  jfe  of  the  value  of  the 
area,  but  took  something  less  than  that,  you  would  at  once, 
by  taking  -Jy  after  another,  arrive  at  the  conclusion  that 
having  taken  away  step  by  step  the  whole  of  our  area,  you 
will  have  taken  away  the  water  which  the  whole  of  that  area 
furnished.  From  that  and  many  other  similar  arguments 
we  expect  you  to  find  that  that  area,  which  is  as  good  as  the 
average  of  any  other  part  of  our  territory,  furnishes  -Jy,  and 
is  worth  to  us  of  the  whole  territory  of  which  if  forms 
if  Part- 

I ask  your  attention  just  here  to  this  consideration ; the 
question,  as  I have  said  more  than  once,  is  not  simply  the 
amount  of  water  which  the  Sudbury  river  furnishes ; the 
question  is,  the  value  to  us,  situated  as  we  are,  of  that  con- 
tribution to  our  water-power. 

Now,  I could  conceive  it  possible  that  a mill  situated 
exactly  at  the  point  of  diversion  might  have  some  trouble  at 
times  from  a very  low  amount  of  water,  because  other  causes 
incidental  to  a comparatively  small  area  will  make  a local 
drought,  and  afterwards  there  may  come  a heavy  August 
rain  which  will  make  a week  of  high  water ; and  these  two 
circumstances  make  a fluctuation  and  a variation  which  are 
not  desirable ; but  if  you  have  57  such  areas  to  drain  from 
we  know  that  there  we  arrive,  as  we  always  do  in  taking 
large  numbers,  more  nearly  at  an  average  which  correctly 


24 


Essex  Company. 


represents  the  truth ; for  the  summer  rain  which  makes  this 
freshet  on  Jy  of  our  area  down  at  Sudbury  does  not  fall  up  in 
New  Hampshire  where  another  57th  is  situated,  as  the  causes 
which  make  a drought  on  Jy  of  our  area  down  at  Sudbury  or 
up  at  the  north  do  not  .operate  on  every  other  57th ; and 
even  if  they  did,  if  it  were  true  that  every  rain  was  simulta- 
neous in  time  and  in  amount  over  the  whole  area,  then  this 
would  be  true,  that  the  rain-fall  from  that  part  of  our  large  area 
close  to  us  would  con^e  to  us  the  next  day,  whereas  that 
from  the  area  farthest  off  from  us  would  take  two,  or  three, 
or  four,  or  five  days  before  we  got  its  effect.  The  situation 
of  the  Essex  Company  in  this  respect  is  unlike  the  situation 
of  a mill  situated  just  at  the  point  of  diversion,  in  this  : that 
that  ^y  is  more  valuable  to  us,  being  combined  with  the 
other  J|-,  than  if  it  stood  solely  and  alone ; that  is  one  ad- 
vantage to  our  situation,  and  there  are  some  other  advantages, 
which  I have  alluded  to  once,  arising  from  the  large  amounts  of 
water  and  the  large  amounts  of  industries  with  which  we  con- 
nect. We  shall  produce  to  you  a table  showing  the  flow  of 
the  river  as  ascertained  at  Lawrence,  stating  the  average  flow 
per  second  for  each  month  during  a series  of  years,  and  we  shall 
show  you,  from  rain-fall  tables  and  otherwise,  that  those  years 
are  rather  under  than  over  the  average  of  the  twenty 
years  that  preceded  them.  We  shall  submit  to  you  that  a 
mill  will  be  built  by  a prudent  owner  large  enough  to  use  all 
of  that  water  which  he  finds  is  the  average,  at  least  for  the 
lowest  month  in  a series  of  years. 

And  in  order  that  you  may  have  all  of  the  facts  before 
you,  we  shall  show  you  in  another  list  of  tables,  giving  the 
average  of  the  flow  past  Lawrence  for  each  week  of  a 
series  of  years.  Now,  as  I said  before,  I don’t  care  very 
much  precisely  where  the  line  falls  between  what  is  abso- 
lutely constant  and  what  is  constant  51,  50,  49  or  48  weeks 
in  the  year,  because  the  difference  of  the  value  for  manufac- 
turing purposes  of  that  which  is  constant  52  weeks  in  the 
year  and  that  which  is  constant  51  weeks  in  the  year  is  so 
small  that  it  is  not  worth  while  to  figure  it  up  very  closely 
except  for  the  sake  of  finding  exactly  where  the  line  falls 
between  that  which  is  constant  51  weeks  and  that  which  is 
constant  52  weeks.  We  shall  put  before  you  these  tables 
to  show  what  the  flow  is,  and  shall  ask  you  to  determine 
what  is  the  value  of  a stream  which  has  that  flow.  We 
shall  throw  away  and  pay  no  attention  to  the  great  time  of 
the  freshet,  when  there  is  an  amount  of  water  larger  than 
any  mill  can  use,  but  we  shall  confine  ourselves  to  the  drier 
seasons  of  the  year,  and  show  you  the  amount  of  water 
which  the  Essex  Company’s  water-shed  has  furnished,  and 


Opening  Argument. 


25 


ask  you  to  say  what  the  value  of  that  water-power  is,  and 
then  divide  it  by  57,  and  thus  say  what  the  value  of  the 
Sudbury  portion  is. 

Upon  the  question  of  the  difference  of  value  to  us  of  the 
power  which  is  not  absolutely  permanent  every  day  of 
the  year,  you  know  yourselves  ; and  you  know  from  what 
you  have  seen  in  the  last  week  that  a large  and  valuable  use 
is  made  of  the  power  which  is  not  constant,  because  you 
have  seen  mills  which  are  supplied  with  steam  engines,  and 
for  a part  of  the  year  rely  for  a part  of  their  power  on 
steam,  bearing  in  mind  always  that  it  is  not  a question, 
especially  at  a place  like  Lawrence,  where  water  is  brought 
from  a great  many  sources,  of  no  water  at  all  during  time  of 
drought,  but  a question  of  the  falling  off  of  five  or  ten  per 
cent.,  or  some  moderate  percentage.  We  shall  also  show 
you,  to  assist  you  in  that  respect,  that  at  Lawrence  we 
derive  from  a certain  number  of  powers,  sold  or  permanently 
leased,  which  the  mills  regard,  and  I think  justly  regard,  as 
entirely  permanent,  which  are  all  that  they  have  or  expect 
to  have,  because  we  have  refused  to  sell  any  more,  that  they 
use  those,  and  have  built  machinery  to  use  those.  We  shall 
show  that  they  have  put  ill  machinery  to  use  a large  number 
of  temporary,  uncertain,  or  as  we  call  them,  " surplus 
powers,”  under  an  arrangement  made  with  us,  that  when 
the  river  furnishes  a supply  of  water  in  addition  to  what  we 
or  our  grantees  require  for  permanent  use,  they  may  use  it 
if  it  is  in  the  river,  paying  us  a certain  price  per  day  for  the 
use  of  it.  Now  you  readily  see,  in  the  first  place,  that  a mill- 
owner  may  well  pay  more  per  day  for  such  surplus  power,  be- 
cause in  the  way  in  which  permanent  powers  are  sold  a certain 
gross  sum  is  paid  outright  for  the  right  to  draw  that  amount 
of  water  forever,  and  that  is  paid  whether  they  use  the  water 
or  not ; or  a certain  rental  is  agreed  upon  to  be  paid  forever, 
so  much  a year  or  so  much  a day  for  three  hundred  days  in 
the  year,  whether  they  use  it  or  not ; but  as  regards  this 
temporary  power,  the  mill-owner  pays  for  the  day  in  which 
he  uses  it,  and  does  not  pay  for  the  day  when  he  does  not 
use  it ; and  so  within  certain  limits,  to  a certain  extent,  he 
can  afford  to  pay  more  per  day  for  this  power  and  yet  the 
power  itself  will  not  cost  him  any  more  for  the  time  he 
actually  uses  it  than  a less  price  per  day  for  power  to  be  paid 
for,  whether  he  uses  it  or  not.  We  shall  show  you,  at 
Lawrence,  that  the  product,  or  what  is  equivalent  to 
six  per  cent,  on  the  price  of  such  powers  as  we  have  sold  as 
permanent  powers,  is  a certain  amount  per  year.  We  shall 
show  you  that  under  this  arrangement  about  the  surplus 
power,  extending  over  a series  of  years,  we  have  realized  from 
4 


26 


Essex  Company. 


that  source,  from  the  use  of  the  power  which  the  mill-owners 
know  is  not  constant,  or  the  use  of  power  which  they  have 
no  right  to  use,  and  no  power  to  take  from  us,  except  only 
when  the  river  furnishes  it,  and  we  can  spare  it  from  other 
needs  ; that  they  have  paid  us  year  by  year  a very  large  sum, 
which  bears  a very  large  proportion  to  the  productive- 
ness of  the  permanent  mill-powers  sold  by  us.  That  will  be 
an  illustration  from  our  own  actual  experience,  past  and  con- 
tinuing, of  the  profit  which,  situated  as  we  are,  we  can 
realize  from  the  water,  which  does  not  come  to  us  every  day 
in  the  year,  and  if  that  water  is  taken  away  from  us  we 
suffer  a corresponding  loss. 

Now,  a city  drawing  water  above  the  dam  at  Saxonville 
and  Framingham  draws  it  day  and  night,  the  whole  24 
hours,  and  a city  substantially  uses  it  day  and  night,  not  so 
much  in  the  night  as  the  day,  but  uses  a great  deal.  Upon 
the  question  of  the  profitable  use  a manufacturing  company 
can  make  of  water  which  runs  day  and  night  we  have  got 
this  to  say,  — there  are  two  ways  in  which  they  may  use  it : 
they  may  run  their  mills  day  and  night.  Some  paper  mills 
and  some  woollen  mills  runday  and  night  under  the  pressure 
of  active  business.  Another  way  in  which  we  can  make 
profitable  the  water  which  flows  at  night  as  well  as  that 
which  flows  at  day  is  to  concentrate,  that  water  by  means  of 
mill-ponds,  or  otherwise,  into  the  ordinary  working  hours ; 
say  if,  for  example,  100  feet  a second  is  flowing  during 
each  second  of  the  working  hours,  we  may  be  able  to  con- 
centrate, or  our  situation  may  be  such  that  we  can  make  it 
come  up  to  200  feet  a second  during  twelve  hours,  and  we 
can,  of  course,  make  just  twice  as  profitable  use  of  it  in 
that  case  as  if  we  were  obliged  to  take  it  100  feet  a second 
during  twelve  hours  and  let  it  run  to  waste  at  night.  Now 
we  shall  show  you  that  when  the  flow  of  the  river  at  Law- 
rence is  a certain  gross  amount  for  the  whole  twenty-four 
hours,  which,  in  order  to  get  it  into  smaller  or  more  con- 
venient figures  we  will  express  by  an  average  of  so  many 
feet  per  second  if  it  flowed  equally  during  the  whole  twenty- 
four  hours  of  the  day,  we  can,  by  Concentration,  use  the 
whole  of  that  water  during  the  working  hours,  and  let 
nothing  go  to  waste  at  night ; the  value  to  us,  therefore,  is 
not  100  feet  per  second,  is  not  represented  by  dividing  the 
total  which  flows  through  the  day  by  the  number  of  seconds 
in  twenty-four  hours,  but  by  dividing  the  total  'which  flows 
through  the  day  by  the  number  of  seconds  in  twelve  hours. 
Now  that  is  one  of  those  advantages  which  some  mills 
possess  and  some  do  not. 

Whether  one  mill  possesses  it  or  not  depends  upon  its 


Opening  Argument. 


27 


situation,  upon  its  works,  upon  the  manner  in  which  the 
water  itself  actually  comes  to  it,  — depends  upon  its  own  dam 
where  it  can  so  control  the  water  as  to  make  the  waste  water 
of  the  night  really  available  in  the  day.  A company  is  owning 
a water-power  by  means  of  which  they  can  supply  a deficien- 
cy from  their  water-shed  when  that  deficiency  would  be  a 
great  source  of  injury  to  them ; that  enables  them  to  make 
a far  more  profitable  use  of  the  water  which  they  could  not 
use  if  they  did  not  have  these  appliances  and  resources,  and 
if  they  have  such  appliances  and  resources  the  taking  away 
that  water  causes  them  a greater  injury,  destroys  more  prop- 
erty, looking  at  water-power  as  property  (for  such  it  really 
is),  than  if  they  had  not  these  resources  ; the  question  after 
all  being  the  value  of  any  water-shed  for  manufacturing  pur- 
poses, which  turns  upon  the  question  of  how  much  machinery 
and  wheels  prudent  mill-owners  will  put  in  to  be  carried  by 
that  stream ; how  much  of  the  water  of  that  stream  can  be 
used  (for  all  the  mill-owners  can  use  we  can  use  or  sell)  ; 
apd  that  is  the  question  you  have  got  to  answer.  You  see 
perfectly  well  that  to  have  a small  diminution,  a twenty  per 
cent,  diminution  in  the  source  of  the  supply  of  a city  during 
a week  or  two  weeks  in  summer,  would  be  a great  disaster ; 
so  great  a disaster  that  no  city  would  count  upon  a supply 
which  would  expose  them  to  encounter  it ; yet,  to  a mill- 
owner  it  is  only  a loss  of  a certain  amount  of  power  for  those 
days,  and  not  such  an  injury  or  destruction  as  to  make  it  of 
no  avail  to  use  that  water  during  the  other  days  when  it  is 
there. 

Having  ascertained  in  that  way  how  many  mill-powers,  or 
in  other  words  how  much  machinery  can  be  profitably  used, 
and  how  much  that  total  amount  is  diminished  by  the  taking 
away  of  the  Sudbury-river  water,  you  will  arrive  so  near 
the  result  that  the  only  question  which  will  remain  for  you 
is  to  ascertain  how  much  a mill-power  is  worth.  Now  we 
shall  offer  you  as  evidence  on  that  point  the  actual  sales 
which  we  make  at  Lawrence,  and  in  order  that  you  may 
appreciate  them  justly,  I want  to  state  to  you  the  character 
of  the  sales  there,  — what  it  is  that  we  sell.  We  sell  under 
this  form  of  proposal,  which  you  have  had  before  you,  the 
right  to  draw  from  the  nearest  mill-pond  or  canal  of  the 
Essex  Company,  through  lands  sold  by  the  Essex  Company 
to  the  grantee  of  this  right,  and  to  be  used  on  that  land  and 
not  elsewhere,  a certain  number  of  cubic  feet  of  water  per 
second.  Now,  the  Essex  Company,  as  I have  already  said, 
expect  to  make  money  not  merely  by  the  sale  of  water- 
power, not  from  the  number  of  dollars  which  was  received 
from  the  sale  of  this  water-power,  and  of  the  mill-site  on 


28 


Essex  Company. 


which  it  is  to  be  used,  hut  from  the  improvement  of  its 
other  land  which  it  acquired,  and  to  accomplish  this  by  sell- 
ing water-power  to  be  used  near  it,  and  attracting  a large 
population  to  that  place ; and  you  can  readily  understand 
that  the  Essex  Company  might  give  a man  his  water-power 
for  nothing  if  he  would  come  there  and  build  a mill  and  buy 
from  us  that  land  to  put  his  mill  on  and  attract  operatives 
and  a large  population  there,  and  buy  land  from  us  for  mill- 
sites  and  boarding-houses  and  attract  a population  so  that 
everybody  else  who  came  there  would  want  to  buy  land. 

Now,  that  was  the  condition  of  the  Essex  Company ; 
they  looked  for  their  profit,  not  merely  to  the  number  of 
dollars  they  received  for  the  mill-powers  alone,  but  to  the 
improvement  of  their  land,  and  what  they  knew  would  be 
the  inevitable  and  necessary  rise  in  the  value  of  their  land, 
which  they  never  intended  to  use  themselves,  but  which  they 
bought  for  sale,  — the  $300,000  worth  of  land  which  their 
charter  authorized  them  to  hold.  We  might  consider  a mill- 
power  worth  $100,000  in  itself,  and  that  not  less  than  that 
would  have  satisfied  us  for  our  outlays  and  exertions  in  that 
respect;  yet  we  might  well  sell  it  for  $20,000  if  we  knew 
that  the  inevitable  result  in  selling  that  power,  to  be  used  on 
the  land,  would  be  to  enable  us  to  make  $80,000  profit  by 
the  sale  of  the  land  on  which  that  was  to  be  used  and  of  the 
other  land  in  that  neighborhood ; and  you  will  readily  un- 
derstand that  we  might  under  those  circumstances  sell  it  to 
a man  who  was  going  to  build  a mill  there  for  $20,000,  under 
those  conditions  expressed  in  our  deed  ; yet  if  the  proposition 
to  us  was  to  sell  our  mill-power  for  the  water  to  be  taken 
and  used  to  fertilize  the  lands  down  on  the  Back  Bay  in 
Boston  we  should  want  a very  different  price  to  make  the 
two  sales  equivalent.  We  shall  offer  you,  as  bearing  on 
that  point,  evidence  as  to  the  profit  which  we  actually  make 
under  those  circumstances,  showing  you  what  we  get  for  a 
mill-power  subject  to  these  conditions  and  restrictions,  and 
the  profit  we  shall  make  and  have  made  from  the  use  of  that 
water-power  on  the  premises ; and  we  think  that  will  enable 
you  to  find  more  readily  the  value  of  the  water-power  to  be 
taken  away  and  used  on  another  man’s  premises  twenty-five 
miles  off,  and  to  determine  the  money  amount  of  injury  which 
has  been  done  to  us  by  this  taking  from  us,  this  diversion  of 
water,  which  really  after  all  is  the  one  thing  which  we  have 
got  to  determine. 


H.  F.  Mills. 


29 


Hiram  F.  Mills,  sworn, 

Q.  (By  Mr.  Storrow).  What  is  your  profession? 

A.  1 am  a civil  engineer. 

Q,  What  has  been  your  employment  and  occupation  for  a num- 
ber of  years  past? 

A.  For  the  past  six  years  I have  been  engineer  for  the  Essex 
Company  at  Lawrence. 

Q.  Whether  or  not  you  have  paid  attention,  since  you  have  been 
with  the  Essex  Company  at  Lawrence,  to  ascertain  the  flow  of  the 
Merrimack  river  at  Lawrence  ? 

A.  I have  made  daily  measurements  of  the  quantity  of  water 
used  by  the  mills  there. 

Q.  Whether  before  going  to  Lawrence  you  have  paid  particular 
attention  to  the  subject  of  hydraulics  and  water  measurements? 

A.  I have. 

Q.  For  how  many  years? 

A.  For  twenty  years. 

Q.  Whether  before  you  went  to  Lawrence  you  have  had  any 
particular  experience  in  measuring  the  flow  of  rivers  and  ascer- 
taining the  amount  of  the  water-power  for  other  persons  than  the 
Essex  Company? 

A.  I have. 

Q.  Where? 

A.  At  Lowell  and  at  various  other  places ; at  Cohoes,  on  the 
Mowhawk  river,  and  in  Maine. 

Q.  Have  you  prepared  a table  showing  the  monthly  averages  of 
the  flow  of  the  Merrimack  river  past  the  works  of  the  Essex  Com- 
pany at  Lawrence? 

A.  I have. 

Q.  Will  you  produce  it? 

A.  I have  here  the  monthly  averages  during  the  months  from 
May  to  October  in  the  different  years  from  1871  up  to  the  present 
time. 

Q.  If  I understand  that  table,  the  figures  in  the  first  column 
represent  the  number  of  cubic  feet  per  second,  assuming  the  flow 
to  be  uniform  throughout  the  whole  twenty-four  hours? 

A.  Yes,  sir. 

Q.  I also  understand  that  it  represents  the  number  of  cubic  feet 
passing,  for  example,  during  the  month  of  May,  assuming  that 
during  every  second  of  that  month  the  flow  was  uniform  ? 

A.  Only  the  working  days ; twenty-four  hours  on  the  working 
days.  The  quantity  passed  on  Sundays  is  not  included. 

Mr.  Commissioner  Russell.  — We  will  mark  this  paper,  if  you 
please,  “ H.  F.  M.  1.” 


30 


Essex  Company. 


Monthly  averages  of  the  quantity  of  water  flowing  in  the  Merrimack 
river  at  Lawrence  on  working  days , in  cubic  feet  per  second , for 
twenty -four  hours : — 


Date. 

1871. 

May 

Quantity- 

passing. 

11,848 

Average  quantity 
drawn  from  lakes. 

June 

4,471 

July 

2,998 

90 

August  . 

3,058 

90 

September 

3,094 

47 

October  . 

4,357 

68 

1872. 

May 

9,260 

June 

10,528 

July 

4,922 

August  . 

9,014 

September 

9,559 

October  . 

9,164 

1873. 

May 

16,174 

June 

4,320 

July 

3,065 

August  . 

2,966 

52 

September 

3,400 

277 

October  . 

10,914 

1874. 

May 

19,091 

June 

11,230 

July 

11,126 

August  . 

5,389 

September 

3,152 

80 

October  . 

3,195 

55 

1875. 

May 

12,501 

June 

5,624 

July 

3,075 

August 

3,999 

September 

2,618 

123 

October  . 

- 

3,767 

39 

1876. 

May 

17,398 

June 

6,792 

July 

2,994 

August 

2,791 

153 

September 
October  . 

Q.  (By  Mr.  Storrow.)  I will  ask  you  now  whether  you  have 
prepared  a table  averaging  for  each  week,  at  the  times  when  the 
water  has  been  the  lowest,  at  the  times  when  the  water  has  been 


H.  F.  Mills. 


31 


flowing  at  the  rate  — say,  at  a rate  equivalent  to  less  than  3,000 
feet  a second  — from  the  first  of  May,  1871,  until  the  first  of 
September,  1876? 

A.  Yes,  sir ; covering  the  six  summer  months. 

Q.  (By  Mr.  Abbott.)  It  don’t  take  the  full  year,  but  the  six 
summer  months? 

A.  Yes,  sir. 

Commissioner  Russell.  What  is  the  second  table? 

Mr.  Storrow.  The  second  table  covers  from  the  first  of  May 
to  the  first  of  November,  when  the  flow  is  not  equivalent  to  more 
than  an  average  of  3,000  feet  a second,  because  it  is  only  about 
that  amount,  or  a little  below  that  amount,  when  it  becomes  neces- 
sary to  have  the  figures  with  precision ; for  somewhere  in  that 
neighborhood  the  question  to  be  determined  lies. 

Commissioner  Russell.  We  will  mark  this  “ H.  F.  M.  2.” 


Weeks  in  which  the  average  quantity  flowing  in  the  Merrimack  river 
at  Lawrence  was  less  than  3,000  cubic  feet  for  twenty-four  hours , 
May  to  October  inclusive , in  the  years  1671-1876. 


1871. 

July  10  to  15 

Quantity  flow- 
ing in  river. 

2,947 

Quantity  ordered 
from  reseryoirs. 

200 

17  to  22 

2,783 

100 

24  to  29 

2,795 

150 

Aug.  7 to  12 

2,880 

14  to  19 

2,670 

21  to  26 

2,568 

233 

Sept.  11  to  16 

2,672 

18  to  23 

2,408 

100 

25  to  30 

2,392 

83 

Oct.  2 to  7 

2,205 

290 

1872-1873. 

June  23  to  28 

• 

2,465 

30  to  July  5 

2,284 

July  7 to  12 

2,899 

14  to  19 

2,632 

Aug.  11  to  16 

2,657 

25  to  30 

2,859 

33 

Sept.  1 to  6 

2,772 

425 

8 to  13 

2,975 

266 

15  to  20 

2,755 

450 

1874. 

Sept.  7 to  12 

# 

• 

# 

2,975 

33 

14  to  19 

# 

# 

# 

2,797 

300 

Oct.  19  to  24 

2,490 

100 

26  to  31 

• 

• 

• 

• 

2,517 

150 

1875. 

July  19  to  24 

. 

. 

. 

2,615 

26  to  31 

. 

. 

. 

2,432 

32 

Essex  Compant. 

Aug.  2 to  7 

2,897 

30  to  Sept.  4 . 

. . 

2,808 

Sept.  6 to  11 

• . 

2,532 

200 

13  to  18 

• 5 

2,610 

300 

20  to  25 

2,840 

27  to  Oct.  7 . 

* 

2,460 

124 

1876. 

July  3 to  8 

2,967 

10  to  15 

2,983 

17  to  22 

2,308 

Aug.  7 to  12 

2,827 

14  to  19 

2,527 

200 

21  to  2# 

2,278 

300 

28  to  31 

2,360 

300 

Q.  (By  Mr.  Storrow.)  I notice  in  the  second  column  of  each 
of  these  tables  you  have  got  an  amount  of  “water  ordered  from 
the  reservoirs  ; ” please  explain  what  you  mean. by  that. 

A.  The  quantity  in  the  first  column  is  the  total  quantity  run- 
ning in  the  river  for  the  average  of  twenty-four  hours.  In  the 
second  column  is  the  quantity  which  we  received  from  the  reser- 
voirs in  New  Hampshire,  by  orders  ; that  is,  a certain  quantity  is 
required  to  be  run  from  the  reservoirs  in  New  Hampshire,  steadily, 
which  we  call  the  natural  flow  from  those  water-sheds,  and  when- 
ever more  is  wanted,  we  have  to  send  orders  for  the  specified 
amount,  and  that  amount  in  cubic  feet  per  second  is  started  from 
that.  In  making  this  table,  I have  reckoned  two  days  for  that 
water  to  get  to  us. 

Q.  You  have  not  put  it  in  the  day  when  it  was  ordered,  but  the 
day  when  it  got  there  ? 

A.  Yes,  sir  ; two  days  after  it  was  ordered. 

Q.  Then  I understand  the  first  column  represents  the  quantity 
actually  flowing  in  the  river? 

A.  Yes. 

Q.  And  that  the  second  column  shows  the  amount  stored  up 
months  previously,  and  now  drawn  from  the  storage  reservoir 
where  it  has  been  stored? 

A.  Yes,  sir. 

Q.  And  after  deducting  the  second  column  from  the  first,  you 
would  get  the  amount  which  the  water-shed  of  the  river  furnished 
at  that  time,  apart  from  the  amount  which  you  had  stored  previ- 
ously to  this  ? 

A.  Yes,  sir. 

Q.  (By  Commissioner  Russell.)  I understand  there  is  a con- 
tinual flow  from  those  reservoirs,  supposed  to  be  equal  to  the  cur- 
rent yield  of  their  water-shed  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Storrow.)  Are  those  reservoirs  situated  on  the 
Essex  Company’s  water-shed  ? 

A.  Yes,  sir. 


H.  F.  Mills. 


33 


Q.  So  that  the  use  of  that  reservoir  does  not  increase  the  total 
amount  of  water  coming  into  the  water-shed  ? 

A.  No,  sir. 

Q.  And  only  affects  the  distribution  by  holding  it  back  in  time 
of  flood,  and  pouring  it  out  in  time  of  drought? 

A.  Yes,  sir. 

Mr.  Butler.  I propose  a simple  objection,  Mr.  Storrow. 
You  say  the  only  reservoir  you  have  is  the  one  in  New  Hamp- 
shire ? 

Mr.  Storrow.  No,  sir ; it  is  the  Winnipiseogee  reservoir 
which  he  is  speaking  of  now ; it  is  the  one  in  which  the  water  is 
stored  up  in  times  of  flood,  and  drawn  out  in  times  of  drought. 

Mr.  Butler.  I didn’t  understand  you  had  two? 

Mr.  Storrow.  Well,  we  have  what  we  call  the  New  Hamp- 
shire reservoirs,  consisting  of  the  great  lake  Winnipiseogee  and 
many  smaller  lakes  and  ponds,  all  of  which  we  control,  and  on  all 
of  which  we  own  the  outlet. 

Q.  (By  Mr.  Storrow.)  This  quantity,  as  I understand  it, 
includes  all  that  comes  from  all  those  New  Hampshire  reservoirs? 

A.  Yes,  sir. 

Mr.  Butler.  If  it  is  convenient,  we  will  call  it  the  Winnipi- 
seogee reservoir. 

Mr.  Storrow.  We  always  call  it  the  New  Hampshire  reser- 
voirs. 

(By  Mr.  Storrow.)  It  represents  the  quantity  which  has  been 
stored  up  in,  and  which  is  drawn  from,  those  New  Hampshire 
reservoirs,  in  addition  to  the  ordinary  supply  which  those  lakes 
would  naturally  furnish  without  the  gates  and  dams  at  the  outlet, 
which  we  control  under  the  charter  of  the  Winnepiseogee  Lake 
Cotton  Manufacturing  Compan}',  which  I read  this  morning. 

A.  Yes,  sir. 

Mr.  Abbott.  In  this  second  paper  you  have  here  every  week 
where  the  flow  per  second  was  less  than  3,000  cubic  feet? 

Mr.  Storrow.  Yes,  sir. 

Q.  (By  Mr.  Storrow.)  And  on  all  the  weeks  other  than  those 
here  mentioned  the  flow  of  the  river  averaged  above  3,000  feet  a 
second  ? 

A.  Yes,  sir. 

Mr.  Butler.  3,000  or  over. 

Mr..  Storrow.  Whereas  the  first  paper,  No.  1,  shows  the  aver- 
age per  month  for  all  the  summer  months,  those  where  it  was  over 
as  well  as  those  where  it  was  under  3,000. 

I believe  that  the  commissioners  understand  the  tables.  I will 
make  sure  that  they  do.  The  amount  named  in  the  first  column  in  each 
table  is  the  quantity  actually  flowing,  without  regard  to  the  second 
column  ; that  the  second  column  represents  the  stored  up  quantity 
which  is  drawn  from  the  reservoir  and  comes  to  the  dam  on  the 
dates  stated ; and  deducting  the  second  column  from  the  first 
would  give  you,  at  any  time,  the  amount  which  the  water-shed 
would  furnish  without  the  storage,  but  including  the  ordinary  and 
natural  use  of  the  Lake  Winnipiseogee  water  which  is  within,  and 
the  shed  of  which  forms  part  of  our  New  Hampshire  shed. 


34 


Essex  Company. 


Q.  (By  Mr.  Storrow.)  Now  I will  ask  you,  Mr.  Mills,  how 
thoroughly  you  are  satisfied  of  the  correctness  of  those  tables  and 
what  is  the  limit  of  possible  error  in  them ; and  state,  if  you 
please,  so  that  the  commissioners  may  understand  it,  how  you  pre- 
pared them.  I will  ask  you  at  the  outset,  whether  these  tables 
are  the  result  of  observations  which  you  have  made  yourself  as 
engineer  of  the  Essex  Company,  or  of  your  assistants,  made  under 
your  immediate  supervision  ? 

A.  They  were  made  by  my  direction.  We  make  daily  measure- 
ments of  the  quantity  of  water  which  is  used  during  the  working 
hours  of  the  day  by  the  mills ; in  addition  to  that,  and  sometimes 
while  the  mills  are  working,  generally  I may  say,  there  is  water 
running  over  the  dam,  during  the  day.  Very  commonly  for  the 
first  two  or  three  hours  of  the  evening,  there  is  low  water  at  the 
place  where  we  observe  our  lower  gauge,  as  the  quantity  decreases 
afjter  the  mills  are  stopped  until  they  start  again  the  next  morning  ; 
and  then  it  increases,  and  in  order  to  determine  this  quantity  which 
is  used  at  hours  other  than  working  hours,  as  well  as  during  work- 
ing hours,  I have  had  a gauge  kept  of  the  height  of  the  river  be- 
low the  mills,  down  below  the  end  of  the  canal.  This  diagram 
illustrates  the  actual  heights  of  the  water  at  that  spot  as  shown 
by  that  gauge  for  the  last  two  months,  and  illustrates  the  way  in 
which  the  surface  of  the  water  rises  and  falls  there. 

Q.  That  gauge  is  placed  at  a point  in  the  river  where  all  the 
water  of  the  river  passes,  both  that  which  is  wasted  over  the  dam 
and  that  which  is  used  by  the  mills,  so  that  its  height  is  affected  by 
the  actual  and  total  amount  passing? 

A.  Yes,  sir.  The  lower  line  here  in  the  diagram  would  be  the 
zero  of  our  gauge  ; these  heights  of  1J,  2,  3,  4,  5 and  6 feet,  etc., 
are  represented  by  the  spaces  running  across  the  diagram,  and  in 
the  distances  in  this  direction  lengthwise  of  the  diagram,  the  spaces 
represent  one  hour  each,  that  on  which  I put  my  finger  being  12 
o’clock  at  night,  and  then  1,  2,  3,  4,  5,  6,  7,  8,  9,  10,  11,  up  to 
12  o’clock  at  noon.  Now  the  bed  of  the  river  there  is  in  the  neigh- 
borhood of  2 on  our  scale  of  heights,  that  is  the  bed  that  con- 
trols the  quantity  of  water  at  a comparatively  low  stage  of  the 
river ; there  is  a slight  bar  in  the  bed  of  the  river,  about  half  a 
mile  below  this  place.  Taking  it  at  6 o’clock  in  the  morning, 
there  is  the  height  of  the  water,  on  this  day,  which  happens  to  be 
July  20th  ; it  starts  with  the  water  at  3.39. 

Q.  (By  Mr.  Butler.)  Three  feet  and  39  above  what? 

A.  It  is  the  zero  of  our  scale  of  height,  and  that  zero  I think  is 
about  high  tide  down  at  Haverhill.  Our  water  at  this  place  never 
gets  below  the  point  on  which  I put  my  finger,  for  the  bed  of  the 
river  is  about  2 on  this  scale.  Then  this  curved  line  represents  the 
heights  of  water  taken  every  half  hour  through  the  twenty-four 
hours.  It  rises  rapidly  up  to  4.6  on  this  side  at  7 o’clock;  then 
again  it  rises  rapidly,  not  so  rapidly,  but  more  than  through  the 
da}T  generally,  and  at  8 o’clock  on  this  day  it  was  4nr<j  feet  on  the 
scale  ; then  it  rises  more  gradually  up  to  12  o’clock,  when  the  mills 
stop  for  dinner,  and  then  it  drops  in  this  case  about  6 inches.  It 
rises  again  about  as  high  as  before  and  continues  rising  through  the 


H.  F.  Mills. 


35 


afternoon,  up  to  6 o’clock;  then  the  mills  stop  ancl  it  falls,  as 
shown  by  this  line,  and  keeps  on  falling  generally  until  6 o’clock 
the  next  morning.  The  bar  that  controls  this  height  at  the  low 
stages  is  below  the  mouth  of  the  Spicket  river,  about  half  a mile, 
so  that  this  height  would  be  the  same  the  other  side  of  the  Spicket. 

Q.  (By  Gen.  Butler.)  This  shows  the  amount  of  water  flow- 
ing in  the  Spicket? 

A.  No,  sir  ; it  shows  the  height  of  the  Merrimack  river. 

Q.  (By  Gen.  Butler.)  The  height  of  the  Merrimack  river  plus 
the  Spicket? 

A.  No,  sir  ; the  height  of  the  surface  of  the  water  — the  actual 
surface  of  the  water. 

Q.  (By  Mr.  Storrow.)  The  raceways  of  the  Everett  Mills, 
and  some  other  mills,  empty  all  their  water  into  the  Spicket,  and 
the  height  of  this  gauge  is  affected  by  that  Merrimack-river  water 
delivered  through  the  Spicket? 

Q.  (By  Gen.  Butler.)  Whether  it  includes  the  Spicket  river? 

Mr.  Storrow.  Yes,  sir.  We  mean  that  this  gauge  is  placed 
near  the  end  of  the  canal  where  the  Spicket  flows  into  the  Merri- 
mack, and  its  height  is  affected  by  the  Spicket  water  so  far  as  that 
has  any  disturbing  effect. 

A.  This  gauge  is  affected  also  by  the  quantity  which  comes 
from  the  Spicket.  There  is  a broad  area  there  of  about  half  a 
mile  where  the  water  is  about  level,  and  this  is  the  height  of  that 
water ; and  the  Spicket  river  comes  just  below  the  gauge  into  that 
area. 

Now,  the  general  character  of  this  line  of  water-surface  — of 
these  heights  of  water  — is  illustrated  by  this  diagram  through 
these  different  months. 

Q.  How  long  a time  is  that  diagram  for? 

A.  During  the  last  two  months. 

Q.  (By  Mr.  Commissioner  Russell.)  Have  you  tables  for 
any  other  time? 

A.  I have.  This  diagram  shows  the  height  of  the  water  every 
half-hour,  except  where  there  are  certain  changes  during  the 
twenty-four  hours.  Now,  during  the  last  six  years,  we  have  taken 
a gauge  at  this  place  opposite  the  end  of  the  canal ; we  have 
taken  the  heights  of  the  water  there  for  the  working  hours  only 
generally,  and  the  heights  by  this  gauge  at  ten  o’clock  A.  M.  have 
been  taken  there  also  by  the  company  ever  since  they  started. 
During  the  year  1875  and  the  past  year  measurements  have  been 
made,  during  the  larger  part  of  the  time,  of  the  actual  quantity  of 
water  passing  our  dam  and  through  our  mills.  They  were  made 
in  1875  and  in  the  present  year. 

Q.  (By  Mr.  Storrow.)  You  mean  independent  and  actual 
measures  of  the  water  itself,  apart  from  and  in  addition  to  the 
observations  of  this  gauge  ? 

A.  Yes.  That  going  through  our  canals  and  that  going  over 
the  dam.  They  were  made  in  1875  and  in  the  present  year. 

Q.  (By  Mr.  Abbott.)  Beginning  at  what  time  in  1875,  and 
running  down  to  what  time? 

A . As  soon  as  the  ice  went  out  in  1875.  During  1875  these 


36 


Essex  Company. 


quantities  by  actual  measurement  were  taken  during  the  working 
hours  of  the  day,  and  at  9 o’clock  in  the  evening,  and  at  half-past 
5 in  the  morning,  at  the  same  point,  so  as  to  determine  thereby 
the  quantity  passing  through  the  twenty-four  hours ; and  these 
that  I have  just  spoken  of  as  made  during  the  last  two  months  are 
carried  closer  to  each  other,  and  are  made  every  half-hour  as  a re- 
finement of  the  measurement. 

Q.  (By  Commissioner  Russell.)  These  are  for  the  last  two 
months? 

A.  These  are  for  the  last  two  months.  During  1875,  from  the 
20th  of  April. 

Q.  (By  Commissioner  Francis.)  Half-past  5,  you  said? 

A.  Half-past  5 in  the  morning,  and  half-past  9 at  night. 

Q.  And  during  the  working  hours? 

A.  Yes,  sir. 

Q.  Half-past  9 at  night? 

A.  Some  were  taken  at  9 and  some  at  9.30. 

Q.  (By  Mr.  Storrow.)  During  the  whole  day? 

A.  During  the  whole  season.  Here  you  will  see  the  relation  of 
the  difference  between  the  quantity  going  in  the  daytime  and  that 
in  the  night.  During  a time  of  high  water,  as  }7ou  will  see  from 
the  diagram,  when  there  is  a large  quantity  of  water  going  over 
the  dam,  the  quantity  running  in  the  daytime  is  but  slightly  in- 
creased. 

Q.  Slightly  increased  over  that  running  at  night? 

A.  Over  that  running  at  night.  Whether  the  mills  use  or  do 
not  use  in  high  water  makes  but  little  difference  in  the  height 
below,  because  the  water  running  over  the  dam  is  slightly  reduced 
by  the  draught  for  the  mills,  so  that  the  quantity  is  lessened  there, 
but  the  quantity  below  is  increased  by  the  same  amount  coming 
from  the  mills. 

Q.  In  other  words,  when  there  is  high  water  you  cannot  store 
it  in  the  night  for  use  by  day,  and  that  is  the  reason  there  is  no 
substantial  change  between  day  and  night? 

A.  Yes,  sir.  This  diagram  illustrates  the  condition  during  the 
different  hours  of  the  day,  and  from  these  observations  I have  de- 
termined, under  the  various  circumstances,  and  taking  those  days 
when  the  river  was  about  stationary,  the  relations  of  the  height  of 
the  10  o’clock  gauge  to  the  height  of  the  gauge  during  the  twenty-four 
hours,  and  in  that  way  have  deduced,  running  through  the  twenty- 
four  hours,  that  the  quantity  for  the  whole  twenty-four  hours  cor- 
responds to  the  different  heights  taken  at  10  o’clock  in  the  river 
below. 

Q.  If  I understand  you,  then,  in  the  first  place,  you  find  by 
actual  measurement  that  the  gauge  varies  during  the  day  and 
varies  during  the  night  according  to  a certain  rule  or  measure  of 
variation  which  you  ascertain  by  observing  it,  and  then  you  find 
that  these  curves  which  express  this  variation  are  precisely  iden- 
tical or  very  similar  with  those  which  express  the  variations  on 
the  day  after? 

A.  With  about  the  same  volume  of  flow  of  water  the  curves  are 
very  nearly  alike  on  different  days. 


H.  F.  Mills. 


37 


Q.  And  yon  find  that  on  a certain  day  when  the  curve  for  the 
twenty-four  hours  was  thus,  and  so  that  the  gauge  was  at  a certain 
point  at  10  o’clock? 

A.  Yes,  sir. 

Q.  And  you  find  that  on  other  days  when  the  gauge  was  the 
same  for  all  half-hours  of  the  day  and  night  that  it  was  at  the 
same  point  at  10  o’clock  as  on  the  previous  day? 

A.  Or  at  some  other  point  very  near  it. 

Q.  And  thus  you  know  that  the  height  of  the  gauge  at  10  o’clock 
bears  a certain  relation  to  the  height  of  the  river  at  the  other  parts 
of  the  day  ? 

A.  Yes,  sir. 

Q.  You  ascertain  in  the  first  place,  by  actual  measurement,  the 
amount  which  was  passing  at  each  half-hour  during  the  day,  or  at 
more  frequent  intervals,  by  actual  measurement  of  the  water,  and 
thus  you  ascertain  the  total  amount  passing  during  the  day.  You 
observe  at  the  same  time  the  lower  gauge  at  the  moment  of  each 
observation,  and  you  know  that  the  observed  height  corresponds 
to,  and  indicates  the  passage  of,  the  amount  ascertained  by  meas- 
urement at  that  moment.  Then,  knowing  by  experience  that  the 
half-hourly  oscillations  follow  a rule  which  you  have  learned  by 
experience,  so  that  the  ten-o’clock  gauge  will  enable  }^ou  to  deduce 
the  other  gauges  of  the  day  from  it,  you  know  that  the  height  of 
the  ten-o’clock  gauge  corresponds  to  and  indicates  a certain  total 
amount  passing  through  the  day  — not  that  the  quantity  moment- 
arily corresponding  to  the  ten-o’clock  gauge  is  the  average  of  the 
day,  but  that  that  height  has  some  known  relation  to  the  total  of 
the  day,  and  therefore  to  the  average  per  second  of  the  day  ? 

A.  Yes,  sir. 

Q.  And  therefore,  having  ascertained  by  physical  measurements 
of  the  water  what  that  relation  is,  then,  by  knowing  what  the 
height  of  the  water  is  at  ten  o’clock,  you  can  deduce  what  amount 
during  the  day  corresponds  with  that  ten-o’clock  height  of  the 
gauge  for  a day  when  you  have  an  observation  of  the  gauge,  but 
no  actual  measurement  of  the  water? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  In  other  words,  3rou  take  the  relation  of 
the  ten-o’clock  gauge  to  the  total  of  the  water  as  a uniformity  ? 

A.  Yes,  sir.  Now,  without  any  reference  to  the  ten-o’clock 
gauge,  but  from  the  various  measurements  of  the  quantity  of  water 
taken  during  the  twenty-four  hours  during  the  past  year  and  in 
1875,  I have  determined  the  quantity  of  water  that  passes  for 
different  heights  at  this  gauge  at  the  time  of  observation  whenever 
the  river  is  steady,  when  it  is  not  rising  or  falling,  and  that  quantity 
is  represented  by  this  curve.  The  quantity  of  water  flowing  in  the 
Merrimack  river  below  our  works  at  Lawrence  upon  the  lower 
locks  reads  as  in  the  margin,  giving  the  quantity  in  feet  per 
second.  This  actual  quantity,  that  is  laid  down  here  and  forms 
this  curve,  is  taken  from  some  150  or  200  observations  on  different 
days. 

Q.  (By  Mr.  Storrow.)  You  don’t  mean  merely  observations, 
but  different  measurements? 


38 


Essex  Company. 


A.  Yes,  sir ; different  measurements  on  different  days,  for  the 
quantities,  accompanied  by  simultaneous  observations  of  the  cor- 
responding heights.  These  measurements  vary  somewhat,  coming 
from  different  days,  and  this  curve  is  the  mean  of  them  all.  These 
figures  and  the  spaces  in  this  direction  are  the  heights  of  the  river 
gauge  corresponding  to  the  quantities  flowing  by  the  dam,  which 
quantities  I ascertained  by  the  150  or  200  measurements. 

Q.  (By  Mr.  Hodges.)  And  whenever  it  is  at  that  gauge  then 
these  curves  represent  the  amount,  no  matter  what  day  it  is  ? 

A.  Yes,  sir.  This  curve  represents  the  quantity  of  water  flow- 
ing for  twenty-four  hours,  when  the  10-o’clock  gauge  at  the  lower 
locks  reads  as  in  the  margin. 

Q.  (By  Mr.  Storrow.)  One  of  these  curves  is  the  actual  quan- 
tity at  the  instant,  and  one  is  the  average  quantity  for  the  whole 
day.  One  is  the  result  of  the  calculation  for  that  instant,  and  one 
is  the  result  of  the  calculation  for  the  whole  da}r.  That  is  a table 
to  interpret  the  10-o’clock  gauge  by? 

A.  When  the  water  is  above  6.50  there  is  always  water  running 
over  the  dam,  and  this  height,  the  height  of  10  o’clock,  is  sensibly 
constant  for  the  whole  twenty-four  hours,  when  that  quantity  is 
running,  no  matter  what  we  are  drawing  through  the  mills  within 
the  limits  of  our  draught,  at  Lawrence  ; but  when  the  river  is  lower 
than  that  the  relation  between  the  10-o’clock  gauge  and  the  total 
for  the  day  depends  upon  the  quantity  of  water  that  we  are  draw- 
ing through  the  mills.  That  is,  the  10-o’clock  gauge  is  not  so 
much  above  the  average  for  the  twenty-four  hours,  if  we  are  draw- 
ing a small  quantity,  as  it  is  if  we  are  drawing  a large  quantity. 
We  run  it  up  quicker  in  the  morning,  and  run  it  up  higher,  also,  if 
we  are  running  a large  quantity  through  the  mills  than  if  we  are 
running  a small  quantity. 

Q.  That  is,  if  I understand,  the  rule  is  not  precisely  the  same 
at  low-water  stages,  when  you  are  using  small  amounts  at  the 
mills,  as  when  with  the  same  amount  in  the  river  you  are  using  a 
large  amount  through  the  mills  ? 

A.  Yes,  sir. 

Q.  And  you  have  ascertained  by  actual  measurements  what  the 
rule  is  when  you  are  using  smaller,  and  what  it  is  when  you  are 
using  the  larger  quantities? 

A.  Yes,  sir.  These  different  lines  represent  the  quantities  when 
120  mill-powers  are  running,  or  130  or  140  or  150,  and  also  for 
150  mill-powers  with  the  head-gates  of  our  canal  closed  at 
night. 

Q.  Then  I understand  that  the  rule  which  }Tou  derive  from  your 
actual  measurements  of  water  as  compared  with  your  observations 
does  not  give  you  an  amount  of  water  flowing  in  the  river  abso- 
lutely and  at  all  times,  shown  by  the  height  of  that  gauge  alone, 
but  that  the  relation  between  the  amount  flowing  in  the  river  and 
the  height  of  that  guage  is  also  affected  by  a second  cause  in  the 
low-water  stages,  which  is  the  amount  running  through  the  mills, 
used  at  the  mills? 

A.  Yes. 

Q.  And  that  your  daily  observations  extend  not  merely  to  the 


H.  F.  Mills. 


39 


height  of  the  gauge  but  also  to  the  water  running  through  the 
mills? 

A.  Yes,  sir. 

Q.  So  that  the  two  elements  which  enable  you  to  pass  from  the 
gauge  to  the  average  flow  are  the  height  of  the  gauge  and  the 
amount  used  in  the  mills? 

A.  Yes,  sir. 

Q.  And  both  of  these  elements  are  the  subject  of  observation 
and  have  been  used  by  you  in  arriving  at  your  results  presented  in 
your  curves,  and  in  your  tables? 

A.  Yes,  sir. 

Q.  And  these  curves  show  the  complex  rule  depending  upon 
both  of  those  elements  ? 

A.  Yes,  sir. 

Q.  (By  Commissioner  Stevens.)  This  only  applies  to  the 
heights  of  5 feet  ? 

A.  That  secondary  curve  applies  to  all  the  heights  where  it  is 
needed  or  affects  the  results. 

Q.  (By  Mr.  Storrow.)  Now  I understand  these  diagrams 
which  you  have  just  shown  us  are  the  result  particularly  of  these 
150  to  200  actual  measurements  and  experiments  such  as  you  have 
just  described  to  us? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  Made  during  what  time? 

A.  1875  and  76. 

Q.  (By  Mr.  Storrow.)  And  that  by  means  of  these  actual 
measurements  to  compare  them  by  you  were  enabled  to  pass  from 
a certain  height  given  by  the  gauge  and  a certain  number  of  mill- 
powers  used  in  the  day  ; that  you  were  enabled  to  ascertain  from 
those  observations  of  those  two  data  the  amount  of  water 
passing  in  the  river? 

A.  Yes,  sir ; under  the  ordinary  condition  of  the  water  as  we 
found  it  there  during  the  past  two  years. 

Q.  So  that  by  these  rules,  if  I may  use  the  expression,  repre- 
sented by  these  curves  which  were  arrived  at  by  actual  measure- 
ments and  observations  during  the  past  two  }Tears,  you  have  been 
enabled  to  go  back  to  your  10-o’clock  gauge  to  see  what  water  was 
flowing  in  the  river? 

A.  Within  certain  limits  during  the  past  six  years. 

Q.  During  the  past  six  years,  I understand,  from  actual 
observations? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  That  is  to  say,  assuming  that  so  many 
mill-powers  have  been  used  on  a given  day? 

Mr.  Storrow.  — No,  no. 

Mr.  Butler. — Then,  taking  the  10-o’clock  gauge  as  the  con- 
stant quantity  under  certain  circumstances,  he  gave  that  as  the 
index  of  what  that  was,  and  he  calculates  backwards  and  finds 
out  how  much  water  was  passing. 

Mr.  Storrow. — Taking  the  rule  as  constant  and  the  gauge  as 
the  variable. 

Q.  (By  Mr.  Storrow.)  How  about  the  Spicket  water  coming 


40 


Essex  Company. 


in  and  affecting  the  height  of  the  gauge?  I want  to  ask  y-ou,  in 
making  those  tables,  whether  you  have  taken  the  measurements 
of  the  Merrimack  river  water,  or  whether  you  have  included  it  in 
these  actual  measurements  of  the  water  in  the  Spicket  river? 

A.  The  quantity  of  water  included  merely  the  water  passing 
our  dam  above  the  point  where  the  Spicket  water  comes  in. 

Q.  That  includes  what  goes  from  the  Everett  Mills? 

A.  Yes,  sir. 

Q.  So  that  your  observations  and  your  rules  apply  to  Merrimac- 
river  water  and  give  the  quantity  of  Merrimac  river  water  which 
passes  at  Lawrence? 

A.  They  give  the  quantity  of  Merrimac-river  water  which 
passes  at  Lawrence  and  the  heights  of  this  gauge. 

Q.  Now  I will  ask  you  sometning  about  the  size  of  the  Spicket 
river,  whether  it  largely  affects  the  gauge  or  not? 

A.  It  does  affect  the  gauge. 

Q.  To  what  extent? 

A.  It  is  included  in  this.  The  height  of  the  gauge  is  taken 
when  the  Spicket  is  coming  in,  and  it  is  also  taken  when  the 
Spicket  is  coming  in  on  the  day  when  we  measure. 

Q.  (By  Mr.  Hodges.)  Has  it  to  do  with  your  measurements 
of  the  power?  I understand  your  measurements  of  the  power  pre- 
sented here  is  the  power  contained  in  the  Merrimack  above  the 
Spicket? 

A.  Yes,  sir  ; always. 

Q.  (By  Mr.  Butler.)  That  is  to  say,  }rou  throw  out  the  effect 
upon  the  gauge  of  the  Spicket  river  proper,  what  comes  down  the 
Spicket  river  from  Methuen,  and  throw  out  that  as  an  immaterial 
element? 

A.  No,  sir.  We  include  it.  We  include  it  in  this  way.  It 
would  be  realty  immaterial  upon  the  assumption,  or  nearly  this 
assumption,  that  the  quantity  furnished  by  the  Spicket  varied, 
directly  and  uniformly,  with  the  quantity  going  into  the  Merrimack, 
that  is,  when  there  is  a small  quantity  coming  into  the  Merrimack 
there  is  a correspondingly  small  quantity  in  the  Spicket.  Any 
great  variation  in  the  relations  between  the  two  would  be  different 
from  the  assumption,  but  the  actual  quantity  measured  above  is 
the  quantity  that  comes  in  the  Merrimack ; the  height  compared 
with  below  is  the  height  made  by  the  two. 

Q.  But  that  measurement  is  determined  by  the  quantity? 

A.  No,  sir ; the  measurement  is  not  determined  by  the  gauge. 
The  measurement  is  determined  by  the  quantity  going  over  the 
dam,  and  the  quantity  going  through  our  canals. 

Q.  And  the  steadiness  of  the  flow  at  other  hours  is  determined 
by  your  quantity  ? 

A.  No,  sir. 

Q.  (By  Mr.  Abbott.)  The  gauge  indicates  both  the  Spicket 
and  Merrimack ; then  }Tou  connect  with  the  height  on  the  gauge 
made  from  both  Spicket  and  Merrimack,  but  have  the  absolute 
measurement  of  the  river,  and  you  find  that  that  height  on  the 
gauge,  made  up  of  Spicket  and  Merrimack,  indicates  from  actual 


H.  F.  Mills. 


41 


measurements  so  much  in  the  river  above,  that  is,  in  the  Merrimack 
alone? 

A.  Yes,  sir  ; that  is  it. 

Q.  Then,  if  there  should  be  any  great  deviation  at  any  time 
between  the  Spicket  and  the  Merrimack  that  would  cause  confusion? 

A.  That  does  not  destroy  it ; there  may  be  such  variation. 
When  that  is  the  case  these  observations  are  taken  whenever  we 
can  get  a steady  condition  of  the  river.  Now,  the  quantity  and 
height  correspond  to  these  varying  conditions  and  the  mean  of 
these  varying  conditions  is  taken  and  represented  by  the  diagram. 

Q.  (By  Mr.  Storrow.)  That  is,  you  know  the  state  of  the 
gauge  at  every  occasion.  You  actually  measure  the  water  of  the 
Merrimack  river  falling  over  the  dam,  and  the  water  passing  into 
canal  ? 

A.  Yes,  sir. 

Q.  So  that  you  know  when  the  Merrimack  flows  a certain  vol- 
ume, what  is  the  height  of  the  gauge  in  the  Merrimack  below  the 
canal  and  near  the  mouth  of  the  Spicket? 

A.  Yes,  sir. 

Q.  Then  you  know,  from  these  150  to  200  observations,  that 
the  flow  at  that  point  corresponds  to  a certain  height  of  the  gauge 
which  is  placed  in  the  Merrimack  opposite  or  near  the  mouth  of  the 
Spicket  ? 

A.  Yes. 

Q.  And  then,  knowing  for  a series  of  3^ears  the  height  of  that 
gauge  and  the  amount  passing  from  the  mills  at  low  stages  of  the 
water,  you  were  able  to  go  back  from  that  and  ascertain  the 
amount  which  comes  from  the  Essex  Co.’s  pond  by  wastage  over 
their  dam  and  use  in  the  mill? 

A.  Yes,  sir. 

Mr.  Butler.  Knowing  the  amount  flowing  over  the  dam  and 
how  the  gauge  stands  at  different  hours  of  the  day,  by  means  of  the 
gauge,  he  determines  that  that  quantity  does  pass  through  all  of 
them. 

Mr.  Storrow.  That  is  not  it  at  all. 

Q.  Now  I come  to  another  question,  Mr.  Mills.  To  go  a little 
further,  if  the  Spicket  bore  an  invariable  relation  to  the  Mer- 
rimack, the  fact  of  the  gauge  being  affected  by  the  Spicket  would 
not  affect  the  result  of  your  calculations  at  all  ? 

A.  No. 

Q.  It  is  only  when  the  condition  of  the  Spicket  varies  extraor- 
dinarily from  the  condition  of  the  Merrimack,  departs,  to  a large 
extent,  from  its  ordinary  relation,  that  that  element  disturbs  your 
results  ? 

A.  Yes,  sir. 

Q (By  Commissioner  Russell.)  From  its  natural  condition. 
That  is,  when  the  Merrimack  swells  the  Spicket  swells,  and  when 
the  Merrimack  falls  the  Spicket  falls? 

A.  Yes,  sir ; but  if  the  Spicket  rose  or  fell  without  the  Merri- 
mack then,  to  a certain  extent,  it  would  be  some  disturbance. 

Q.  (By  Mr.  Storrow.)  Taking  into  view  that  fact  and  all  the 
other  possibilities  of  error  in  your  calculations,  I want  to  know 
6 


42 


Essex  Company. 


how  confident  you  are  and  what  you  can  state  as  to  the  limit  of 
error  beyond  which  the  possible  error  will  not  go. 

A.  I found  days  immediately  after  a storm  when  there  was  a 
difference  between  the  measured  quantity  and  the  quantity  as  in- 
dicated b}'  the  diagrams  of  10  per  cent. 

Q.  And  how  many  such  days  did  you  find? 

A.  I found  very  few  of  them  ; two  or  three  days. 

Q.  Two  or  three  days  in  the  course  of  a series  of  years? 

A.  Yes,  sir ; and  during  these  observations  of  the  last  two 
years. 

Q.  Now  I will  ask  you,  with  all  the  allowance  made  for  these 
and  every  other  cause  of  error  which  you  can  ascertain,  what  is 
the  possible  limit  of  error  in  the  figures  which  you  have  presented 
in  these  two  tables? 

A.  Of  course  there  may  be  a possible  limit  of  that  10  per  cent. 
That  is  the  greatest  which  I have  ever  found. 

Q.  Upon  any  occasion? 

A.  Upon  any  occasion.  I regard  these  as  being  within  five  per 
cent.,  but  there  have  been  days  on  which  the  variation  is  as  great 
as  ten  per  cent. 

Q.  But  you  are  satisfied  that  five  per  cent,  is  the  utmost  limit  of 
error  in  these  tables  as  they  are  made  ? I don’t  mean  to  ask  for 
any  particular  day,  but  I mean  to  ask  as  affecting  these  figures  in 
these  tables.  I understand  there  may  be  particular  days  in  the 
year  when  there  is  an  error  of  10  per  cent. 

A.  For  the  quantities  of  3,000  feet,  the  greatest  percentage  I 
have  found  is  4 per  cent.  I have  found  it  4 per  cent,  each  way. 

Q.  Sometimes  one  way,  sometimes  the  other? 

A.  Yes,  sir. 

Q.  And  how  often  has  that  happened ; is  that  a constant  or  a 
frequent  error,  or  a rare  error  ? 

A.  I should  regard  it  as  a rare  difference? 

Q.  It  has  happened? 

A.  It  has  happened,  and  in  presenting  these  quantities  I should 
not  claim  for  them  a closeness  greater  than  5 per  cent.  That 
would  be  a fair,  presentation,  I think,  of  the  tables. 

Q.  (By  Commissioner  Francis.)  Below  3,000  feet,  5 per 
cent.  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Storrow.)  I understand  you  to  say  that  the  error 
you  have  found  in  3,000  feet  was  4 per  cent.,  sometimes  in  one 
direction  and  sometimes  in  the  other? 

A.  Yes,  sir. 

Q.  So  that  you  could  not  say  whether  the  total  error  of  4 per 
cent,  ought  to  swell  the  figures  or  to  diminish  them  4 per  cent.? 

A.  No,  sir;  they  are  intended  to  be  a fair  presentation  of  the 
quantity. 

Q.  I will  ask  you  whether  you  know  of  the  flow  of  any  other 
river  of  a considerable  size  being  measured  with  any  more  accu- 
racy than  these  figures  present  ? 

A.  I know  of  none. 

Q.  Whether  you  would  have  any  hesitation  as  an  engineer  in 


H.  F.  Mills. 


43 


advising  persons  to  build  mills  or  construct  works  based  on  the 
accuracy  of  these  figures? 

A.  I should  have  no  hesitation  in  advising  them,  that  works 
should  be  constructed  on  these  measurements. 

Q.  These  tables  which  have  been  put  in,  cover  from  the  begin- 
ning of  1871  to  the  present  time? 

A.  Yes,  sir. 

Q.  I want  to  ask  you  if  you  have  made  any  comparisons  in 
Order  to  ascertain  whether  those  years  were  wetter  years  or  other- 
wise, as  compared  with  the  previous  dozen  or  fifteen  years ; and 
if  so,  state  the  results?  Tell  me  how  they  compare  with  the 
amount  of  the  rainfall  on  the  Essex  Company’s  water-shed  during 
those  previous  years?  State  the  result  of  any  examination  which 
you  have  made  on  that  subject? 

A.  The  comparison  I have  made  is  this  : — Taking  the  rainfall 
for  Lawrence,  Lowell,  Lake  Village  in  New  Hampshire,  and  the 
Weir’s  Landing  in  New  Hampshire,  and  the  Cochituate  Lake 
records,  I find  in  five  years,  1871  to  1875,  the  average  rainfall  for 
the  year  at  these  different  places  was  431^  inches  ; and  that  for 
the  different  records  taken  at  these  places,  which  have  been  taken 
for  nineteen  to  twenty-seven  years,  the  average  is  44T8<yV  That 
is,  I took  all  the  rain  gauges  I had,  which  were  taken  at  these  dif- 
ferent places. 

Q.  (B}t  Mr.  Hodges.)  Prior  to  1871? 

A.  No,  sir;  including  the  whole  time  from  1871  back. 

Q.  Two  in  New  Hampshire? 

A.  Yes,  sir. 

Mr.  Abbott.  That  includes,  Mr.  Chairman,  the  average  of 
these  five  last  years  also. 

Commissioner  Russell.  Yes,  sir. 

Q.  (By  Mr.  Storrow.)  I understand  that  the  average  of  these 
nineteen  to  twenty-seven  years  from  1876  back  is  44T8ff9o,  and  the 
last  five  years  is  43TW 

A.  Yes,  sir. 

Q.  So  that  the  last  five  years  is  less  than  the  average  of  the 
whole  ? 

A.  Yes,  sir. 

Q.  And  leaving  out  the  iast  five  years,  taking  the  average  of  the 
previous  years,  that  would  be;soinewhat  higher? 

A.  Yes,  sir. 

Q.  (By  Commissioner  Francis).  The  inference  is  that  the  last 
5 years  were  below  the  average? 

A.  Yes,  sir. 

Q.  (By  Mr.  Storrow.)  These  tables  which  you  have  put  in 
show  the  total  amount  of  water,  or  rather  indicate  the  total 
amount  of  water  passing  in  the  twenty-four  hours,  and  state  the 
amount  which  would  pass  each  second,  if  that  total  was  equally 
distributed  through  the  whole  twenty-four  hours.  Am  I right  in 
that  ? 

A.  Yes. 

Q.  Now  I wish  you  would  state  whether  the  water  of  the  Merri- 
mack river  does  come  to  the  Essex  Company’s  dam  at  Lawrence 


44 


Essex  Company. 


in  an  equal  amount  for  ever}^  second  of  the  twenty-four  hours,  or 
whether  it  varies  every  second  for  the  twenty-four  hours  ? 

A It  does  not  come  in  equal  quantities  throughout  the  whole 
twenty-four  hours,  and  the  proportion  varies  with  the  different 
heights  of  river.  When  a very  large  quantity  is  flowing  in  the 
river  it  is  more  nearly  constant  during  the  twenty-four  hours. 

Q.  Take  a quantity  of  about  2,400  feet  a second? 

A.  During  the  summer,  with  quantities  equivalent  to  an  ave- 
rage of  2,400  feet  a second,  I have  found  it  comes  about  in  this 
way  ; 4,200  cubic  feet  a second  about  twelve  hours  of  the  day,  and 
about  600  cubic  feet  a second  for  the  other  twelve  hours  in  the 
night.  When  there  are  2,400  cubic  feet  of  water  running  in  the 
river,  upon  the  average,  for  twenty  four  hours,  it  would  give  to  us 
4,200  feet  for  twelve  hours  the  day,  and  600  feet  for  the  twelve 
hours  of  the  night. 

Q.  Tell  me  how  you  know.  You  say  “ would  give  ” that ; how 
do  you  know  it  comes  that  way? 

A.  We  find  it  comes  that  way  by  our  measurements. 

Q.  You  know  it  does  come  that  way? 

A.  Yes,  sir. 

Q.  Now  I will  ask  you  with  water  coming  that  way*  equivalent 
to  an  average  flow  of  2,400  cubic  feet  a second,  for  the  twent}'- 
four  hours,  and  coming,  as  it  does  come  to  you,  4,200  cubic  feet  a 
second  for  the  working  hours,  and  600  — 

Commissioner  Francis.  He  has  not  said  which  twelve  hours. 

Witness.  I have  said  there  were  4,200  cubic  feet  during  twelve 
hours,  and  600  cubic  feet  during  twelve  hours. 

Q.  (By  Mr.  Storrow).  Which  twelve  hours  do  you  mean? 

A.  The  time  when  the  largest  quantity  comes  is  from  eight  in 
the  morning  until  eight  at  night. 

Q.  Now  when  the  water  comes  in  that  condition  which  }^ou  have 
stated,  4,200  feet  a second  during  the  twelve  day-hours,  from  eight 
in  the  morning  until  eight  at  night,  and  600  feet  a second  during 
the  night,  I want  to  know  whether  by  the  Essex  Works  at  Law- 
rence the  Essex  Company  are  enabled  to  concentrate  the  whole  of 
that  water  into  the  twelve  working  hours  during  which  the  mills 
are  worked  at  Lawrence,  say  from  half-past  six  in  the  morning 
until  half-past  six  at  night? 

A.  The  works  do  enable  it  to  be  used  with  a certain  loss  of  head 
from  the  pond  to  the  river  below. 

Q.  That  is,  with  a certain  loss  of  head,  by  drawing  down  the 
mill  pond  to  a certain  point,  you  can  concentrate  all  that  water  so 
as  to  use  4,800  feet  per  second  from  6.30  in  the  morning  until  6.30 
at  night? 

A.  Yes,  sir. 

Q.  And  have  nothing  running  to  waste  at  night? 

A.  Yes,  sir. 

Q.  And  if  you  can  concentrate  it  into  12  hours,  I assume  you 
can  concentrate  it  into  14  hours  with  less  loss  of  head. 

A.  Yes,  sir. 

Q.  And  how  about  concentrating  it  into  16  hours? 

A.  It  can  be  concentrated  into  16  hours  with  less  loss  of  head. 


H.  F.  Mills. 


45 


Mr.  Butler.  That  is  by  drawing  on  the  pond  enough  during 
the  dajr  you  can  do  this  ? 

Mr.  Storrow.  Yes. 

Q.  Now,  taking  the  definition  of  a mill-power,  which  is  in  the 
Essex  Co.’s  indentures,  state  how  many  mill-powers  you  can  sup- 
ply by  a judicious  use  of  the  dam  at  Lawrence  from  6.30  in  the 
morning  till  6.30  at  night,  when  the  river  is  furnishing  4,200  feet 
a second  from  8 A.  M.  to  8 P.  M.,  and  600  feet  per  second  during 
the  other  12  hours,  making  due  allowance  for  the  amount  of  head 
which  you  may  lose  by  drawing  down  the  pond  to  enable  you  to 
concentrate  the  water? 

A.  The  whole  being  used  in  12  hours,  I understand  you. 

Q.  Yes,  sir. 

A.  186  mill-powers. 

Q.  That  is,  allowing  for  the  loss  of  head  in  consequence  of 
drawing  down  the  pond  as  much  as  required  in  consequence  of 
concentrating  ? 

A.  Yes,  sir. 

Q.  Now,  I will  ask  you,  on  making  the  same  allowance,  how 
many  mill-powers  you  can  supply,  to  be  used  fourteen  hours  a day, 
under  the  same  circumstances  ? 

A.  I have  not  made  a calculation  of  that. 

Q.  Can  you  give  me  sixteen  hours? 

A.  145  mill-powers ; and  fourteen  hours  would  be  nearly  half- 
way between. 

Q.  Will  you  tell  me  what  is  the  fall  available  at  Lawrence 
under  the  circumstances  I have  mentioned,  when  you  concentrate 
all  that  water  into  sixteen  hours  a day  ? 

A.  It  would  be  30  feet  fall. 

Q.  Tell  me  how  many  cubic  feet  per  second  would  be  required 
for  a mill-power  with  that  fall? 

A.  24.8  cubic  feet  per  second  with  a 30  feet  fall. 

Q.  That  was  when  you  concentrated  it  into  twelve  hours  ? 

A.  That  was  sixteen  hours. 

Q.  When  you  concentrate  it  into  twelve  hours,  how  many  feet 
would  be  the  fall  under  the  same  circumstances? 

A.  28.9. 

Q.  And  how  many  cubic  feet  per  second  does  it  take  for  a mill- 
power  under  those  circumstances? 

A.  25.6. 

Q.  Please  go  back  and  go  over  those  figures  again  ? 

A.  With  2,400  cubic  feet  of  water  per  second  through  the 
twenty-four  hours,  this  can  be  concentrated  and  used  in  twelve 
hours  as  it  ordinarily  comes  to  us  at  Lawrence,  giving  us  186  mill- 
powers. 

Q.  With  how  much  head? 

A.  With  a fall  of  28.9  feet. 

Q.  And  how  many  cubic  feet  of  water  per  power? 

A.  The  quantity  for  a mill-power  being  25.6  feet  of  water. 

Q.  Now  take  it  for  the  sixteen  hours? 

A.  The  number  of  mill-powers  is  145,  the  fall  is  thirty  feet,  and 
the  quantity  per  mill-power  24.8  cubic  feet. 

[. Adjourned  till  11  A.  M.  Tuesday , Sept.  12th,  1876.] 


46 


Essex  Company. 


Boston,  Sept.  12,  1876. 

The  hearing  was  resumed  at  11  o’clock,  A.M. 

Mr.  Storrow.  — I now  put  in,  sir,  all  the  charters,  papers  and 
statutes  which  I read  and  referred  to  yesterday. 

Charles  S.  Storrow. — Sworn . 

Q.  (By  Mr.  J.  J.  Storrow.)  Mr.  Storrow,  please  state  }rour 
profession  and  present  occupation  ? 

A.  Civil  Engineer  by  education  and  profession.  I have  been 
thirty  }^ears  or  more,  from  the  origin  of  the  Essex  Co.,  its  treas- 
urer and  chief  manager. 

Q.  Whether,  or  not,  the  Essex  Co.,  under  the  charter  which  we 
put  in,  built  a dam? 

A.  They  did.  Commenced  and  finished  it  under  my  direction. 

Q.  When  was  it  finished? 

A.  In  the  year  1848. 

Q.  And  can  you  state,  in  round  numbers,  the  cost,  without 
being  precisely  accurate,  of  the  dam  and  the  canals  — both  canals? 

A.  The  dam  cost  about  $250,000,  and  the  north  canal  and  its 
gates  and  weir  about  the  same  amount,  about  $250,000. 

Q.  And  the  south  canal? 

A.  The  south  canal  $150,000  in  round  numbers  as  far  as  now 
finished,  as  it  stands. 

Q.  Now  I will  ask  you  how  many  mill-powers  you  can  use,  or 
what  the  capacity  of  the  north  canal  enables  you  to  draw  through 
it. 

A.  We  have  had  145  or  more  running  through  it.  We  have 
not  sold  that  number.  I don’t  mean  used  by  the  mills,  but  have 
been  passed  through  the  canals. 

Q.  I will  ask  you  about  the  capacity  of  the  south  canal ; how 
many  mill-powers  or  what  proportion  it  bears  to  the  north  canal  ? 

A.  The  south  canal  was  constructed  with  a view  to  utilize 
about  two-thirds  of  the  amount  used  on  the  north  canal ; the  head- 
gates  are  exactly  two-thirds  of  the  size  of  those  on  the  north 
canal. 

Q.  I will  ask  3^011  now  about  the  ability  of  the  Essex  Co.  to 
extend  the  length  of  the  south  canal  in  case  the3”  want  more  area 
for  mill-sites  between  the  canal  and  the  river  ? 

A.  The  Essex  Co.  own  the  land,  and  can  extend,  at  their  pleas- 
ure, the  south  canal  nearly  a mile  be3Tond  where  it  now  terminates. 

Q.  The  land  terminates  at  what  point? 

A . The  Shawshine  River.  The3'  own  all  the  land  for  a consi- 
derable distance  back  from  the  Merrimac  River,  far  back,  far  in- 
land from  the  canal. 

Q.  Without  regard  to  the  expense  of  extending  or  building  a 
canal,  whether  the  head-gates  which  are  now  built  would  need  to 
be  changed  or  enlarged  if  3^011  had  occasion  to  extend  that 
canal ? 


C.  S.  Storrow. 


47 


A.  Not  at  all.  The  head-gates  were  made  for  the  use  of  that 
whole  canal,  and  at  the  canal  where  it  now  terminates  is  placed  a 
cut-off,  a water-tight  partition,  so  that  the  canal  can  be  extended 
a thousand  feet,  two  thousand  feet,  or  three  thousand  feet,  as  might 
be  required,  without  interfering  with  its  use  as  a full  canal,  as  it  now 
stands. 

Q.  And  about  the  expense  of  the  gates,  as  compared  with  the  or- 
dinary work  of  the  rest  of  the  canal  ? 

A.  It  is  very  much  larger,  of  course  ; it  is  difficult  and  dangerous 
work,  especially  as  those  head-gates  had  to  be  put  in  a good  many 
years  after  the  dam  had  been  built  and  the  water  raised,  and  there- 
fore had  to  be  put  in  against  the  water  of  the  river. 

Q.  I will  ask  j^ou  now  whether  the  Essex  Co.  spent  money  in 
New  Hampshire  in  improving  the  water-power  of  the  Merrimack 
River,  under  the  charter  of  the  Winnepiseogee  Lake  Cotton  and 
Woollen  Manufacturing  Co.,  putin  yesterday  ; and  if  so,  how  much 
they  expended  ? 

A.  We  did.  The  whole  expenditure  there  was  some  $500,000 
or  $600,000  ; I cannot  exactly  say  what  proportion  has  been  paid 
by  the  Essex  Co.  — perhaps  $200,000,  that  is,  in  round  numbers. 
The  larger  portion  was  paid  by  our  associates  at  Lowell. 

Q.  Why  did  they  pay  a larger  proportion?  Had  they  any 
large  ownership  in  the  property  ? 

A.  No  ; their  ownership  is  the  same,  but  they  wanted  the  use  of 
it  long  before  we  did,  because  their  powder  was  practically  exhausted 
before  we  had  sold  more  than  a quarter  part  of  ours,  and  so  they  paid 
more  than  half  of  the  early  payments.  Now,  the  use  is  more  nearly 
alike,  but  they  have  still  use  for  more  than  we  have.  We  own  it  in 
equal  portions,  and  for  a long  time  we  have  paid  equally. 

Mr.  Storrow.  I now  put  in  the  deeds  of  the  ownership  of  the 
land. 

Mr.  Butler.  I should  not  care  to  trouble  you  to  put  those  in. 

Mr.  Storrow.  I offer  deeds  showing  the  ownership  of  the  land 
described  in  the  petition,  which  is  substantially  the  land  shown 
inside  of  the  red  lines,  the  original  purchase  of  the  land  inside  the 
red  lines,  and  I ask  your  attention  to  the  fact  that  the  deeds  which 
we  have  of  the  parcels  where  the  two  ends  of  the  dam  abut,  and 
the  river  front  above  and  below  it,  are  without  any  restrictions,  so 
that  we  have  acquired  by  those  the  ordinary  rights  of  riparian 
proprietors. 

Mr.  Butler.  I understand  the  fact  to  be  that  you  cannot  flow 
any  higher  than  you  do  now. 

Mr.  Storrow.  No,  sir ; that  was  a fixed  point  under  our 
charter,  and  it  is  established  forever.  We  cannot  raise  our  dam 
any  higher. 

Q.  And  I will  ask  you  whether  all  the  flowage  damages  which 
have  been  claimed  against  you,  have  been  settled  and  paid  for? 

A.  Yes,  sir  ; twenty-five  years  ago. 

Q.  I will  ask  you  to  state,  in  general  terms  to  the  commission- 
ers, what  river-front  you  own  on  the  south  side  of  the  river  now? 

A.  You  mean  how  far  we  have  sold? 


48 


Essex  Company. 


Q.  What  have  you  sold  on  the  river-front  from  the  dam  down 
to  the  Shawshine? 

A.  On  the  south  side  ? 

Q.  On  the  south  side? 

A.  We  have  sold  simply  what  is  marked  on  this  plan  ; perhaps 
800  or  900  feet ; those  three  or  four  little  small  sites. 

Q.  Not  over  a thousand  feet  in  all? 

A.  I think  not.  I think  not  so  much  as  a thousand.  Let  me 
see,  I can  tell  you.  Not  more  than  600  feet  I think  front  on  the 
south  side. 

Q.  I will  ask  you  now  how  much  land  you  still  own  on  the 
south  side  of  the  river  and  have  for  sale  ? 

A.  In  round  numbers,  some  600  acres. 

Q.  And  can  }-ou  point  out  about  where  it  is  on  this  plan  ? 

A.  We  own  the  whole  of  that  front  on  the  river  where  the  canal 
is  to  be  extended.  We  own  that  square  next  but  one  below  Union 
street;  the  square  next  below  Union  street  being  sold  to  the 
Eastern  Railroad  for  a station.  We  own  the  whole  of  this  other 
square.  We  own  two-thirds  of  the  next  square,  a portion  being 
taken  by  the  Boston  & Maine  Railroad  for  a station ; and,  in 
general,  we  own  pretty  much  all  that  region  east  of  a north  and 
south  line  drawn  through  the  mill-sites  sold,  and  also  west  of 
Broadway. 

Q.  That  is,  you  have  sold  out  some  land  lying  near  the  end  of 
the  river-bridge  and  the  new  mills,  a circle  about  there,  and  some 
scattered  lots  beyond  it. 

A.  We  have  sold  land  there. 

Q.  About  how  many  acres  have  you  sold  ? 

A.  I think  we  called  it,  some  3^ears  ago,  about  800  acres  that 
we  owned,  and  we  perhaps  have  600  now,  and  that  is  perhaps  as 
near  as  I can  give  it  to  you. 

Q.  And  the  land  which  you  have  sold,  as  I understand,  centres 
chiefly  about  the  railroad  station? 

A.  About  the  railroad  station  and  those  little  mills. 

Q.  Who  has  had  charge  of  the  sale  of  land  and  water-power  by 
the  Essex  Co.  ? 

A.  I have  had  charge  always. 

Q.  Now  I will  ask  you  how  many  mill-powers  jtou  have  sold 
under  the  form  of  indenture  which  is  marked  “ C.S.S.l  ? ” 

A.  One  hundred  and  two. 

Commissioner  Russell.  It  is  marked  “form  of  indenture  used 
for  102  mill-powers  sold  prior  to  first  of  Januaiy,  1865,  on  north 
canal.” 

Q.  (By  Commissioner  Francis.)  Is  this  all  on  the  north 
canal  ? 

A.  Yes,  sir ; these  were  all  on  the  north  canal,  and  they  were 
all  that  were  sold  anywhere  prior  to  Januaiy  1,  1865. 

Q.  (B}r  Mr.  Storrow.)  And  how  man}-  mill-powers  have  you 
sold  under  the  paper  marked  “ C.S.S.2,”  which  is  marked  “ form 
of  indentures  used  for  seven  mill-powers  sold  on  south  canal, 
adopted  September  28,  1866  ” ? 

A.  Seven.  I ma}T  state  there  is  one  slight  difference  in  those 


C.  S.  Storrow. 


49 


indentures  where  we  sold  to  some  small  companies,  where  we 
allowed  them  to  put  up  wooden  mills,  and  the  larger  companies 
were  restricted  to  brick  ; some  petty  paper-mills  and  others  had  a 
clause  allowing  them  to  use  wood. 

Mr.  Butler.  That  is,  all  the  mill-powers  are  not  the  same 
size? 

Mr.  Storrow.  They  are  all  the  same  size. 

Witness.  The  same  definition.  That  article  is  unchanged. 

Q.  (By  Mr.  Storrow.)  How  many  mill  powers  have  you  sold 
under  the  form  of  indenture  marked  “ C.S.S.3,”  marked  “ form  of 
indentures  used  for  13  mill  powers,  sold  Oct  1st,  1869,  on  north 
canal,  article  16?” 

A.  Thirteen. 

Q.  I will  ask  you  now  whether  the  mills  at  Lawrence  holding 
their  waterpower  under  the  Essex  Co.  have  used  and  paid  you  for 
the  use  of  surplus  water  under  and  according  to  the  terms  of  the 
paper  “ C.S.S.4,”  marked  “ regulations  for  the  use  of  surplus 
water-power,  adopted  Sept.  7th,  1870?” 

A.  Yes,  sir  ; for  surplus  power  under  the  regulations  ; prior  to 
that  time  no  account  had  been  taken  of  surplus  power. 

Q.  (By  Mr.  Butler.)  What  is  that? 

A.  Prior  to  that  time  no  charges  had  been  made  for  surplus 
power. 

Commissioner  Francis. — What  date  is  it? 

Mr.  Storrow. — The  date  is  Sept.  7th,  1870.  You  will  observe 
that  this  is  about  the  time  that  Mr.  Mills  came  to  the  Essex  Co. 

Q.  Will  3'ou  state  how  much  you  have  received  during  the  last 
five  }Tears  for  the  use  of  surplus  power  in  the  mills  at  Lawrence 
under  the  regulations,  Exhibit  C.S.S.4? 

A.  During  the  five  years,  January  1st,  1871,  to  January  1st, 
1876,  have  received  as  the  aggregate  of  that  five  years  $219,447  for 
the  use  of  surplus  water-power. 

Q.  Under  these  regulations? 

A.  Under  these  regulations. 

Q.  Can  3rou  also  tell  me,  or  have  you  prepared  a table  which 
shows  for  each  quarter  during  that  period  the  amount  of  surplus 
power  that  was  used,  stating  it,  if  you  please,  not  exactly  how 
much  was  used  on  each  day,  but  what  average  through  the  quarter 
the  amount  actually  used  was  equivalent  to. 

A.  I hold  here  a paper  showing  the  average  daily  use  of  surplus 
mill-powers  for  each  quarter,  from  January  1st,  1871,  to  January 
1st,  1876. 

Q.  And  does  the  same  paper  also  show  fhe  amount  of  money 
you  have  received  during  each  quarter  for  the  use  of  surplus 
power  ? 

A.  The  same  paper  shows  the  amount  of  mone3T  received  each 
quarter  for  the  five  years,  that  is  from  the  commencement  of  our 
charges  for  surplus  power.  Before  that  time  we  had  taken  no 
account  of  it. 

Commissioner  Russell. — The  paper  is  marked  “ C.S.S.5,” 
“ Essex  Co.,  surplus  power  sold  in  5 years.” 

7 


50 


Essex  Company. 


Q.  (By  Mr.  Storrow.)  I will  ask  you  to  read  and  explain  the 
remarks  which  are  in  the  last  column  on  that  page? 

A.  The  remark  here,  “ amount  received  by  the  Essex  Co.  for 
surplus  power  in  five  37ears,  $219,447,”  being  an  average  for  one 
year,  for  each  year,  $43,849.40.  The  average  of  the  whole  used 
was  19.955  mill-powers,  which  I call  20  mill-powers.  The  average 
used  for  all  that  time  was  20  surplus  mill-powers ; 20  mill-powers, 
at  the  rate  of  $2194  a year,  would  produce  just  that  amount ; so 
that  we  actually  received  $2,194  a }7ear  for  each  surplus  mill-power 
during  those  5 years.  That  is  to  say,  if  those  mill-powers  were 
rented  for  $2194  a year  for  each,  it  would  have  given  us  exactly 
what  we  did  receive.  I further  calculated  that  36.57  mill-powers, 
at  $1200  a year,  would  have  produced  the  same  amount  — 36.^ 
mill-powers,  you  may  call  it,  would  produce  just  the  same 
amount.  Thus,  for  the  5 consecutive  years  the  Essex  Company 
received  for  surplus  power  $2194  per  3’ear  for  mill  power,  instead 
of  $1200,  the  price  of  permanent  powers.  $2194  is  6 per  cent,  on 
a capital  of  $36,577  ; and  further,  a mill-power  used  seven  months, 
at  the  rate  of  $2194  a year,  produces  $1280  ; thus  we  have  received 
as  much  for  a temporary  mill -power  used  7 months,  as  for  a per- 
manent and  leased  mill-power  used  12  months,  the  rate  for  that 
being  $1200. 

Q.  Now  I will  ask  }'ou  to  state  what,  in  your  judgment,  is  the 
value  of  a mill-power  to  the  Essex  Company  to  be  used  on  the 
premises,  and  under  the  terms  and  conditions  expressed  in  the 
indentures,  and  then  to  state  the  reasons  which  led  you  to  fix  the 
value  you  mention  ; and  I mean  by  my  question  to  include  the 
whole  value  to  the  Essex  Company  in  every  aspect? 

A.  I consider  the  value  to  us,  or  what  we  receive  as  the  com- 
pensation for  the  sale  of  a mill  power  at,  I cannot  fix  it  ex- 
actly, but  perhaps  a little  short  of,  $40,000  — between  $35,000 
and  $40,000. 

Mr.  Butler.  I want,  when  the  advantage  of  the  sale  of  lands 
comes  in,  to  object  to  that  as  too  remote. 

Mr.  Storrow.  It  is  going  to  come  in  now. 

Witness  This  answer  includes  not  merely  the  rental  of  the 
power  but  the  advantage  we  derive  from  its  use  on  the  very  spot 
where  we  sell  it,  and  where  we  confine  it  to  be  used. 

Q.  (By  Mr.  Butler.)  And  that  advantage  you  derived  from 
the  sale  of  lands  ? 

A.  Yes,  sir. 

Mr.  Butler.  I object  to  that  part  of  it. 

Q.  (By  Mr.  Storrow.).  Now  go  on  and  state  how  you  arrive 
at  those  figures  ; what  leads  you  to  state  that  amount? 

Commissioner  Russell.  I don’t  know  whether  you  will  require 
a ruling  upon  that  at  this  stage  or  not. 

Mr.  Storrow.  I don’t  care  for  a ruling  upon  it  now ; it  is  a 
question  to  be  considered  whether  it  is  too  remote  or  not. 

Mr.  Butler.  I think  it  is  too  remote  and  speculative,  because 
the  same  speculative  value  of  lands  can  be  realized  by  the  use  of 
steam  power,  or  any  other  power,  and  it  is  a value  made  a matter 
of  speculation.  There  have  been  times  when  the  Essex  Company 


C.  S.  Storrow. 


51 


could  not  sell  their  lands  for  anything,  and  there  were  times  when 
they  could  sell  them  for  very  large  amounts,  and  there  were  times 
when  they  could  sell  them  for  very  little,  and  therefore  it  is  not  a 
steady  element  which  ought  to  be  taken  into  consideration.  It  is 
an  advantage  which  they  derive  in  common  with  other  people  own- 
ing land  in  their  neighborhood.  If  there  is  anything  further  about 
that,  I can  prove  it.  I think  we  may  assume  that  all  lands  rise  in 
the  neighborhood,  and  this  belongs  as  well  to  the  other  owners  as 
to  the  Essex  Company  ; and  if  that  is  an  element  of  damage  to  be 
seized  upon  in  favor  of  the  Essex  Company,  I don’t  see  why  every 
other  man  who  owns  land  in  the  neighborhood,  and  who  has  had 
his  power  taken  away  from  him,  cannot  come  in  and  file  a claim  for 
damages  as  well  as  the  Essex  Company  ; and  where  is  it  to  stop? 
It  is  like  damages  that  result  from  a new  public  work  ; when  rail- 
roads were  first  built  men  came  in  and  claimed  for  damages  to 
their  taverns  by  having  a turnpike  discontinued,  and  various 
matters  of  that  sort  arose ; and  the  courts  have  invariably  held 
that  that  was  too  remote  and  too  speculative.  If  you  take  that 
into  consideration,  I shall  want  it  to  go  into  your  report.  If  you 
don’t  take  it  into  your  consideration,  then  you  will  say  that,  and 
give  them  the  advantage  that  you  want  to. 

Commissioner  Russell.  I suppose  the  question  will  be  what 
order  ought  to  be  taken  on  the  objection  raised  as  to  the  testi- 
mony. 

Mr.  Merwin.  I suppose  there  is  no  question  but  what  this  pre- 
cise interrogatory  is  competent.  In  reference  to  the  general  ques- 
tion which  Gen.  Butler  raises,  I suppose  the  Commissioners  will 
not  pass  upon  that  now. 

Mr.  Butler.  I don’t  expect  them  to  pass  upon  it  now. 

Commissioner  Russell.  I dont  see  how  it  would  be  possible  to 
exclude  the  testimony  if  it  is  given  in  the  shape  of  reasons  for 
value ; it  would  be  then  for  us  to  determine  whether  we  should 
give  the  same  weight  to  these  reasons  in  coming  to  a conclusion  ; 
and  whether  they  should  be  mentioned  in  our  report  or  not,  would 
depend  upon  the  question  whether  we  are  expected  to  set  forth  all 
the  questions  of  law  which  are  involved  in  the  trial  and  our  rulings 
upon  them. 

Mr.  Abbott.  I was  going  to  suggest  in  reference  to  it  that  in 
your  report,  as  brother  Merwin  acted  with  both  of  your  associates 
in  half  a dozen  cases,  you  could  set  forth  in  a paper  annexed  the 
grounds  for  allowing  damages  under  certain  circumstances,  and, 
I suppose,  in  that  way  both  parties  would  have  all  other  legal 
points  raised  without  any  trouble. 

Commissioner  Russell.  Then  we  may  understand  it  to  be  the 
request  of  both  parties  that  we  should  set  forth  upon  this  specific 
question  whether  we  have  allowed  as  part  of  the  damages  the 
damage  done  to  the  value  of  the  land  held  for  purposes  of  sale  by 
the  Essex  Company. 

Mr.  Butler.  That  would  not  exactly  be  the  way  I should 
desire  it  to  be  stated.  It  strikes  my  mind  in  another  way, — for  the 
prospective  value,  which  if  they  had  the  water  they  would  make  ; 
it  is  not  the  damage  done  to  the  present  value. 


52 


Essex  Company. 


Commissioner  Russell.  I don’t  know  whether  Mr.  Storrow 
meant  to  say  that  or  not ; of  course  he  has  not  yet  stated  whether 
it  is  that  allowance  for  which  he  claims  the  damage,  or  whether 
it  is  the  present  damage  which  is  done  to  the  value  of  their  land, 
as  it  now  stands,  by  the  taking  of  the  water,  or  the  future  dam- 
age ; he  has  not  yet  stated  that. 

Mr.  Storrow.  I should  say  it  is  not  the  land  which  we  are 
hereafter  going  to  buy  which  will  be  injured,  but  the  land  we  own 
now. 

Commissioner  Russell.  The  question  is,  whether  it  is  the 
present  damage  to  the  value  of  the  land  or  the  prospective.  We 
expect  in  our  report  to  state  the  question  and  our  ruling. 

Mr.  Butler.  Before  we  get  through  I will  endeavor  to  bring 
it  from  Mr.  Storrow  exactly  how  these  things  are  made  up,  and 
then  we  can  have  the  questions  raised  upon  them. 

Q.  (By  Mr.  Storrow).  Now,  please  go  on  and  state  the 
reasons  which  will  lead  to  the  conclusion  that  a mill-power  at 
Lawrence  is  worth  to  the  Essex  Company  from  $35,000  to  $40,000  ? 

A.  When  we  sell  a mill-power,  as  we  have  done  for  many 
years  past  by  our  leases,  we  become  entitled  to  $1,200  a year  rent, 
representing  a capital  of  $20,000.  That  is,  solely  for  a right  to 
draw  the  amount  of  water  defined  as  a mill-power  from  our  canal. 
As  a necessary  adjunct,  and  to  enable  them  to  use  that  power, 
they  must  have  land  through  which  that  water  producing  the 
power  is  to  come,  and  for  which  of  course  they  pay  us.  In  addi- 
tion to  that,  it  is  almost  inevitable  that  they  want  a certain  amount 
of  land  for  some  out-houses  connected  with  their  concern.  I 
speak  there  of  the  sale  to  the  person  who  comes  and  treats  with 
us  for  one  mill-power.  I can  exemplify  that  by  the  very  last 
sale  we  made  of  one  mill-power  to  Mr.  Thomas  Greenbank,  the 
last  one  that  went  into  operation. 

Q.  That  is  one  of  these  little  mills? 

A.  That  is  one  of  these  little  mills  which  you  saw  on  the  south 
side.  He  treated  with  me  for  one  mill-power,  and  agreed  to  pay 
$1,200  a year  rent  for  the  power. 

Q.  Did  he  take  it  under  one  of  those  south  side  canal  inden- 
tures ? 

A.  Precisely  ; it  is  one  of  those  seven. 

Q.  By  that  power  you  mean  what? 

A.  I mean  the  right  which  is  defined  by  that  south  side  inden- 
ture. He  purchased  at  the  same  time  a lot  of  land  on  which  to 
erect  a mill,  and  use  the  power,  for  which  he  paid  $6,000  ; he  also 
purchased,  for  a house  lot  for  himself  and  for  some  of  his  operatives, 
another  piece,  for  which  he  paid  $10,500.  That  single  sale  of  that 
one  power  to  that  man,  the  last  we  made,  gave  us  from  him  what 
is  equivalent  to  $36,500,  and  that  is  very  much  a specimen  of  the 
ordinary  way  ; and  that  is  exclusive  of  such  value  as  we  may  make 
from  sales  to  his  overseers,  and  to  the  population  he  brings  there, 
and  to  those  who  supply  them. 

Q.  Now  I will  ask  you  to  take  the  value  of  the  Essex  Com- 
pany’s south  side  lands,  before  they  started  to  put  the  canal  in, 
and  the  amount  of  sales  you  have  made  from  the  organization  of 


C.  S.  Storrow. 


53 


the  company  up  to  that  present  time,  and  then  compare  them  with 
the  value  of  those  lands  since  you  have  opened  your  canal  there, 
and  the  amount  of  sales  }Tou  have  made  since  that  time? 

Mr.  Butler.  That  is  open  to  the  same  objection. 

Q.  (B}t  Mr.  Storrow.)  That  is,  to  compare  the  values  of  the 
land  and  the  briskness  of  the  sales,  from  1845  to  1865,  when  you 
determined  to  put  a canal  there,  and  during  those  20  years,  with 
the  values  of  the  sales  from  1865  to  the  present  time? 

A.  The  amount  of  land  sold  on  the  South  side  from  the  begin- 
ning of  our  operations  in  1845  to  the  year  1860. 

Q.  (By  Mr.  Butler.)  Will  you  give  me  the  date  of  Mr. 
Greenbank’s  sale? 

A.  I think  it  was  some  time  in  1872.  The  land  sales  for  many 
years  on  that  side  were  but  nominal,  and  I have  not  got  with  me 
an  account  of  them  prior  to  1860 ; they  were  merged  in  with 
others,  and  they  were  a mere  trifle ; but  I have  made  a table  start- 
ing from  the  first  of  May,  1860,  and  coming  down  to  the  present 
time. 

Mr.  Butler.  This  table  we  object  to  as  evidence ; an  objec- 
tion that  it  is  not  evidence  in  itself,  independent  of  the  other  ob- 
jection. 

Commissioner  Russell.  Then  you  object  to  the  table? 

Mr.  Butler.  I mean  to  object  to  the  table  as  not  being  evi- 
dence, independent  of  the  question  that  it  is  mere  speculation  and 
of  remote  value.  I mean  to  say  that  their  acts  for  a series  of 
years  are  not  evidence,  and  such  acts  of  theirs  for  a series  of  years 
are  not  evidence. 

Commissioner  Russell.  Not  evidence  of  the  values  of  lands 
sold  at  different  periods? 

Mr.  Merwin.  We  put  this  in  as  showing  sales  that  have  been 
made. 

Mr.  Storrow.  Showing  actual  sales? 

Mr.  Merwin.  The  Court  has  held  that  that  is  the  best  evi- 
dence that  we  can  furnish. 

Commissioner  Russell.  Well,  Gen.  Butler,  do  you  object  to 
the  offer  to  prove  the  sales  as  proving  the  value  of  the  land,  or  do 
you  object  to  proving  the  value  of  the  land  ? 

Mr.  Butler.  I object  to  both ; I object  to  the  effect  of  evi- 
dence to  prove  the  value  of  the  land. 

Commissioner  Russell.  That  was  your  first  objection. 

Mr.  Butler.  It  was ; and  then  I object  to  the  vehicle  of 
proof,  the  manner  of  proof. 

Commissioner  Russell.  The  first  objection  I understand  to 
be  the  original  objection  which  you  took  at  the  outset? 

Mr.  Butler.  Yes,  sir  ; and  I also  think  it  is  not  competent  to 
prove  the  value  of  the  land  of  the  Essex  Company  by  showing  how 
they  have  sold  it. 

Commissioner  Russell.  It  seems  to  me  I must  pass  upon  that 
as  a distinct  question. 

Mr.  Butler.  Yes,  sir.  Then  I object  to  this  method  of 
proving  it. 


54 


Essex  Company. 


Commissioner  Russell.  What  do  I understand  by  method ; 
that  is,  proving  by  this  witness  the  value  of  the  sales? 

Mr.  Butler.  Proving  by  this  witness  from  a copy  of  which  he 
can  have  personally  no  knowledge. 

Mr.  Storrow.  He  has  already  testified  that  he  made  the  sales 
personally. 

Q.*(By  Mr.  Merwin.)  Mr.  Storrow,  these  sales  were  all  made 
personally  by  you,  were  they? 

A.  The  deeds  were  all  signed  by  me,  and  the  price  were  all 
fixed  by  me. 

Q.  From  what  did  you  make  that  memorandum? 

A.  From  the  books  of  the  company  in  my  possession. 

Q.  At  the  time  these  entries  were  made,  did  you  know  they 
were  correct  and  true  ? 

A.  I did. 

Q.  That  is,  that  the  figures  were  correct  at  the  time  ; you  had  a 
personal  knowledge  of  them  ? 

A.  Yes,  sir. 

Q.  And  this  memorandum,  which  you  now  produce,  is  a correct 
one? 

A.  Yes,  sir. 

Q.  And  you  use  it  as  a memorandum? 

A.  I use  it  as  a memorandum  to  show  the  value  — 

Mr.  Butler.  Wait  one  moment,  Mr.  Storrow.  There  might 
be  other  books  showing  sales. 

Mr.  Storrow.  I propose  to  put  this  in  as  a statement  of  the 
whole  of  the  sales  during  the  period  covered. 

Mr.  Butler.  We  don’t  care  to  argue  the  guestion.  I am  de- 
fining my  objection,  that  is  all  I care  for.  I can  argue  it  by  and 
by. 

Commissioner  Russell.  If  the  value  of  the  land  is  held  to  be 
competent,  I suppose  it  is  competent  to  prove  it  by  the  sales  ; and, 
if  Mr.  Storrow  is  the  one  who  made  the  sales,  he  can  refer  to  a 
table  to  refresh  his  recollection  of  the  prices  which  were  paid ; 
and  if,  by  referring  to  that  table,  he  is  able  to  refresh  his  recollec- 
tion of  the  prices  at  which  those  sales  were  made,  he  can  state 
them. 

Witness.  The  object  of  this  table  was  for  me  to  see  what  the 
sales  had  been  before  laying  out  the  canal  on  the  south  side,  and  to 
see  what  they  had  been  subsequently,  and  to  see  if  any  marked 
change  had  taken  place. 

During  the  five  years,  1860,  1861,  1862,  1863  and  1864  the 
average  sales  on  the  south  side  were  $2,057.83  a year,  the  aggre- 
gate sales  in  five  }'ears  were  say  $10,300  ; that  is,  to  the  first  of 
May,  1864.  From  the  first  of  May,  1860,  to  the  first  of  May, 
1864,  and  during  those  five  years,  the  valuation  by  the  city  asses- 
sors was  not  changed  a dollar  ; it  was  $297,850,  the  city  assessors’ 
valuation  of  that  land. 

Q.  (By  Mr.  Storrow.)  Now  I will  ask  you  whether,  in  your 
opinion,  the  valuation  of  the  assessors  during  those  years  was 
correct  ? 

A.  It  was  high  enough,  sir  ; I had  no  reason  to  object  to  it.  I 


C.  S.  Storrow. 


55 


run  from  the  first  of  May  each  year  to  the  first  of  May  succeeding, 
because  that  makes  the  financial  year  of  the  Essex  Company,  and 
it  is  also  the  date  of  taxation.  Between  the  first  of  May,  1864, 
and  the  first  of  May,  1865,  the  south  canal  was  determined  upon 
and  laid  out.  That  year  the  Essex  Company  sold  $18,668.81 
worth  of  land,  and  the  assessors  raised  the  valuation  to  $391,550  ; 
and  the  following  year,  from  1865  to  1866,  the  work  of  the  canal 
Was  fairly  begun,  some  $25,000  was  spent  towards  it ; the  sales  of 
land  were  $29,258.04.  The  next  year  the  work  of  the  canal  was 
in  full  progress,  and  three  mill-powers  were  sold  in  advance ; they 
could  not  be  furnished, because  the  canal  was  not  built;  they  were 
contracted  for.  The  next  year  the  land  sold  was  $34,642.04.  I 
farther  state  that,  when  we  sold  a site  on  which  to  build  a mill, 
we  don’t  call  that  a land  sale,  that  is  a water-power  sale ; its  price 
goes  into  our  water-power  account ; these  land  sales  which  I am 
stating  are  exclusive  of  that.  The  next  year  between  1867  and 

1868,  the  canal  was  completed,  and  the  water  was  let  in  ; com- 
pleted as  far  as  it  now  stands,  and  we  sold  $45,987.12. 

Q.  (By  Mr.  Somerby.)  What  of? 

A.  Land.  During  the  following  years,  from  Ma}T,  1868,  to  May, 

1869,  Davis  & Taylor’s  mill  went  into  operation  with  one  more 
mill-power,  and  we  sold  $96,963.26.  The  next  year,  from  May, 
1869  to  May,  1870,  there  was  no  change  in  the  canal  or  mills,  we 
sold  $43,090.56.  The  next  year,  between  May,  1870,  and  May, 

1871,  a second  mill  went  into  operation,  with  one  more  mill-power, 
that  was  the  Munroe  mill,  we  sold  $25,089.37.  The  next  year, 
from  May,  1871,  to  May,  1872,  there  was  no  change  in  the  mill- 
powers,  the  land  sold  for  $77,816.45.  The  next  year,  from  May, 

1872,  to  May,  1873,  the  Union  mill,  Greenbank’s  mill,  and  Ar- 
nold’s mill  were  built,  and  two  mill-powers  sold.  Arnold  was  a 
man  who  got  into  difficulty  and  the  mill  was  built,  but  was  never 
run,  and  the  sales  for  the  year  were  $124,153.41.  The  next  year, 
from  May,  1873,  to  May,  1874,  the  Union  mill  and  Greenbank’s 
went  into  operation,  they  were  erected  the  year  before,  and  this 
year  they  went  into  operation,  and  we  sold  $28,054.06.  These 
are  the  last  sales  of  mill-power.  The  following  year,  ending  May, 

1875,  the  sales  were  $7,365.34.  In  the  year  ending  May,  1876,  the 
sales  were  $850  ; that  is,  for  two  years  there  has  been  a perfect 
stagnation. 

Commissioner  Russell.  In  holding  that  actual  sales  were  ad- 
missible as  proof  of  value,  I meant  to  hold  that  proving  the  land 
sold,  and  what  was  realized  from  it,  was  proof  of  value  of  the  parcels 
of  land  sold. 

Mr.  Storrow.  Suppose  I now  prove  that  all  the  land  owned  in 
1860,  in  the  opinion  of  this  witness,  was  worth  $100,000,  and  dur- 
ing the  years  since  that  time  he  has  realized  about  $250,000,  and 
what  he  has  left  is  worth,  in  his  opinion,  $200,000? 

Mr.  Butler.  The  difficult}^  I find  is  this,  that  it  don’t  appear 
at  all  that  this  land  was  sold  at  any  higher  price  in  1875  or  in 

1876,  when  $800  worth  was  sold,  than  in  any  one  of  those  years. 
I should  infer  from  this  that  there  was  a stated  price  fixed  for 


56 


Essex  Company. 


men  to  come  and  take  as  they  choose,  and  how  that  shows  an  en- 
hanced value,  I cannot  conceive. 

Commissioner  Russell.  I don’t  understand  that  Mr.  Storrow 
proposed  to  show  an  enhanced  value,  but  simply  that  he  proposed 
to  show  the  value  of  the  land  which  the  Essex  Company  owned, 
or  the  value  of  the  land  which  was  affected  by  their  water  supply. 
Now,  Mr.  Storrow  is  undoubtedly  competent  as  an  expert  as  to  the 
value  of  lands  at  any  particular  period,  where  it  can  be  proved  by 
proving  the  sales  at  any  particular  period ; but  to  prove  the  sales, 
you  must  show  what  is  sold  as  well  as  what  is  realized  from  it. 

Mr.  Butler.  I take  it  the  land  was  worth  something,  so  that 
this  was  not  all  clear  gain  by  improved  mill-power,  and  I should 
say  if  the  land  was  going  to  increase  in  future,  then  by  the  sales 
they  had  only  impoverished  themselves  so  much.  I think  when 
they  put  in  the  value  of  the  land  what  the  land  sold  for,  showing 
an  increased  price  per  foot,  then  it  is  not  evidence  at  all. 

Mr.  Storrow.  We  have  already  put  in  the  fact  that  the  Essex 
Company,  in  1845,  owned  the  tract  pointed  out  on  the  map 
amounting  to  eight  hundred  acres ; then  since  that  time  they  have 
sold  two  hundred  acres,  and  they  have  got  about  six  hundred  left, 
and  he  has  pointed  out  on  the  map  what  we  had  originally,  and 
what  has  been  sold  since.  I don’t  mean  definitel}''  by  metes  and 
bounds,  but  substantially  by  the  location.  Now,  we  propose  to 
show  what  the  value  of  the  whole  eight  hundred  acres  was  before 
the  two  hundred  was  sold.  We  propose  to  show  the  value,  in  the 
opinion  of  the  witness,  of  the  six  hundred  acres  which  are  left,  and 
it  seems  to  us  that  that  would  tend  to  show  an  increase  of  the 
value  in  this  property  during  these  years,  and  it  will  be  a question 
for  you  to  consider  how  far  that  is,  and  how  far  that  is  not  attribut- 
able to  the  use  of  water  on  that  canal,  a part  of  which  is  withdrawn 
by  the  taking  of  Sudbury  river.  We  say  that  the  rise  in  value 
was  coincident  with  the  beginning  of  the  water  works  on  that  side. 

Commissioner  Russell.  When  you  speak  of  proving  the  value 
of  land,  I supposed  you  intended  to  prove  sales  in  the  ordinary 
way,  showing  what  was  sold,  and  what  it  realized. 

Mr.  Storrow.  That  can  be  done  if  necessary.  Of  course  it 
would  be  a long  operation  to  show  the  sales  of  lots  making  up  200 
acres. 

Witness.  I can  state  this  decidedly  that  they  are  not  the  most 
valuable  parts  of  our  land.  Our  policy  has  been  to  sell  rather 
outside  the  nucleus,  and  let  that  get  the  benefit  of  its  surroundings. 
You  saw  the  other  day  in  your  view  when  I took  you  round  that 
the  houses  were  mainly  built  a distance  off,  and  the  centre  is  much 
less  built  upon  as  it  is  much  less  sold. 

Mr.  Butler.  As  this  has  gone  in  up  to  this  time,  not  followed 
by  the  amount  which  any  land  brought,  any  given  piece  of  land, 
showing  any  rise  of  value,  it  is  wholl}"  irrelevant. 

Commissioner  Russell.  It  may  be  useful  in  connection  with 
what  Mr.  Storrow  proposes  to  give  to  show  what  the  value  is  and 
what  is  left. 

Mr.  Butler.  But  this  evidence  is  not  the  usual  way  for  him  to 
give  his  opinion  as  an  expert. 


C.  S.  Storrow. 


57 


Mr.  Storrow.  Now  I propose  to  go  a little  farther  and  to  ask 
him,  in  the  first  place,  with  regard  to  the  lots  which  he  has  sold, 
whether  the  value  of  those  lots,  the  prices  at  which  those  lots  have 
been  sold,  have  exceeded  what  in  his  opinion  was  the  value  of  the 
same  lots  in  1863. 

Q.  (By  Mr.  Storrow.)  Whether  the  price,  at  which  these  lots 
have  been  sold  have  exceeded  or  fallen  short  of  the  value  of  the 
same  in  1863.  What,  in  your  opinion,  was  the  value  of  the  same 
lots  in  the  spring  of  1863? 

A.  They  have  exceeded  the  value  of  1863  enormously. 

Mr.  Butler.  In  1863  there  was  only  $259.00  of  land  sales. 

Q.  (By  Mr.  Storrow.)  Will  you  state  now  how  much  the 
value  of  the  lots  which  the  Essex  Company  owned  on  the  south 
side  of  the  canal,  in  1863,  is  greater  at  present  than  it  was  in  1863, 
making  your  answer  include  the  same  parcels  of  land  ? I mean  to 
compare  the  value  of  the  land  which  the  Essex  Company  owned 
in  1863,  with  the  present  value  of  the  same  land,  including  both 
what  }rou  have  sold  and  what  you  have  still. 

A.  There  is  no  question  that  the  same  land  unsold  now  is  at 
least  four  times  as  valuable  as  it  was  in  1863. 

Q.  My  question  goes  beyond  that ; I want  you  to  state  the  val- 
ue of  the  lands  which  you  owned  in  1863  at  the  present  time. 
State  the  present  value  of  all  the  lands  which  you  owned  in  1863, 
as  compared  with  the  value  of  the  same  parcels  in  1863,  whether 
at  the  present  time  it  is  greater  or  less  than  it  was  then. 

A.  I say  it  is  fourfold  greater  at  least  than  it  was  in  1863. 

Commissioner  Russell.  Taking  at  the  two  dates,  the  same 
parcels  of  land  ? 

A.  Yes,  sir,  taking  the  same  parcels  of  land  which  was  worth 
$400  an  acre,  I have  sold  at  $5,000  an  acre. 

Q.  (By  Mr.  Storrow.)  I ask  you  if  the  prices  at  which  you 
have  sold  lands  were  higher  during  the  sales  of  the  last  few  years, 
than  the  value  of  those  lands  in  the  spring  of  1863  ? 

A.  Very  much  larger ; the  moment  the  canaL  was  projected  and 
done,  the  price  of  everything  else  rose  in  my  estimation  and  the 
estimation  of  others ; a great  impulse  was  given. 

Q.  Please  to  state  now  how  far,  in  your  opinion,  the  value  of  the 
land  on  the  south  side  is  affected  by  having  water-power  to  be  used 
there. 

Mr.  Butler.  I object  to  that  question  ; it  is  not  a question  for 
an  expert. 

Mr.  Storrow.  I can  put  it  in  another  way  if  it  is  less  objection- 
able. What  has  caused  the  rise  in  the  value  of  lands  in  his  opinion 
on  the  south  side? 

Mr.  Butler.  That  is  not  competent. 

Commissioner  Russell.  He  may  be  asked  what  is  the  present 
value  and  what  he  bases  his  opinion  upon. 

Mr.  Storrow.  You  have  stated  the  present  value  to  be  greater 
than  it  was  in  1863  ; please  give  the  reasons  which  led  you  to 
state  it. 

A.  Because  building  the  canal  there  gives  a great  demand  for 
work  where  there  was  none  before. 


8 


58 


Essex  Company. 


Mr.  Butler.  Mr.  Chairman,  you  will  understand  that  this  all 
goes  in  under  my  objection. 

Q.  (By  Mr.  Storrow.)  Now,  since  the  dam  was  completed  the 
Essex  Company  have  used  the  water-power  created  by  it,  or  by 
selling  or  leasing  it  to  others  during  the  whole  time. 

A.  Certainly  ; of  course  they  have  not  used  the  whole  of  it.  It 
was  substantially  finished  in  1847,  the  last  stone  was  put  in  in 
1848  ; the  water  was  let  in  in  1847,  but  it  was  not  quite  finished 
then. 

[Examination  of  this  witness  was  postponed  until  counsel  have 
further  examined  Mr.  Mills , when  it  was  widerstood  he  would  be  re- 
called and  interrogated  in  reference  to  matters  which  he  and  Mr.  Mills 
have  knowledge  of.'] 


Cross-Examination. 

Q.  (By  Mr.  Butler.)  Mr.  Storrow,  I don’t  know  but  it  suffi- 
ciently appears,  but  I will  have  it  made  a part  of  the  record. 
You  cannot  raise  the  Merrimack  river  by  your  dam  any  higher  than 
it  is  now? 

A.  No,  sir. 

Q.  That  is  by  a restriction  of  your  charter  and  the  fixing  of  a 
point  above  which  you  cannot  flow  ? 

A.  Yes,  sir. 

Q.  You  have  no  other  storage  basins  except  those  in  New 
Hampshire? 

A.  Our  dam  and  those  in  New  Hampshire. 

Q.  Between  Hunt’s  Falls  and  your  dam  and  those  storage  basins 
in  New  Hampshire? 

A.  No  others,  sir. 

Q.  Can  you  tell  me  how  many  days  in  the  year  the  water  was 
not  running  over  your  dam  since  1865? 

A.  I can’t  tell  from  recollection  ; I know  it  is  a very  rare  thing 
for.  the  water  not  to  be  running  over  the  dam  some  time  in  the 
day. 

Q.  Then,  since  1865  you  have  received  more  water  into  your 
basin  than  it  could  store  ? 

A.  More  than  we  desired  to  store.  We  could  have  stored  more, 
perhaps. 

Q.  How? 

A.  By  refraining  from  drawing  from  New  Hampshire. 

Q.  Then  you  could  have  stored  back  in  New  Hampshire.  Other 
than  that,  was  there  any  way  in  which  }rou  could  have  stored  more 
water  ? 

A.  No,  sir. 

Q.  What  have  you  rated  the  water-power  of  your  river  before 
1872  as  a permanent  power? 

A.  Please  repeat  the  question. 

Q.  Have  you  ever  had  a rating  or  estimate  of  the  water-power 
of  your  dam  as  a permanent  power? 

Mr.  Storrow.  General,  that  is  one  of  the  questions  I propose 
to  ask  him  in  a further  examination. 


C.  S.  Storrow. 


59 


Mr.  Butler.  Then  I will  pass  from  all  that  class  of  topics. 

Q.  (By  Mr.  Butler.)  You  say  before  1865  you  have  sold  a 
hundred  mill-powers.  Those  have  been  sold  either  by  cash  pay- 
ment down,  and  a rent  for  the  residue,  which  would  make  the 
whole  payment  at  the  rate  of  $1,200  a year  by  letting. 

A.  No,  sir;  we  have  sold  in  two  ways;  to  what  we  call  the 
large  companies  like  the  Pacific  mills,  and  others  we  have  usually 
sold  power  for  a certain  amount  of  cash  down,  and  in  addition  a 
certain  amount  of  rental  reserved. 

Q.  That  is  the  way  ? 

A.  That  is  the  way. 

Q.  Reckoning  that  rent-charge,  the  whole  would  be  equal  to 
$20,000,  at  six  per  cent,  a year? 

A,  Yes,  sir, 

Q.  How  do  you  do  it  ? 

A.  We  sold  for  $9,336  cash.  That  was  the  usual  standard  sale 
for  large  companies,  and  in  addition  a rental  in  wThich  ordi- 
nary specie  paying  times  would  be  about  $300  in  gold,  which  we 
reckon  at  so  many  ounces  of  silver. 

Q.  Then  you  take  $9,336  in  cash  for  mill-power,  and  $300  in 
the  then  currency  of  the  time.  With  this  exception  then  you 
reckoned  a dollar  to  an  ounce  of  silver  at  a certain  value  ? 

A.  Yes,  sir. 

Q.  And  in  war  times  it  was  a great  deal  more  valuable  than 
paper,  and  to-day  it  is  twenty  per  cent,  less  than  gold? 

A.  Yes,  sir. 

Q.  Now,  then,  six  per  cent,  on  $9,000  and  $300  rental  would 
leave  the  estimated  value  of  your  mill-power  at  what? 

A.  Something  like  $15,000. 

Q.  That  was  sales  to  the  Atlantic  and  Pacific,  and  to  the  Bay 
State? 

A.  Yes,  sir. 

Q.  And  since  those  sales? 

A.  We  have  sold  none  on  those  terms,  except  to  those  large 
companies  and  the  Pemberton,  so  that  the  Pacific,  the  Atlantic, 
and  the  Bay  State  and  the  Pemberton, — what  we  call  the  large 
companies  — 

Q.  And  that  class  of  sales  ceased  in  what  year? 

A.  The  last  we  sold  on  those  terms  were  sold  in  the  year  1869, 
when  we  made  an  additional  sale  of  those  thirteen  mill-powers. 

Q.  I will  come  to  that  directly,  but  when  you  sold  out  your  first 
mill-power  to  those  three  companies,  that  was  the  price? 

A.  Yes,  sir  ; that  was  the  standard. 

Q.  What  was  the  time  when  those  terms  ceased,  — the  $15,000? 

A.  As  I say,  the  last  we  sold  on  those  terms  we  sold  on  the 
first  of  October,  1869,  but  prior  to  that  time  — 

Q.  Excuse  me,  you  don’t  answer  what  I want  you  to. 

A.  As  they  were  sold  almost  every  year  during  that  period  of 
twenty-five  years,  I could  hardly  answer  that  question. 

Q.  Then  you  and  I are  at  cross  purposes,  Mr.  Storrow,  evi- 
dently. You  say  you  sold  on  the  $15,000  basis  to  the  Pemberton 


60 


Essex  Company. 


mills,  to  the  Atlantic,  to  the  Pacific,  and  to  the  Bay  State  ; now 
the  Washington? 

A.  Yes,  and  the  Everett. 

Q.  Originally  when  they  were  founded  ? 

A.  When  they  were  founded. 

Q.  Now,  what  I want  to  know  is,  leaving  any  sales  to  those 
mills  and  the  Everett  mills  out,  when  were  those  original  sales 
made? 

A.  The  first  sales  were  made  in  1846. 

Q.  When  was  the  last? 

A.  The  last  of  those  sales  was  made  October,  1869.  The  last 
on  that  basis  — 

Q.  Pardon  me,  you  don’t  answer  me  my  question.  I must  go 
back  again.  Let  me  take  one  at  a time.  When  was  the  sale  made 
to  the  Pacific,  the  original  sale  ? 

A.  To  the  best  of  my  recollection,  it  was  made  in  1853. 

Q.  When  was  the  sale  made  to  the  Atlantic? 

A.  The  first  sale  to  the  Atlantic  was  made  in  1846. 

Q.  When  to  the  Bay  State  or  Washington? 

A.  At  the  same  time. 

Q.  When  to  the  Pemberton  ? 

A.  From  my  recollection  it  would  be  1853,  but  I am  not  certain 
within  a year  or  two. 

Q.  Now  when  to  the  Everett? 

A.  The  Everett  did  not  buy  originally  of  us,  we  sold  to  the  Law- 
rence Machine  Shop,  which  was  sold  out  to  the  Everett. 

Q.  Then  we  leave  the  Everett  out.  Now  I have  got  the  origi- 
nal sales  made  by  you ; the  Pemberton  Bay  State,  Atlantic  and 
the  Pacific,  and  those  were  all  sold  originally  on  the  $15,000 
basis,  reckoned  as  you  told  us? 

A.  The  original  ones  were  — 

Mr.  Butler  : Stop  right  there ; that  is  all  I want  to  know ; 

don’t  be  anxious. 

[Adjourned  until  1.30  P.  M.~\ 

AFTERNOON  SESSION. 

Tuesday,  Sept.  12th,  1.30  P.  M. 

Cross-examination  of  Charles  S.  Storrow. — Continued. 

Q.  (By  Gen.  Butler.)  After  you  sold  the  mill-powers  to 
other  parties,  did  you  change  the  rate  of  selling  or  letting  your 
powers  ? 

A.  After  the  first  sale  which  we  made  in  1846,  we  varied  from 
time  to  time  in  selling  to  others,  so  that  that  was  fixed  as  a stan- 
dard and  was  the  standard  of  the  last  sales  between  the  sales  in 
1846  and  the  sales  in  1869. 

Q.  What  were  the  limits  of  variation  ? 

A.  Well,  there  was  one  instance  when  we  sold  two  mill-powers 
without  an}'  cash  payment. 

Q.  But  required  how  much  rent? 


C.  S.  Storrow. 


61 


A.  The  same  rent. 

Q.  (By  Commissioner  Stevens.)  What  do  you  mean  by 
“ the  same  rent” ? 

A.  The  $300  that  was  then  payable. 

Q.  (By  Gen.  Butler.)  What  two  mill-powers  were  they? 

A.  I think  those  were  two  that  were  sold  to  the  Duck  mill  and 
the  original  Pemberton  mills  at  the  time  of  the  great  depreciation, 
— our  desire  being  to  induce  somebody  to  come  there  and  use  the 
water  ; but  there  were  some  variations  in  each  company  which  had 
bought  at  six  or  eight  different  times  — one  was  the  Washington 
mills  ; their  original  purchase  was  the  standard  price.  There  has 
never  has  been  any  change  in  rent. 

Q.  What  is  the  highest  price  for  which  you  have  sold  mill- 
powers  ? 

Q.  The  highest  price  has  been  our  present  price  ; that  is  $1,200 
a year  in  money,  and  that  has  been  the  price  for  all  the  powers 
sold  on  the  south  canal  and  all  sold  on  the  north  canal  in  currency 
rates. 

Q.  How  many  powers  did  you  sell  in  1869  ? 

A.  In  1869  we  sold  thirteen  powers  which  were  mentioned,  and 
we  sold  to  old  companies  who  took  ten  of  them  at  the  highest 
price  those  companies  had  ever  paid,  and  the  others  at  $1,200  a 
year,  to  newer  companies. 

Q.  How  small  an  amount  of  a mill-power  have  you  sold  to  any 
one  company? 

A.  There  is  a single  case  of  one-sixth  of  a mill-power  ; several 
cases  of  one-third. 

Q.  Do  you  mean  that  is  the  smallest  amount  any  particular 
person  has  bought  altogether,  or  a particular  sale? 

A.  There  is  one  party  who  has  bought  a sixth,  and  owns  a 
sixth  ; others  up  to  thirty-six  mill-powers. 

Q.  Have  all  those  been  sold  within  the  limits  which  you  have 
named  — either  $1,200,  or  the  other  limit? 

A.  I named  just  now  some  which  had  been  sold  for  the  rent  of 
the  mill-power.  We  have  made  sales  almost  yearly  since  1846. 

Q.  How  lately  have  you  sold  a mill-power? 

A.  The  last  I sold  was,  I think,  in  1868  ; no,  1872.  We  have 
sold  nothing  since  then. 

A.  W as  that  a single  mill-power  ? How  much  did  you  get  for 
that? 

A.  It  was  the  Greenbank  mill-power  ; $1,200  a year. 

Q.  Then  I observe  that  your  mill-power  was  sold  to  use  sixteen 
hours  a day.  Does  that  limit  of  time  continue? 

A.  It  does,  sir. 

Q.  What  proportion  of  the  operatives  in  your  mill  should  you 
say  were  women,  and  persons  under  the  age  of  twenty-one? 

A.  Oh,  I could  not  say. 

Q.  Well,  guess  ; one-half? 

A.  I should  think  more  than  one-half. 

Q.  What  time  do  you  actually  run  in  Lawrence? 

A.  Sixty  hours  a week  under  the  law. 

Q.  Under  the  law,  requiring  that  no  female,  or  any  person  un- 


62 


Essex  Company. 


der  the  age  of  twenty-one  shall  work  only  so  many  hours  per 
week  ? 

A.  Yes,  but  there  is  this  exception  ; there  are  some  little  paper 
mills  that  run  all  night. 

Q.  So  that  really  the  privilege  now  to  the  mill-power  is  only 
eight  or  ten  hours  a day  ? 

A.  Yes,  practically. 

Q.  That  is,  running  about  11£  hours  a day,  and  then  only 
enough  on  Saturday  to  make  up  the  sixty  hours.  So,  practically, 
it  is  ten  hours  a day.  I suppose,  Mr.  Storrow,  your  opinion  is 
that  that  restriction  has  diminished  the  value  of  the  water-power 
of  Lawrence? 

A.  Not  for  the  purposes  of  sale. 

Q.  How  is  it  for  the  purposes  of  using? 

A.  I don’t  know  about  that.  Some  persons  have  thought  that 
they  could  get  as  much  work  in  ten  hours  a day,  as  they  could  in 
twelve  ; but  I have  no  means  of  knowing. 

Q.  Now  as  to  the  surplus  power  which  you  have  given  us ; I 
observe  by  looking  at  the  table  that  you  make  a different  rate  of 
charges.  What  is  that  rate  of  charge  ? 

A.  We  allow  each  company  to  use  up  to  a certain  amount  at 
the  rate  of  $4  a day,  which  is,  practically,  $1,200  a year.  Beyond 
that,  we  have  two  rates  higher. 

Q.  What  is  that  certain  amount  you  allow  each  company  to  add 
to  their  mill-power? 

A.  20  per  cent. 

Q.  At  the  same  rate? 

A.  At  the  same  rate. 

Q.  And  use  it  more  or  less  days,  as  they  please? 

A.  Yes,  sir. 

Q.  If  they  use  more  than  20  per  cent,  how  much  will  they 
pay? 

A.  $12. 

Q.  Now,  of  this  amount  that  you  gave  us  on  this  paper,  how 
much  is  there  extra  over  that  20  per  cent.  ? 

A.  I don’t  know  from  recollection. 

Q.  I wish  you  would  get  that  and  bring  it  in.  Up  to  1870  you 
made  no  charge  whatever? 

A.  No,  we  did  not.  We  had  previously  made  arrangements 
and  spent  six  or  eight  months  in  building  structures  to  ascertain  a 
mode  of  measurement. 

Q.  You  did  not  get  into  measuring  to  your  own  satisfaction 
until  1870? 

A.  No,  we  did  not. 

Q.  So  that  practically  up  to  1870  there  was  no  known  measure- 
ment for  your  power? 

Mr.  Storrow.  The  witness  did  not  say  that.  It  is  measurements 
of  the  water  used  by  each  particular  mill  that  he  is  speaking  of. 

Witness.  Knowing  the  whole  quantity  of  the  water  flowing, 
and  knowing  that  the  whole  quantity  used  was  a great  deal  more 
than  we  sold,  there  was  frequent  complaint  on  my  part  to  the  com- 
panies that  they  were  going  far  beyond  their  limits,  and  from  time  to 


C.  S.  Storrow. 


63 


time  I would  go  to  one  company  or  another  — the  Pacific  or  Atlan- 
tic— and  say,  “I  know  you  are  using  three  or  four  more  mill- 
powers  than  you  have  a right  to  use  ; you  must  either  cease  using 
so  much  or  buy  more,  and  they  bought  more  ; ” but  they  did  not 
cease  using  too  much.  Soon  the  question  of  how  much  more  they 
were  using  than  they  had  a right  to  use  rose.  I had  the  water 
of  each  carefully  measured.  That  was  the  occasion  of  these  suc- 
cessive subsequent  purchases.  The  Pacific  had  8 originally,  and 
now  owns  36.  The  Pemberton  began  with  2,  and  owns  12.  The 
Washington  began  with  8,  and  now  owns  16, 1 think.  The  Everett 
began  with  2,  and  now  owns  10. 

Q.  In  examining  this  case  here  [referring  to  document  in  hand], 
I find  that  in  some  years  quite  the  largest  amounts  are  used  in 
the  dry  season. 

Mr.  Storrow.  The  largest  number  of  powers.  That  does  not 
state  the  amount  of  water.  A power  is  not  a constant  quantity  of 
water.  It  depends  upon  the  head  of  the  fall. 

Q.  Well,  I suppose  the  head  in  your  power  is  determined  by 
the  height  of  the  water  in  the  canal? 

A.  Comparatively. 

Q.  And  the  river  below  ? 

A.  And  the  river  below. 

Q.  What  is  the  greatest  difference  that  you  have  known  in  the 
height  of  the  water  in  the  canal  when  the  mills  had  all  been 
running? 

A.  There  have  been  exceptional  days  when  it  has  been,  per- 
haps, two  feet  below  the  height ; but  the  general  run  is  a foot. 
Sometimes  for  months  together  there  is  no  change. 

Q.  So  that,  practically,  the  head  is  the  same  ? 

A.  The  surface  of  the  canal  varies  but  little. 

Q.  And  I suppose  the  head  and  fall  is  very  much  more  affected 
by  back  water  than  in  any  other  way  ? 

A.  Certainly. 

Q.  That  is,  you  are  affected  more  by  too  much  water  than  by 
too  little. 

A.  Yes,  that  is  so. 

Q.  In  your  judgment,  how  much  of  the  time  — take  one  time, 
take  the  average  of  the  year  — how  much  of  the  year  is  there 
more  water  coming  over  your  dam  than  you  can  draw  through 
your  head-gates. 

A.  By  far  the  greater  part  of  the  year  there  is  more  water 
coming  than  we  actually  do  draw  through  the  canal.  If  more 
machinery  was  run,  we  should  use  more  ; but,  as  it  is,  we  check 
the  capacity  of  the  canal,  and  retain  the  water  at  about  a certain 
height. 

Q.  But  how  much  of  the  time?  You  have  not  quite  answered 
my  question.  How  much  of  the  time  of  the  year  is  there  an  actual 
surplus  going  over  more  than  your  canal  can  carry? 

A.  As  to  how  much  there  is  more  than  the  canal  could  carry,  if 
we  chose  to  drive  it  to  its  utmost  capacity,  I don’t  know,  because 
the  canal  can  carry  sometimes  very  large  quantities. 


64 


Essex  Company. 


Q.  I do  not  mean  what  can  be  carried  and  run  over  the  waste- 
way, but  I mean  that  can  be  used  by  the  machinery. 

A See  if  I understand  your  question. 

Q.  My  question  is  this  : How  many  days  of  the  year,  or  what 
part  of  the  year,  will  you  tell  me,  more  water  runs  in  the  Merri- 
mack river  than  would  be  well  used  in  your  canal  if  you  had  ma- 
chinery by  which  you  could  use  it?  I want  to  get  at  the  time 
when  you  could  use  all  this  surplus  water-power. 

A.  I cannot  answer  that. 

Q.  Haifa  year? 

A.  I should  think  for  half  a year. 

Q.  Two-thirds? 

A.  I cannot  positively  tell. 

Q.  Have  you  any  such  measurements  of  the  amount  of  water 
run  that  you  can  tell  ? 

A.  When  the  water  is  a little  low,  we  measure  and  watch  it  a 
great  deal  closer.  At  other  times  we  do  not  trouble  ourselves 
about  it. 

Q.  But  you  do  not  watch  it  more  than  six  months  of  the  year, 
do  you  ? 

A.  Oh,  we  watch  it  every  day ; but  we  do  not  pay  particular 
attention  to  measuring  when  the  water  is  very  high. 

Q.  How  many  horse-power  is  a mill-power  under  your  twenty- 
five  feet  head  ? 

A.  A mill-power  we  commonly  estimate  at  a very  low  rate  — at 
sixty  horse-power.  Theoretically,  I think  it  is  eighty-four  ; but,  if 
a person  wished  to  buy  of  me  a mill-site,  to  run  a mill  which  he 
said  was  to  be  sixty  horse-power,  I should  sell  him  one  which  was 
theoretically  eighty-four. 

Q.  That  is  to  say,  a mill-power  over  twenty-five  feet,  and  vary- 
ing above  that ; and  six  inches  of  water  would  be  about  one  horse- 
power? 

A.  That  depends  upon  the  quantity  of  water. 

Q.  30  cubic  feet  a second  over  a 25  ft.  fall  is  60  horse-power? 

A.  Well,  about  65  horse-power.  That  is  the  standard  from 
which  we  vary  up  and  down. 

Q.  How  much  horse-power  per  foot? 

A.  If  30  cubic  feet  give  60  horse-power,  I suppose  it  would  be 
2 horse-power  per  foot.  It  is  nearer  65,  as,  in  fact,  they  use  it, 
depending,  of  course,  upon  the  goodness  of  the  wheel. 

Q.  Yes,  and  it  depends  upon  how  high  the}'  have  the  gate,  too. 

A.  Well,  the  better  wheel  a man  has  in,  the  more  use  he  gets 
from  the  water. 

Q.  I observe  that  Mr.  Storrow,  in  opening  the  case  said  that 
the  Essex  Company,  by  their  dam,  had  created  a water-power.  Do 
you  agree  with  that? 

A.  I certainly  do.  By  their  dam  they  made  a fall  which  fur- 
nishes a water-power. 

Q.  Didn’t  they  create  more  than  that?  Didn’t  they  create  a 
storage  of  water  which  they  could  use,  running  back  9 miles,  26 
feet,  in  the  summer? 


C.  S.  Storrow. 


65 


A.  They  created  a fall  by  raising  the  dam,  and  the  dam  also 
creates  a reservoir. 

Q.  Do  you  believe  that  if  the  Merrimack  river  had  no  dam  upon 
it  and  no  reservoir,  that  anywhere  near  as  much  water  would  pass 
by  Lawrence  — leaving  out  the  lake  there  — in  the  dry  season  as 
does  now? 

A.  If  there  was  no  machinery  anywhere  on  the  Merrimack  river 
above  Lawrence,  the  water  would  be  lower  in  dry  time. 

Q.  So  that  the  water  would  fall  in  the  spring  in  large  quantities, 
and  run  off  in  the  early  freshets,  and  in  the  summer  those  streams 
which  were  not  dammed  would  be  substantially  dry? 

A.  Of  course,  there  would  be  more  excessive  quantities  at  one 
time,  and  a deficiency  at  others,  if  the  usual  amount  was  not 
utilized. 

Q.  That  is  to  say,  the  natural  running  of  the  river  would  be 
very  much  less  than  the  artificial  running  as  it  runs  now? 

A.  I think,  say  twenty  years  ago,  there  was  more  fluctuation 
than  there  is  now. 

Q.  Have  you  any  claim  or  right  that  you  know  of  to  have  any- 
body’s dam  above  you  kept  up  for  a single  hour  if  they  choose  to 
take  it  down  and  let  the  water  run  ? 

A.  I don’t  know  as  we  have  any  right,  unless  the  law  gives  it 

to  us. 

Q.  Do  you  know  of  any  other  rights  you  have  to  have  the  water 
come  down  to  you  from  anybody  else  who  owns  land  on  the  border 
of  the  river? 

A.  Unless  some  legal  points  may  be  involved,  I do  not.  How 
far  one  man  may  interfere  with  another  I really  am  not  informed. 

Q.  My  point  is  not  how  much  they  interfere.  My  only  question 
is,  whether  they  cannot  stop  interfering  if  they  want  to  ? 

A.  If  the  dam  above  was  taken  down  we  could  not  help 
ourselves. 

Q.  And  so  of  all  the  others  clear  up  to  the  uttermost  fall 
wherever  there  is  an}r  water.  In  fact,  there  are  a great  many 
reservoirs  upon  the  Merrimack  and  its  branches? 

A.  Yes. 

Q.  You  know  some  of  them.  The  Nashua  is  the  great  one? 

A.  That  at  Lowell  is  the  great  one  — and  Nashua. 

Q.  But  there  are  a great  many  reservoirs  on  the  feeders  of  the 
Nashua  — not  only  mill-dams,  but  storage-basins? 

A.  Why,  yes  ; men  are  endeavoring  all  the  time  to  improve  the 
water-power. 

Q.  And  there  have  been  those  improvements  ever  since  you 
have  known  the  water-power  of  the  Merrimack  ? 

A.  Yes,  sir ; and  they  have  been  increasing,  so  far  as  my 
observation  extends,  from  year  to  year. 

Q.  And  haven’t  you  seen  a sensible  effect  down  at  Lawrence 
from  that  increase  ? 

A.  I think  the  general  tendency  of  things,  independent  of  any 
operations  of  ours,  has  been  to  improve  the  water-power  through 
the  simultaneous  and  co-operative  movements  of  all  the  mill- 
owners. 


9 


66 


Essex  Company. 


Q.  Would  you  say  that  within  twenty  years  in  the  dry  season 
the  water  had  increased  — with  the  same  rainfall  — as  much,  or 
more  than  ten  per  cent.  ? 

A.  I don’t  know  as  I could  give  an}^  answer.  Whenever  we 
have  examined  our  river,  we  have  been  surprised  to  find  it  so  pro- 
ductive. 

Q.  Have  j^ou  ever  measured  the  water-shed  of  your  river? 

A.  Only  from  the  maps  which  we  have  in  our  office  — not  per- 
sonally. It  has  been  measured  several  times  for  us. 

Q.  Now,  about  these  sales  of  lands  : had  it  not  been  the  habit 
of  your  company,  in  appraising  the  land  which  might  be  taken, 
and  when  buying  land  for  building  purposes,  to  fix  the  price  ? 

A.  The  price  of  land  was  always  fixed  by  me,  personally,  and, 
moreover,  the  prices  have  varied  considerably  at  certain  periods, 
and  at  other  times  they  have  not. 

Q.  Now,  what  I desire  to  know  is,  whether  you  can  give  me  a 
table  of  the  prices  at  which  men  coming  into  your  office  could  look 
when  they  took  lands  from  time  to  time. 

A.  No  ; the  prices  were  so  different.  They  ranged  all  the  way 
from  one  cent  to  three  dollars. 

Q.  I agree  to  that ; and  that  is  exactly  what  I want  to  get  at ; I 
knew  that. 

A.  Land  since  we  have  been  there  has  sold  from  one  cent  up 
to  three  dollars  and  over.  But  not  the  same  land  in  the  same 
place. 

Q.  Let  us  see.  Did  the  Essex  Company  pay  anything  like  one 
cent  a foot  for  any  of  the  land  ? 

A.  Their  original  purchase  was  $300,000,  which  covered  1,800 
to  2,000  acres,  at  a pretty  high  price,  some  of  it.  After  we 
started  we  bought  little  pieces  about  the  town,  and  paid  a high  price 
to  secure  that  portion.  We  bought  the  land  before  we  created  the 
water-power,  with  a view  of  creating  the  water-power. 

Q.  Oh,  yes,  I suppose  3Tou  did.  Take  the  land  in  the  same 
locality  and  give  me  the  price  it  sold  for  from  year  to  }*ear  since 
1849  — since  the  first  sale.  Take  it  at  any  sum. 

A.  I should  say  at  that  first  sale  we  sold  land  on  Essex  street 
for  about  thirty  cents. 

Q.  You  sold  land  here  and  there  for  so  much,  and  then  it  went 
up,  and  then  it  went  down? 

A.  No,  sir;  it  never  went  down.  We  have  never  lowered  our 
price. 

Q.  Well,  if  it  went  down  it  must  have  gone  up. 

A.  As  we  kept  on  spiling  we  got  more  for  what  was  left ; and 
if  the  less  we  have  the  more  we  have  got,  I don’t  know  where  we 
shall  end.  I suppose  I have  sold  5,000  lots. 

Q.  Now,  sir,  didn’t  the  prices  of  3rour  land,  from  year  to  }Tear, 
depend  largely  upon  the  prosperity  of  the  general  business  of  the 
community?  Didn’t  the  sale  of  your  land  depend  largely,  from 
year  to  year,  upon  the  general  prosperity  of  the  general  com- 
munity ? 

A.  It  did  ; upon  the  manufacturing  community. 

Q,  Now,  do  you  not  believe,  Mr.  Storrow,  that  the  sale  of  3Tour 
lands,  and  the  profits  derived  from  them,  were  caused,  by  the 


C.  S.  Storrow. 


67 


belief  of  the  community  that  a large  city  would  grow  up  around 
there. 

A.  No  doubt. 

Q.  And  that  you  had  a large  water-power. 

A.  No  doubt. 

Q.  Which  would  — 

A.  No  doubt. 

Q.  Do  you  believe  there  was  any  other  cause  than  that? 

A.  It  was  a great  manufacturing  centre. 

Q.  You  haven’t  half  exhausted  your  water-power,  have  you? 

A.  Oh,  yes ; but  not  constantly.  We  look  very  much  to 
Lowell.  We  know  all  their  water  comes  to  us,  and  that  they  use 
about  the  same  as  we  do. 

Q.  How  many  mill-powers  are  they  employing  at  Lowell? 

A . 157,  as  a general  thing,  running  up  to  200  mill-powers. 
We  have  sold  at  Lawrence  122  in  all. 

Q.  Now,  do  you  believe  it  would  have  altered  the  fact  of  the 
sale  of  them,  had  you  known  you  had  20,000,000  of  gallons 
less  per  day  than  you  have  got  from  the  sale  of  them  ? 

A.  I don’t  think  it  would  have. 

Q.  How  many  horse-power  by  steam  do  you  employ? 

A.  I am  unable  to  answer.  I know  that  the  large  companies 
have  large  steam  engines,  but  they  are  not  in  constant  use ; they 
use  them  occasionally.  I rather  think  one  company  has  a large 
engine  of  400  or  500  horse-power,  which  they  do  not  use  more 
than  once  or  twice  a year.  That  is  to  say,  their  steam-power  is 
not  much  used. 

Q.  Isn’t  there  a large  quantity  used  in  Lowell  — steam-power? 

A.  My  impression  is,  that  there  is  ; but  I don’t  know  but  there 
is  a great  deal  more  machinery  run  in  Lowell. 

Q.  Practically,  then,  you  supply  power  to  whoever  wants  it  for 
about  $20  a horse-power  a year? 

A.  Yes  ; $1,200  a year  ; and  large  companies  on  the  north  canal 
and  the  small  companies  there  likewise  have  been  for  years 
urging  us  to  sell  them  more  water-power,  but  we  have  refused. 

Q.  That  is  to  say,  the  north  side, — you  refuse  to  have  that  side 
of  the  city  use  any  more  so  far  as  you  can  prevent  it  bjr  holding  on 
to  your  water-power  in  order  to  have  the  other  side  use  it.  Then, 
after  all,  it  was  this  growth  that  you  have  been  telling  us  about 
which  enabled  you  to  make  these  large  sales  of  land  ? 

A.  Naturally,  having  use  of  the  water-power,  we  intended 
to  utilize  our  south  side  as  well  as  the  north. 

Q.  But  where  there  is  a large  population,  you  won’t  let  them  have 
any  more  water-power,  but  make  them  move  on  the  other  side 
where  there  is  unoccupied  land.  That  puts  me  in  mind  to  ask  you 
how  much  real  estate  your  company  owns  — in  value  at  your  price 
— exclusive  of  the  land  ? 

A.  It  is  hard  to  tell ; but  we  are  assessed  at  about  $750,000. 

Q.  The  assessment  in  some  towns  is  very  large,  and  in  others 
very  small.  I am  asking  you  now  at  the  price  you  put  here  in  your 
estimate,  how  much,  in  your  judgment,  real  estate  is  held  — ieav- 


68 


Essex  Company. 


ing  out  your  canals,  dams,  etc.,  — to-day  by  the  Essex  Com- 
pany? 

A.  I should  say  on  the  north  side  the  value  of  our  real  estate 
to-day  is  about  $200,000.  On  the  south  side  (I  don’t  want  you  to 
tell  the  assessors),  I shouldn’t  be  surprised  if  we  got  a million. 

Q.  Then  you  hold  $1,200,000  of  real  estate? 

A.  It  may  produce  that. 

Q.  What  is  the  capital  stock  ? 

A.  $500,000. 

Q.  What  is  its  market  value  ? 

Mr.  Merwin.  W ait  a moment.  I don’t  see  how  that  is  material. 
[To  the  commissioners.]  You  may  admit  it  subject  to  our  ob- 
jection. 

Gen.  Butler.  I rather  think  I have  a right  to  put  in  other 
people’s  idea  of  its  market  value. 

Mr.  Merwin.  But  not  by  hearsay. 

Commissioner  Francis.  Did  he  say  what  its  market  value 
was? 

Witness.  $130  a share  — perhaps  something  more.  The  capi- 
tal has  been  $1,500,000;  but  it  has  been  successively  reduced  by 
refunding  money  to  the  stockholders,  because  it  was  no  further 
needed  in  our  enterprise,  — it  is  one  which  has  natural  termina- 
tion, except  as  regards  the  water-power. 

Q.  What  was  the  State  tax? 

A.  On  a valuation  of  $1,300,000. 

Q.  Have  you  seen  or  known  of  any  diminution  of  water  at  Law- 
rence which  you  can  attribute  to  the  taking  of  the  waters  of  the 
Sudbury  river? 

A.  Not  according  to  my  observation.  We  have  had  a surplus 
of  water  ever  since  the  last  taking. 

Q.  Doesn’t  Lowell,  as  a rule,  begin  drawing  before  you  from  the 
reservoir  ? 

A.  As  a general  thing  they  do,  for  they  have  more  power  in  use 
than  we  have ; but  there  may  be  times  when  we  use  more  than 
they  do. 

Q.  And,  of  course,  their  water  comes  to  you? 

A.  Of  course. 

Re-direct. 

Q.  (By  Mr.  Storrow.)  How  many  years  after  the  Essex  Com- 
pany was  chartered  before  they  made  a dividend  ? 

A.  The  Essex  Company  were  twelve  years  without  any  dividend. 

Q.  When  did  they  begin  to  payT  their  dividends  ? 

A.  I don’t  remember  now.  I think  we  were  a dozen  }Tears  with- 
out a dividend.  Then  we  began  to  pay7  small  ones.  My  impres- 
sion is  that  up  to  this  time  we  have  not  received  our  money  at  six 
per  cent. 

Q.  Up  to  1864  or  ’5  they  varied  considerably  ? 

A.  I think  the  dividends  began  in  1862.  We  made  one  divi- 
dend on  expectations,  and  lost  twelve  on  facts. 

[Adjourned  to  Thursday , September  14 £/i,  at  9.30,  A.  M.~\ 


Evidence  for  the  City. 


69 


Thursday,  September  14,  1876. 

Mr.  Storrow.  At  the  request  of  the  city,  we  will  admit 
as  true,  in  1856,  the  facts  which  are  stated  in  the  agreed 
statement  of  facts  in  the  case  of  Heard  vs.  Talbot,  7th 
Gray,  113,  except  the  first  paragraph,  and  the  paragraphs 
on  the  16th  page,  which  are  peculiar  to  that  case.  We  do 
not  admit  that  those  facts  are  material  or  competent  in  this 
case,  nor  that  they  are  all  the  facts,  but  we  admit  that  those 
facts  are  true. 

Mr.  Butler.  To  save  time  while  we  are  wailing  for  the 
witness,  I will  read  from  the  case  of  Heard  vs.  Talbot,  as  fol- 
lows : — 

“ The  Messrs.  Talbot  claim  a right  to  now  maintain  their  dam 
without  payment  of  damages  (even  if  the  dam  shall  cause  said 
lands  to  be  flowed),  by  reason  of  the  following  acts  and  proceed- 
ings done  and  had  by  themselves  and  those  under  whom  they  claim. 

“ In  1708  the  town  of  Billerica  granted  to  one  Richardson  a cer- 
tain tract  of  land,  and  a right  to  dam  Concord  river  at  the  falls  in 
that  town,  for  the  purposes  of  a grist-mill,  so  long  as  he  or  his 
heirs  should  furnish  a mill  there  to  grind  the  grain  of  the  inhabi- 
tants of  said  town.  In  pursuance  of  said  grant,  a grist-mill, 
within  a year  or  two  of  the  grant,  was  erected  there,  with  a dam  of 
a certain  height,  which  mill  and  dam  and  other  mills  were  kept  up 
and  in  operation  till  and  since  the  incorporation  of  the  proprietors 
of  the  Middlesex  Canal,  as  hereinafter  set  forth.  No  forfeiture  is 
claimed  by  the  town  of  Billerica  or  by  the  complainant  for  any 
want  of  a ‘grist-mill  for  the  inhabitants. 

“ Certain  persons  were  incorporated  as  ‘ the  Proprietors  of  the 
Middlesex  Canal,’  by  St.  1793,  c.  21,  for  the  purpose  of  cutting  a 
canal  to  unite  the  water  of  the  Merrimack  river  with  the  water  of 
Medford  river,  with  certain  rights  and  privileges  given  them  by 
their  charter. 

“The  proprietors  in  1798  purchased  said  mill  privileges  on  the 
Concord  river,  and  erected  a dam,  as  Mr.  Heard  alleges,  to  a 
greater  height  than  the  former  dam,  for  the  purpose  of  raising  a 
head  of  water  to  supply  their  canal,  using  the  surplus  to  operate 
their  mills,  the  grist-mill  having  the  first  right. 

“ In  1804  the}'  completed  their  canal  from  Merrimack  river  to 
Charles  river,  and  opened  it  for  public  navigation,  taking  toll 
therefor,  and  using  the  head  of  water  so  raised  in  Concord  river 
to  feed  their  canal,  and  the  surplus  also  to  run  their  said  mills. 

“ In  1798  the  proprietors  procured  an  additional  act  to  be  passed 
(St.  1798,  c.  16),  by  which  they  were  empowered  to  purchase  and 
hold  any  mill-seats  on  the  waters  connected  with  their  canal,  and  to 
erect  mills  thereon. 

“ Said  proprietors  rebuilt  the  grist-mill  and  mills  for  manufac- 
turing lumber,  and  leased  and  sold  water-power  at  said  Billerica, 


70 


Essex  Company. 


from  time  to  time,  so  long  as  they  were  in  active  operation  as  a 
canal  company,  to  divers  persons,  to  be  drawn  from  the  head  of 
water  raised  by  said  dam,  and  always  to  be  used  in  subordination 
to  the  use  of  the  water  for  feeding  the  canal,  except  the  grist-mill, 
which  always  had  the  first  right  to  the  use  of  the  water. 

u In  1826,  finding  their  dam  insufficient  to  raise  the  water  for 
their  purposes,  said  proprietors  built  a new  and  more  permanent 
dam,  in  connection  with  the  old  one,  which  is  the  structure  here 
complained  of. 

“ The  proprietors  carried  on  their  canal,  using  in  the  dry  seasons 
of  the  year  all  of  the  water  of  the  river,  for  their  various  purposes 
and  for  the  mills  of  those  claiming  under  them,  the  canal  using  the 
largest  part  thereof  and  retaining  the  first  right  thereto,  till  the 
year  1851,  when  their  canal  was  wholly  disused  by  them  and  filled 
up  in  parts  of  it,  and  has  become  now  wholly  unfit  for  use,  and  is 
no  longer  filled  with  water,  and  is  wholly  unused  by  said  proprie- 
tors. 

“At  the  time  of  the  abandonment  of  the  use  of  their  canal,  and 
as  a part  of  the  winding  up  of  their  affairs,  the  proprietors  sold  all 
their  land  and  the  residue  of  the  water-power  by  them  unsold, 
raised  by  their  dam  aforesaid,  to  the  Messrs.  Talbot,  by  deed  of 
quitclaim,  4 subject  expressly  to  the  reservation  of  all  easements 
and  services  necessary  for  or  incident  to  the  preservation  and  use 
of  said  canal  for  the  purpose  of  navigation,  and  of  all  the  rights  of 
the  public  therein,  until  the  same  shall  be  lawfully  discontinued 
and  the  Messrs.  Talbot  have  since  that  sale  maintained  and  kept 
up  the  water  by  said  dam  for  manufacturing  purposes,  and  claim 
to  use  the  same  in  such  manner  and  to  such  extent  as  may  suit 
their  convenience  for  such  manufacturing  purposes,  subject  to  said 
reserved  right  of  said  canal. 

44  It  is  also  agreed  (if  it  be  competent  evidence)  that  after  the 
abandonment  of  their  canal  said  proprietors  applied  to  the  legisla- 
ture for  leave  to  wind  up  their  affairs,  and  to  sell  their  land  and  water- 
power, and  surrender  their  charter,  which  application  was  denied  ; 
and  that  afterwards  they  applied  by  petition  to  the  Supreme  Court 
for  leave  to  wind  up  their  affairs  and  surrender  their  charter,  which 
petition  is  still  pending ; which  applications  were  made  after  the 
deed  to  the  respondents. 

44  It  is  also  agreed  (if  it  be  competent  evidence)  that  the  canal 
corporation,  or  those  claiming  under  them,  have  never  in  fact  paid 
any  damages  for  flowing  Mr.  Heard’s  land,  or  obtained  any  grant 
or  license  therefor,  except  such  as  may  be  presumed  by  law  from 
the  lapse  of  time  from  the  facts  above  stated.” 


Testimony  of  Hiram  F.  Mills,  resumed,  having  been  suspended, 
owing  to  the  illness  of  the  witness. 

Q.  (By  Mr.  Storrow.)  Mr.  Mills,  will  }tou  state  the  area  of 
the  Essex  Company’s  water-shed  above  the  dam,  as  it  existed  in 
1872,  before  the  taking  of  the  Sudbury  river  by  the  city,  includ- 
ing the  upper  Sudbury-river  area? 


H.  F.  Mills. 


71 


Mr.  Abbott.  Does  your  question  include  all  the  water-shed,  of 
every  description  ? 

A.  Yes,  sir.  From  the  best  data  I can  find  with  regard  to  this 
subject,  I find  that  there  are  4,136  square  miles  of  drainage  area 
above  the  Essex  Company’s  dam. 

Q.  Will  you  state  the  amount  of  drainage  area  of  the  upper 
Sudbury,  above  the  point  where  the  city  dam  now  is  ? 

A.  72.3  square  miles,  as  I make  it. 

Q.  Have  you  gone  over  that  upper  Sudbury  area  yourself  with 
a view  to  examine  its  character  as  a water-shed,  and  as  compared 
with  the  rest  of  the  Essex  Company’s  water-shed  of  4,136  miles  ; 
and  if  so,  will  you  state  what  you  ascertained,  and  your  conclu- 
sions in  that  respect? 

A.  I have  been  through  this  territory  of  72.3  square  miles  for 
the  purpose  of  getting  at  its  general  character  as  a water-shed.  I 
have  not  been  through  the  whole  of  the  4,136  square  miles  of  the 
Essex  Company’s  water-shed  for  this  purpose  ; I have  been  through 
it  a great  many  times,  not  with  special  reference  to  studying  its 
character,  but  I did  go  through  the  72.3  square  miles  to  see 
whether  there  was  anything  exceptional  in  it,  or  anything  by  which 
I should  regard  it  as  less  valuable  or  more  valuable  than  the  general 
character  of  the  water-sheds  in  this  area,  and  my  conclusion  is  that 
it  is  as  good  as  the  general  character  of  our  water-sheds. 

Q.  State  some  of  the  facts  which  you  observed  which  led  you 
to  come  to  that  conclusion. 

Mr.  Butler.  We  shall  not  put  the  character  of  the  shed  into 
contest,  but  the  amount  of  water  we  shall.  What  I mean  to  say 
is,  that  the  character  of  one  is  as  good  as  the  other. 

Q.  Can  you  state,  also,  the  area  of  the  water-shed  of  the  lower 
Sudbury  ; not  the  waters  which  drain  through  the  Assabet  into  the 
Concord  river  at  Concord,  but  the  waters  which  drain  into  the 
Sudbury,  above  the  Assabet?  I want  the  area  which  drains  into 
that  stream  between  the  city  dam  and  the  mouth  of  the  Assabet. 
I understand  that  the  72.3  square  miles  which  you  have  stated  is 
the  area  of  the  upper  Sudbury,  above  the  point  where  the  city  dam 
is.  Now,  I want  the  area  of  the  lower  part  of  the  Sudbury  river, 
which  drains  into  it  at  the  place  where  the  Assabet  comes  in  and 
forms  the  Concord.  The  Assabet  and  Sudbury  join  at  Concord, 
and  the  water  of  the  two  becomes  the  Concord  river. 

A.  That  area  I have  had  calculated,  and  I find  62J  square  miles 
by  Borden’s  map. 

Q.  I will  ask  you  now  as  to  the  comparative  rainfall  on  that 
upper  Sudbury  area,  as  compared  with  the  rainfall  on  the  Essex 
Company’s  New  Hampshire  area,  or  with  the  rainfall  on  the  rest 
of  the  Essex  Company’s  area? 

A.  The  materials  that  I have  had  for  comparing  the  rainfall  of 
the  different  areas  are  the  observations  of  nineteen  years,  at  Lake 
Village  and  at  Weir’s  Landing,  near  Lake  Winnipiseogee,  and  the 
average  of  those  nineteen  years  is  43.27  inches  of  rain  yearly.  That 
is,  at  these  two  places  those  gauges  are  about  4J  miles  apart,  and 
being  so  near  together  I took  them  together,  or  rather  the  average 
of  the  two,  as  forming  one  quantity.  At  Wolf  boro’  we  have  had 


72 


Essex  Company. 


rain  gauges  taken  for  the  last  six  years.  That  is  at  the  other  end 
of  Lake  Winnipiseogee,  some  thirty  miles  away,  the  average 
for  six  years  is  39.27.  We  have  two  rain  gauges  on  the  other 
branch  of  the  Merrimack,  at  Bristol  and  at  Ashland.  They  have 
been  taken  for  the  last  six  years. 

Mr.  Abbott.  Those  have  been  exceptionally  dry  years. 

Q.  About  how  far  are  they  from  the  Weirs? 

A.  I should  think  thirty  miles.  This  is  on  the  Pemigewasset 
branch.  These  have  been  taken  for  about  six  years.  The  rain- 
fall at  Bristol  is  45.35  ; at  Ashland,  45.79  ; average  of  the  two 
together,  45.57.  Then  at  Lowell  there  are  two  gauges,  and  at 
Lawrence  one  gauge. 

Q.  How  long  have  they  been  kept? 

A.  The  Locks  and  Canals  gauge  for  twenty-one  years  ; the  Mer- 
rimack Manufacturing  Company's  for  twenty-seven  years.  I say 
twenty-seven  years  ; the  results  of  these  two  gauges  I took  from 
the  last  city  document,  No.  80,  of  this  year,  and  I do  not  know 
that  this  Lowell  gauge  has  not  been  taken  longer  than  twent}T- 
seven  }Tears. 

Q.  How  long  has  the  gauge  at  Lawrence  been  taken  ? 

A.  For  nineteen  years. 

Q.  The  average  of  those  three  is  how  much? 

A.  I will  give  the  three  in  detail,  as  they  show  that  they  do  not 
vary  much.  The  Locks  and  Canals  gauge,  45.71 ; Merrimack 
Manufacturing  Company’s,  43.77  ; and  the  Lawrence  gauge,  43.16  ; 
making  an  average  of  44.21.  That  is,  dividing  the  sum  of  these 
three,  it  is  44.21. 

Commissioner  Francis.  The  average  for  one  year  is  generally 
greater  by  one  of  these  gauges  than  the  other,  — generally  greater 
by  the  Locks  and  Canals  gauge. 

Mr.  Abbott.  You  have  no  idea  that  there  is  any  substantial 
difference  in  the  actual  amount  of  rainfall? 

Commissioner  Francis.  No,  sir ; the  gauges  are  differently 
situated,  and  of  a little  different  form.  1 think  likely  that  the 
Merrimack  Company  get  more  rain  than  they  did  fifty  years  ago 
by  taking  more  care  in  making  the  record,  I suppose. 

Q.  Will  you  give  the  next  gauge  }tou  have? 

A.  The  next  gauge  I have  is  at  Lake  Cochituate.  The  average 
for  twenty -four  years  given  in  the  last  report  of  the  Water  Board 
is  50.19.  The  mean  of  the  four  gauges  is  44.50. 

Q:  Which  is  the  nearest  of  those  gauges  to  the  Sudbury  area? 

A.  The  Lake  Cochituate. 

Q.  That  is  close  to  the  edge  of  the  area,  is  it  not? 

A.  Yes,  sir. 

Q.  Will  you  state  how  }^ou  arrived  at  the  quantities,  4,136 
square  miles,  and  72.3  square  miles,  and  whether  the  methods  em- 
ployed in  the  two  cases  were  or  were  not  the  same? 

A.  The  72.3  was  determined  from  Borden’s  map  of  the  State 
of  Massachusetts,  by  drawing  a line  as  nearly  as  possible  between 
the  divisions  of  the  waters  as  shown  on  that  map. 

Q.  And  how  was  the  rest  of  the  Essex  Company’s  area  ob- 
tained ? 


H.  F.  Mills. 


73 


A.  That  part  in  Massachusetts  was  all  obtained  from  Borden’s 
map  of  the  State.  The  part  in  New  Hampshire  was  obtained  from 
Carrigain’s  map  of  New  Hampshire,  and  the  nine  county  maps 
that  contained  part  of  the  area,  and  the  mean  of  the  two  results 
taken. 

Q.  Will  you  state  whether  you  have,  in  the  course  of  your  per- 
formance of  your  duties  for  the  Essex  Company,  ascertained  the 
comparative  price  of  steam  and  water  power,  with  a view  to 
ascertain  what  price  it  was  advisable  for  a mill  to  pay  for  water- 
power, rather  than  start  their  engine,  and  if  so,  state  the  results 
which  you  arrived  at,  and  whether  you  acted  upon  them  ? I do  not 
ask  you  for  the  precise  value,  but  the  price  at  which  you  think 
there  is  no  doubt  it  is  better  to  use  water  than  to  start  the  engine 
which  a mill  has  already. 

A.  I was  going  to  say  I could  not  give  you  the  precise  result, 
for  I haven’t  it  with  me ; but  this  conclusion  I did  arrive  at,  that 
it  was  better  for  the  mills  to  pay  $ 12  a mill-power  a day  for  their 
water  than  to  start  their  engines. 

Q.  How  large  engines  have  the  Pacific  got  at  Lawrence  ? 

A.  I think  at  the  Central  Pacific  Mill  they  have  one  of  about 
1,000  horse-power. 

Q.  Whether  or  not,  when  they  can  use  surplus  water-power  at 
an  expense  of  $12  a day,  do  they  use  that  power  or  start  the 
engines  ? 

A . They  have  used  the  water-power  in  preference  to  starting 
their  engines. 

Q.  Invariably?  I mean  to  confine  my  question,  of  course,  to 
times  when  there  is  water  that  can  be  got,  and  when  they  can  take 
the  option  whether  they  will  take  the  water  at  $12  a day  or  start 
their  engines? 

A.  I think  they  have  been  running  their  engine  sometimes 
when  they  have  been  paying  $12  for  water;  but  when  they  have 
had  ample  steam-engine  capacity  for  all  the  surplus  power  they 
have  drawn,  they  have  bought  water  and  paid  $12  for  it,  months 
together. 

Q.  And  let  their  engine  lay  idle? 

Q.  (By  Mr.  Merwin.)  That  is,  when  they  have  had  the  election 
of  paying  $12  or  using  their  steam,  they  preferred  to  take  the 
water-power  at  $12? 

A.  Yes,  sir  ; they  have  taken  it. 

Q.  (By  Mr.  Butler.)  Would  $12  a mill-power  per  day  be 
about  $60  a horse-power  per  year? 

A.  That  would  be  about  $45  a horse-power — at  the  rate  the 
horse-power  of  a steam  engine  is  generally  reckoned — indicated 
horse-power. 

Q.  (By  Mr.  Storrow.)  You  speak  of  “indicated  horse-power, 

I understand,  which  is  a very  different  thing  from  horse-power  on 
the  shaft? 

A.  It  would  be  about  $60  for  a horse-power  on  the  shaft. 

Mr.  Abbott.  That  would  be  merely  the  daily  expense  of  coal 
and  service  on  the  steam  engine,  without  the  expense  of  capital. 


74 


Essex  Company. 


Q.  (By  Mr.  Merwin.)  Your  estimate  assumes  that  the  steam 
engine  is  already  put  in  with  all  the  appliances? 

A.  No  ; there  is  no  assumption  of  anything.  The  question  is, 
how  much  this  $12  a day  would  amount  to  per  horse-power  per 
year. 

Q.  And  you  say  it  is  equivalent  to  $60  a year  on  the  shaft,  and 
about  $45  indicator  power  ? 

A.  Yes,  sir. 

Commissioner  Francis  (to  Mr.  Storrow).  This  is  not  intended 
to  be  the  cost  of  a steam  engine  ? 

Mr.  Storrow.  No,  sir  ; it  is  intended  to  show  that  the  cost  of 
steam-power  is  above  that ; that  a man  will  pay  that  for  water- 
power when  he  has  a steam  engine  in. 


Cross-examination  by  Mr.  Butler. 

Q.  I suppose,  Mr.  Mills,  that  with  an  engine  already  put  in, 
and  in  running  order,  with  an  engineer  and  fireman  all  ready  under 
pay,  which  they  must  have,  the  only  cost  of  using  horse-power  by 
steam  would  be  the  cost  of  coal,  wear  and  tear  of  the  engine,  and 
oil  and  waste? 

A.  Those  would  be  the  principal  items. 

Q.  Do  you  think  of  any  other?  — Oil  — waste  — coal  — wear 
and  tear  of  the  engine  ? 

A.  Well,  there  would  be  the  cost  of  the  men  engaged  in  run- 
ning it. 

Q.  Pardon  me.  Do  they  not  keep  an  engineer  all  the  time  ? 

A.  Yes,  sir. 

Q.  Do  they  not  keep  a fireman,  and  keep  steam  in  the  boiler  all 
the  time? 

A.  Not  to  the  same  extent.  They  have  a fireman  at  work  all 
the  time. 

Q.  Now,  sir,  what  do  you  say  it  is  worth  to  generate  a horse- 
power of  steam  ? Having  the  engine  and  all  the  appliances  and 
fire  under  your  boilers,  what  do  you  say  it  is  worth  per  horse- 
power ? 

A.  Oh,  they  don’t  have  fire  under  the  boilers  in  this  case. 

Q.  Is  there  ever  a time,  in  your  judgment,  that  the  Pacific 
Mills  do  not  have  fire  under  their  boilers,  or  some  of  them? 

A.  They  have  under  some  of  them,  because  they  have  use  for 
that  steam  ; but  not  under  all  of  them. 

Q.  Suppose  you  confine  yourself  to  my  question,  and  leave 
other  matters  out : we  shall  get  along  better,  I think.  I want  to 
get  your  judgment.  My  question  is  this : What,  in  your  judg- 
ment, from  your  calculations,  does  it  cost  a year  to  make  a horse- 
power of  steam  — the  engine  being  already  prepared,  a portion  of 
the  boilers  being  heated,  and  an  engineer  and  fireman  to  attend  to 
a portion  of  the  boilers? 

A.  I haven’t  the  calculation  here ; but  from  what  data  I have 
here,  I conclude  it  would  be  not  far  from  $60  per  annum. 

Q.  IIow  many  pounds  of  coal  per  day  per  horse-power? 


H.  F.  Mills. 


75 


A.  I haven’t  got  all  my  data  here  for  the  calculation,  but  this 
will  give  you  some  idea. 

Q.  My  question  was  a very  distinct  one,  Mr.  Mills  : How  much 
coal  it  would  take  per  day,  or  any  other  time,  per  horse-power? 

A.  When  their  engines  are  in  good  condition,  they  use  about 
three  pounds  of  coal  per  hour  per  horse-power,  at  about  seven 
dollars  a ton. 

Q.  Is  that  a day  of  ten,  twelve,  or  fifteen  hours  ? 

A,  Ten  hours. 

Q.  30  pounds  a day,  300  days  a year,  would  make  how  much  ? 

A.  9,000  pounds ; at  seven  dollars  per  ton,  that  would  be  $30 
for  coal.  I think  that  is  about  as  low  as  they  get  it. 

Q.  Now,  then,  how  much  for  oil  ? 

A.  I cannot  tell.  I haven’t  got  any  figures  here. 

Q.  What  other  items  did  you  put  in,  sir? 

A.  The  engineer  and  fireman. 

Q.  How  much  do  you  make  a day  for  them? 

A.  For  a hundred  horse-power  engine,  I suppose  it  would  be 
about  $15  a day. 

Q.  Would  it  cost  any  more  for  a thousand  horse-power  engine 
than  it  would  for  an  engine  of  a hundred  horse-power?  Wouldn’t 
an  engineer  tend  one  as  well  as  the  other,  if  it  was  a good  engine  ? 

A.  You  want  a much  better  engineer. 

Q.  A competent  engineer  could  tend  one  as  well  as  the  other? 

A.  Yes,  sir;  what  I intended  to  say  was,  $15  per  horse-power 
per  year.  That  is,  $1,500  per  year  for  a hundred  horse-power  en- 
gine. 

Q.  That  would  be  $5  per  day  for  the  two? 

A.  Yes,  sir. 

Q.  What  else? 

A.  There  would  be  the  depreciation  of  the  engine  from  the 
running,  and  the  wear  of  the  boiler. 

Q.  Now,  as  an  engineer,  I will  put  you  this  question : Which 
do  you  think  would  depreciate  the  most  — an  engine  standing  still 
or  running? 

A.  There  is  more  wear  running  than  standing  still. 

Q.  I know  there  is  more  wear  ; but  which  would  depreciate  the 
most,  in  your  judgment,  — an  engine  standing  still  three  years  or 
running  three  years  ? 

A.  An  engine  running. 

Q.  How  much? 

A.  I cannot  tell  you. 

Q.  Now,  will  you  tell  me  whether  this  engine  is  used  most  by 
the  Pacific  Mills  when  the  water  is  too  high  or  too  low  ? 

A.  When  it  is  too  high  ; that  is,  when  it  is  too  high  below  the 
mills  ; when  the  fall  is  the  least. 

Q.  When  it  is  too  high  below  the  mills,  it  is  generally  too  high 
above  them,  is  it  not? 

A.  No,  sir ; the  water  is  kept  at  a constant  height  in  the  canal. 

Q.  No ; the  water  in  the  river  is  higher  when  there  is  a great 
flow  of  water? 

A.  Yes,  sir. 


76 


Essex  Company. 


Q.  Did  you  ever  know  them  to  run  it  because  they  were  short  of 
water  unless  you  were  repairing,  or  something,  of  that  sort? 

A.  No,  sir,  I have  not.  I think  they  did  run  it  one  time  when 
they  were  short  of  water,  because  they  hadn’t  wheel  capacity  ; but 
they  put  in  larger  wheels  so  that  they  could  run  by  them. 

Q.  Their  water  has  never  cost  them,  has  it,  more  than  $15  a 
horse-power  ? 

A.  Yes,  sir;  they  pay  $12  a mill-power  per  day  for  a great  deal 
of  it. 

Q.  Have  they  since  1869? 

A.  Yes,  sir  ; every  year.  Excuse  me,  I have  made  a mistake  in 
saying  “ 1869.”  They  did  not  do  it  until  1870.  Since  the  fall  of 
1870  they  have  paid  $12.  Through  1870 — that  is,  the  latter  half, 
from  the  1st  of  October,  1870 — ’7i,  ’72,  ’73,  ’74,  and  ’75,  I think  ; 
I am  quite  sure. 

Q.  In  1869,  didn’t  they  buy  whatever  mill-power  they  chose  to 
buy  at  $15,000  a mill-power? 

A.  No,  sir  ; they  bought  power  in  1869.  I don’t  remember  the 
rate  they  paid  for  it. 

Q.  Didn’t  they  buy  what  they  chose  to  buy? 

A.  No,  sir ; I understood  not.  I was  not  in  the  employ  of  the 
Company  at  that  time. 

Q.  How  high  up  in  New  Hampshire  did  you  begin  to  measure 
your  water-shed? 

A.  As  far  as  it  extends. 

[Witness  was  about  to  refer  to  a map,  when  Mr.  Butler  said  : — 
I object  to  your  looking  at  a map,  and  insist  upon  having  an  answer 
to  my  question.  I want  to  know  where  you  began  to  measure 
your  water-shed,  if  you  know.  If  you  don’t  know,  say  so.] 

A.  I began  at  the  division  of  the  waters,  as  shown  on  the  map, 
at  the  upper  part  of  the  drainage  area. 

Q.  Where  was  that? 

A,  I cannot  tell. 

Q.  Don’t  you  know  whether  you  began  up  in  the  White  Moun- 
tains, or  not? 

A.  The  map  will  show  that  I made  the  drainage  area  from. 

Q.  Is  the  map  at  which  you  looked  the  map  from  which  you 
made  the  drainage  area  ? 

A.  No,  sir. 

Q.  Then  you  cannot  tell  without  looking  at  the  map? 

A.  No,  sir. 

Q.  Now,  sir,  can  you  tell  me  what  streams  you  took  in  as  feeders 
of  the  Merrimack  ? 

A.  No,  sir. 

Q.  Any  one  of  them  ? 

A.  All  that  are  represented  on  those  maps  that  I speak  of. 

Q.  Can  you  tell  me  any  one  of  them  ? 

A.  I don’t  know  as  I can  give  the  names  of  them. 

Q.  Can  you  tell  me  one  of  them  in  the  whole  distance  down? 

A.  Well,  there  was  the  — I don’t  know  what  you  intend  to  ask. 

Q.  I want  to  know  if  you  can  tell  me  any  one  stream  which  you 
took  in  as  a feeder  of  the  Merrimack  ? 


H.  F.  Mills. 


77 


A.  I took  in  the  Pemigewasset  and  Contoocook  branches. 

Q.  Any  other? 

A.  I don’t  remember  the  names  of  them. 

Q.  Did  you  take  in  the  Nashua  river? 

A.  Yes,  sir,  I took  in  the  Nashua  river. 

Q.  Any  other? 

A.  The  Concord. 

Q.  Any  other? 

A.  I took  in  Beaver  brook. 

Q.  Any  other? 

A.  I don’t  remember  to  call  the  names  of  them. 

Q.  When  did  you  do  this? 

A.  During  the  last  year. 

Q.  For  the  purposes  of  this  case  ? 

A.  Yes,  certainly. 

Q.  Now,  sir,  did  you  take  in  the  lake  water-shed  area  at  Lake 
Winnepiseogee? 

A.  Yes. 

Q.  Did  the  map  which  you  used  show  any  of  the  reservoirs,  or 
storage  basins,  of  any  stream  until  you  got  down  to  the  Concord  ? 

A.  It  had  the  lakes  and  ponds  as  they  are  represented  on  the 
county  maps,  and  on  Carrigain’s  map  of  New  Hampshire. 

Q.  Do  you  know  whether  those  lakes  had  been  made  into  reser- 
voirs or  not? 

A . Some  of  them  had. 

Q.  Do  you  know  to  what  extent  ? 

A.  I don’t  know  as  to  what  extent,  beyond  that  of  the  Lake 
Company. 

Q.  I know ; that  I lay  aside  now.  Did  your  map  show  the 
private  reservoirs  ? What  I mean  is,  reservoirs  that  were  made, 
and  were  not  natural  ponds  ? 

A.  I don’t  remember  of  any.  My  attention  was  directed  more 
to  the  outlines  of  the  drainage  area  in  my  examination. 

Q.  How  were  the  outlines  shown,  sir? 

A.  By  where  the  streams  running  in  one  direction  stopped,  and 
in  cases  where  there  were  hills  and  mountains  represented. 

Q.  By  taking  the  streams  running  in  one  direction  and  the 
other  ? 

A.  Yes,  sir. 

Q.  Had  you  any  evidence  that  those  maps  were  taken  from 
actual  surveys? 

A.  They  are  represented  to  be  so.  I think  they  are  all  repre- 
sented to  be  taken  from  actual  surveys.  They  are  regarded  as  the 
best  maps  that  we  have  of  that  territory. 

Q.  Now,  then,  when  you  came  to  the  Concord  did  you  take  the 
water-shed  at  all  of  the  Assabet  ? 

A.  I have  made  an  estimate  of  the  water-shed  of  the  Concord, 
including  the  whole. 

Q.  How  much  did  you  make  that,  — take  it  in  the  first  instance, 
at  Billerica? 

A.  I haven’t  it  at  Billerica.  I have  the  water-shed  above  the 
Wamesit  dam  at  Lowell  — ^ 352  square  miles.  That  includes  every- 


78 


Essex  Company. 


thing  down  to  the  Wamesit  dam,  including  the  73  square  miles  of 
the  Sudbury. 

Q.  That  would  make  the  water-shed  of  the  Sudbury  above  the 
city’s  dam  about  one-fifth  of  the  water-shed  of  the  Concord  river? 

A.  Yes,  sir  ; ¥7^-  of  the  total  area. 

Q.  Have  you  the  water-shed  of  any  other  tributary  of  the  Con- 
cord except  the  Assabet,  so  as  to  give  me  the  distinct  water-shed 
of  those  two  streams  ? 

A.  Nothing  but  what  I have  given  you.  Mr.  Storrow  asked 
me  the  drainage  area  of  the  upper  Sudbury,  and  then  of  the  lower 
Sudbury. 

Q.  Can  you  give  us  all  the  upper  branches  of  the  Sudbury  and 
the  Concord? 

A.  The  upper  branches  of  the  Concord  are  the  Sudbury  and  the 
Assabet. 

Q.  The  Assabet  is  formed  of  two  rivers,  is  it  not? 

A.  I don’t  remember  their  names.  I know  there  are  two  upper 
branches. 

Q.  Then,  there  are  quite  a number  of  other  streams,  are  there 
not? 

A.  Yes,  sir. 

Q.  On  which  there  are  mill-powers  — Black-brook  river  and 
Meadow  brook? 

A.  Yes,  sir. 

Q.  The  Assabet  has  a number  of  reservoirs,  has  it  not? 

A.  The  Assabet  has  a number  of  mill-ponds. 

Q.  And  reservoirs,  too,  has  it  not? 

A.  I don’t  know  about  its  reservoirs,  — about  the  amount  they 
have  to  draw  upon  for  storage  from  spring  to  summer. 

Q.  Now,  we  are  told  something  about  this  stream,  and  I will 
put  you  the  same  question  I put  to  Mr.  Storrow : Do  you  not 
believe  that  the  water  in  the  Merrimack  is  very  largely  increased 
by  storage  over  what  it  would  be.  if  it  ran  in  a state  of  nature,  — 
the  amount  of  water  running  in  the  dry  months  of  summer? 

A.  During  the  months  of  August,  September,  and  October,  it 
is  increased,  I know,  by  the  quantity  that  is  drawn  from  the  Lake 
Co.’s  reservoirs ; during  the  early  months  it  may  be  increased  by 
the  quantity  drawn  from  private  reservoirs  ; but  I should  suppose 
not  to  a large  extent. 

Q.  Leaving  out  the  Lake  Co.’s  reservoirs,  if  you  please,  as  an 
engineer,  do  you  not  believe  that  storing  up  the  water  of  the 
branches  and  feeders  of  the  river,  to  be  used  during  the  working 
hours  of  the  da}T,  through  the  summer  months,  increases  the  flow 
during  those  months  in  the  streams  below  ? 

A.  It  may,  and  may  not.  It  may  decidedly  diminish  them. 
It  depends  upon  the  way  in  which  those  reservoirs  are  used,  and 
the  amount  they  can  be  drawn  down. 

Q.  Using  them  as  men  naturally  do  who  make  reservoirs  for 
mill  purposes,  don’t  jrou  think  it  increases  it? 

A.  With  such  reservoirs  as  are  made  for  this  purpose,  I sup- 
pose that  the  water  that  is  carried  over  from  the  spring  is  run  out 
and  evaporated  ordinarity  as  soon  as  the  middle  of  July.  After 


H.  F.  Mills. 


79 


that,  I suppose  the  quantity  of  water  flowing  is  likely  to  be 
decreased  on  account  of  the  reservoirs. 

Q.  You  assume  that  the  stored  water  is  all  used  up  before  the 
middle  of  July,  and  then  it  takes  more  rain  to  fill  up  the  reser- 
voirs which  have  been  drawn  down,  so  that  you  do  not  get  so 
much  water  down  below? 

A.  No ; that  the  water  that  is  carried  over  from  the  spring  is 
likely  to  be  used  up  by  that  time,  and  that  there  is  no  advantage 
in  them  beyond  the  use  of  the  amount  which  is  carried  over. 

Q.  Are  there  not,  during  the  months  of  June  and  July,  fre- 
quently large  rains  which  would  be  an  overflow  in  a state  of  nature, 
which  might  be  retained  ? 

A.  Yes,  sir ; but  as  much  water,  or  more,  would  flow  from 
those  rains  through  the  reservoirs  through  the  summer  months,  if 
the  reservoirs  were  not  there,  as  if  they  were  there. 

Q.  Available  for  power? 

A.  It  would  depend  upon  the  conditions  under  which  it  is  used. 

Q.  Without  fencing  about  it,  do  you  think  a river  would  be  as 
valuable  for  power  without  reservoirs  up  and  down  upon  its 
streams,  as  with? 

A.  No,  sir. 

Q.  Don’t  you  think  that  every  reservoir  that  is  built  on  a feeder 
of  the  Merrimack  river  contributes  to  its  effectiveness  at  Lawrence 
for  water-power  in  the  dry  season  ? 

A.  I cannot  say  that. 

Q.  You  cannot  say  whether  it  does  or  not? 

A.  Not  that  all  of  them  do.  They  may  be  used  so  as  to  be 
effective. 

Q.  Pardon  me.  I do  not  assume  that  men  make  reservoirs  for 
the  purpose  of  not  using  them.  I am  speaking  of  reservoirs  made 
and  used  as  men  of  ordinary  prudence  and  judgment  spend  their 
money  and  use  their  reservoirs.  Now,  do  you  or  do  you  not 
believe,  as  an  engineer,  that  those  reservoirs  are  an  advantage  to 
the  effective  water-power  at  the  Lawrence  dam,  and  that  a new  one 
would  add  as  much  as  it  might? 

A.  As  I said  before,  I have  no  doubt  that  these  reservoirs  in- 
crease the  water  flowing  in  the  early  part  of  the  season.  After 
that,  they  may  be  an  advantage,  or  they  may  be  a disadvantage. 

Q.  The  early  part  of  the  season  you  put  as  the  15th  of  July? 

A.  Yes,  sir,  I put  it  at  about  that  time. 

Q.  Passing  from  that,  Mr.  Mills,  as  I have  got  your  idea  about 
it,  will  you  tell  me  whether  since  you  have  been  there  you  have 
been  short  of  water? 

A.  No,  sir;  we  always  have  had  a good  deal  more  than  we 
have  sold. 

Q.  Then  when  you  speak  of  surplus  water  you  mean  that  which 
you  have  not  theretofore  sold  ? 

A.  We  have  sold  to  the  companies  a definite  quantity  of  water. 
Whenever  they  use  more  than  that,  we  charge  each  one  with 
surplus  water. 

Q.  It  is  the  water  which  you,  having  in  excess  of  what  you 


80 


Essex  Company. 


have  sold  for  use,  sell  them  above  the  definite  quantity  that  you 
have  sold? 

A.  We  have  sold  them  on  the  North  canal  a definite  quantity, 
and  refused  to  sell  them  more.  They  have  applied  for  it  very 
often.  But  we  allow  them  to  use  temporarily  water  for  which  we 
charge  them  by  the  day,  — and  that  is  what  we  call  surplus  water. 

Q.  That  is,  — surplus  in  this,  — in  that  it  is  water  that  you 
have  not  sold  them  ? 

A . Yes,  sir. 

Q.  What  do  you  believe,  from  your  knowledge  of  the  river,  to 
be  the  actual  power  of  that  great  river,  — its  steady  power,  irre- 
spective of  any  diminution  by  the  city  ? Supposing  the  city^  had 
not  taken  any,  and  that  it  remained  the  same  as  it  was  before 
1872,  how  many  mill-powers  was  the  capacity  of  that  river  to 
furnish  steady  power? 

A.  2,400  cubic  feet  a second. 

Q.  There  were  25  feet  fall? 

A.  No,  sir,  we  have  greater  fall  than  that.  It  would  be  for  24 
hours. 

Q.  I want  you  to  tell  me,  — not  how  many  feet  it  would  be  per 
second  every  24  hours,  or  how  many  feet  per  second  there  would 
be  in  the  night-time,  or  in  the  daytime,  — but  I want  you  to  tell 
me  how  much,  in  your  judgment,  is  the  capacity  of  that  river  at 
Lawrence  to  afford  a steady  power?  State  it  in  mill-powers  or  in 
horse-powers,  as  you  have  a fancy. 

Mr.  Storrow.  What  its  actual  practical  capacity  is  ? 

Gen.  Butler.  I mean  as  the  power  is  used  in  the  manner  that 
men  ordinarily  use  power?  I want  to  get  rid  of  these  refinements 
if  I can.  I want  to  know  what  effective  power  that  river  furnishes 
there? 

A.  186  mill-powers. 

Q.  That,  you  think,  is  its  full  capacity? 

A,  I think  that  is  the  capacity  that  we  can  depend  upon. 

Q.  That  you  can  depend  upon? 

A.  Yes,  sir. 

Q.  Well,  of  course,  that  is  the  utmost  capacity  for  steady  power  ? 
That  is  the  utmost  capacity,  as  a power,  that  you  would  venture  to 
sell,  and  guarantee  the  buyer  power  all  the  year? 

A.  Yes,  sir. 

Q.  And  no  more? 

A.  That  is  all  we  could  guarantee  him. 

Q.  Would  it  make  any  difference  whether  that  was  used  twelve 
hours  or  sixteen  hours  a day  ? 

A.  Yes,  sir. 

Q.  How  much? 

A.  You  ask  for  the  quantity,  as  they  are  in  the  habit  of  using 
power.  That  was  your  question  ; and  I answered  it.  Upon  a use 
of  that  power  during  twelve  hours  ; and  if  it  is  used  a longer  time  — 

Q The  186  mill-powers  were  for  twelve  hours? 

A.  Yes,  sir.  If  used  a longer  time,  it  would  be  a less  quantity, 
and  a less  number  of  mill-powers.  If  used  a shorter  time,  it  would 
be  more  mill-powers. 


H.  F.  Mills. 


81 


Q.  Is  that  irrespective  of  your  idea  about  concentration  of 
power,  — which  you  talked  about  the  other  day  ? 

A.  It  is  the  actual  condition  of  things  that  we  can  control  there 
by  our  works. 

Q.  Is  this  with  the  aid  of  the  lakes? 

A.  It  is. 

Q.  How  many  mill-powers  do  they  have  at  Lowell  ? How  is 
their  capacity? 

A.  I cannot  tell. 

Q.  Have  they  not  used  as  high  as  200  ? 

A.  Yes,  sir,  I have  understood  so. 

Q.  I mean  in  the  dry  season  ? 

A.  I am  not  sure. 

Q.  You  have  the  Concord  besides? 

A.  Yes,  sir. 

Q.  And  some  other  feeders  ? 

A.  Yes,  sir,  some  small  ones. 

Q.  The  Concord  you  rate  at  about  ten  mill-powers? 

A.  I don’t  know  that  I have  ever  made  any  estimate  on  it. 

Q.  I mean  with  a fall  of  26  feet.  Do  you  make  that  about 
ten  mill-powers,  taking  the  average  of  quantity  that  you  have? 

A.  I have  made  no  estimate  of  the  flow. 

Q.  That  is  600  horse-power? 

A.  I have  made  no  estimate  of  the  quantity. 

Q.  288  cubic  feet  per  second  was  all  it  sold  for  on  the  Wamesit 
dam,  as  we  have  learned.  That  would  be  about  600  horse-power, 
would  it  not? 

A.  Please  state  it  again.  I did  not  know  that  your  statement 
was  to  be  part  of  a question. 

Q.  288  cubic  feet  per  second  on  a 26-feet  fall  ? 

A.  [After  making  a calculation],  288  cubic  feet  per  second  on 
a fall  of  26  feet  would  be  ten  mill-powers. 

Q.  That  is  as  it  has  been  rated.  I wanted  to  get  in  the  evidence 
of  it.  Before  I quit  this  subject  of  “ water-shed,”  for  a moment, 
will  you  tell  me  whether  you  made  these  measurements  for  your- 
self, actually,  of  the  maps? 

A.  No,  sir,  they  were  made  from  my  direction. 

Q.  How  much  time  did  you  spend  on  them  ? 

A.  I cannot  tell.  I examined  the  maps  in  the  neighborhood  of 
the  lines  carefully  to  see  whether  I could  make  any  change  in 
them. 

Q.  Did  you  make  the  computations  ? 

A.  I did  not.  I had  them  made  twice,  independently. 

Q.  You  did  not  make  them? 

A.  No,  sir,  I did  not  make  them. 

Q.  How  much  of  time  during  the  last  summer  up  to  now 
has  the  water  been  running  over  the  dam  at  Lawrence  ? 

A.  It  has  run  over  every  day.  I cannot  tell  you  just  how  many 
hotirs. 

Q.  You  tell  us  that  b}'-  concentration  of  water-power,  as  it  is 
called,  you  could  store  up  the  water  that  comes  down,  so  as  to  use 


82 


Essex  Company. 


more  of  it.  Could  you  use  more  of  the  amount  that  runs  over  the 
dam? 

A.  Yes,  sir.  Whenever  there  is  2,400  cubic  feet  of  water  com- 
ing, and  no  more,  we  can  use  it  within  the  twelve  hours. 

Q.  How  much  of  the  time  is  there  2,400  cubic  feet  per  second 
running,  and  only  that? 

A.  It  is  about  twelve  hours ; — but  not  the  twelve  working 
hours. 

Q.  How  much  of  the  time  is  that  amount,  and  only  that  amount, 
running? 

A.  About  twelve  hours. 

Q.  How  many  months  in  the  year? 

A.  Well,  I have  found  — 

Mr.  Merwin  [interrupting].  That  is  all  in  the  tables,  General, 
is  it  not? 

Mr.  Storrow.  The  tables  on  pages  30  and  31  give  all  that. 

A.  [Consulting  memorandum.]  I have  made  a memorandum 
which  I think  covers  just  that  exact  question.  There  are  five 
weeks  during  the  past  six  years  when  we  have  not  had  that  amount. 
During  all  of  the  other  weeks  — 

Q.  You  mean  2,400  feet  per  second  and  upwards  ? 

A.  Yes,  sir. 

Q.  Now,  sir,  about  the  storing  of  water,  you  have  no  capacity 
for  storage  beyond  your  present  capacity,  have  you? 

A.  No,  sir. 

Q.  Now,  so  long  as  a greater  quantity  of  water  comes  down 
than  you  use,  so  long  jrou  have  no  capacity  for  storage  ? 

A.  We  have  our  pond  for  storing.  We  have  our  mill-pond. 

Q.  Undoubtedly  ; that  is  there  all  the  time.  That  is  a constant 
quantity. 

A.  After  that  is  full,  then  there  is  no  room  for  storage. 

Q.  And  if  more  water  comes  down  from  Lowell,  through  the 
Merrimack  and  the  Concord,  than  you  are  using  day  by  day,  then 
you  have  no  capacity  for  storage  ? 

A.  We  have  capacity  to  store  from  one  hour  to  another  during 
the  day,  — but  not  from  day  to  day. 

Q.  Now,  if  I get  your  idea  of  what  is  called  “ concentration  of 
water,”  it  is  that  you  might  draw  down,  through  a portion  of  the 
day,  below  the  top  of  your  dam,  and  let  that  fill  up  from  the  water 
which  would  come  in  during  the  night  or  during  the  rest  of  the 
day? 

A.  Yes,  sir. 

Q.  Have  you  taken  that  into  consideration  in  your  186  mill- 
powers  ? 

A.  Yes,  sir. 

Q.  In  making  that  storage,  how  much  would  you  draw  down 
your  head  ? 

A.  [After  consulting  memorandum  book.]  In  the  first  hour 
and  a half  (we  starting  at  half-past  6 in  the  morning,  the  water 
from  Lowell  not  getting  to  us  until  about  8 o’clock),  we  would 
draw  down  the  pond  T8^  of  a foot.  Then,  using  during  the  day,  — 
using  more  than  comes  from  Lowell,  — we  should  continue  draw- 


H.  F.  Mills. 


83 


ing  down  to  such  an  extent  that  at  night  we  should  be  .87  of  a foot 
lower  than  that. 

Q.  Two  “ TVar  ”? 

A.  Yes,  sir. 

Q.  A foot  and  three-quarters? 

A.  Yes,  sir. 

Q.  Very  well ; then  you  assume  that  it  will  fill  up  during  the 
night?  It  is  through  that  consumption  that  you  are  running  2,400 
cubic  feet  and  no  more  ? 

A.  Running  an  average  of  2,400.  There  is  an  average  of  2,400 
in  twenty-four  hours. 

Q.  You  told  us  that  in  2,400  feet  per  day  you  got  600  in  the 
night-time,  and  4,200  in  the  day? 

A.  Yes,  sir  ; or  rather  600  during  one  twelve  hours,  and  4,200 
daring  the  to  her  twelve  hours.  But  that  twelve  hours  does  not 
begin  with  the  starting  of  the  mills.  We  do  not  get  the  4,200  till 
8 o’clock  in  the  morning. 

Q.  That  is,  you  get  it  dependent  upon  the  time  the  water  comes 
down  to  you  ? 

A.  Yes,  sir. 

Q.  And  you  really  get  that  amount  per  day  owing  to  the  open- 
ing of  the  gates  at  Lowell  and  the  letting  out? 

A.  I suppose  it  depends  largely  upon  that. 

Q.  Don’t  it  depend  wholly  upon  that? 

A.  It  depends  also  upon  what  may  be  running  over  their  dam. 

Q.  Then  you  have  more  than  2,400  feet  per  second? 

A.  I think  they  do  not  generally  use  as  much  as  4,800  cubic 
feet  per  second  during  their  working  hours. 

Q.  But,  in  running  over  their  dam,  they  use  more  water  than 
you  do? 

A.  They  do  at  present. 

Q.  If  it  is  running  over  their  dam  besides  this,  you  have  got 
more  than  your  flow  of  2,400  feet  per  second,  when  it  gets  down  to 
you? 

A.  Well,  that  does  not  follow  necessarily. 

Q.  Don’t  it  generally  ? 

A.  I was  taking  it  as  it  is  now.  We  are  using  less  than  they. 

Q.  I understand.  They  are  using  more  than  2,400  feet  per 
second,  are  they  not,  during  working  hours  ? 

A.  Yes,  sir. 

Q.  They  are  using  more  than  that,  or  else  it  would  not  be  any 
storage  at  all.  Well,  now,  I want  to  call  your  attention,  — hav- 
ing got  thus  far,  600  in  the  night-time,  when  the  reservoirs  are 
closed,  and  4,200  in  the  daytime,  — using  working  hours  when  the 
reservoirs  are  open,  don’t  you' think  on  the  whole  the  reservoirs 
will  make  some  difference? 

A.  They  certainty  enabled  the  water  to  be  used  at  the  hours 
that  it  is  desirable  to  use  it. 

Q.  As  an  effective  mill  stream,  the  effective  use  is  all  you  want 
of  it,  I take  it? 

A.  Certainty.  The  water  coming  in  this  way  enables  us  to  use 
it  during  working  hours  to  better  advantage  than  we  could  otherwise. 


84 


Essex  Company. 


Q.  And  if  it  came  all  day,  or  all  the  time,  you  could  not  use  any 
considerable  portion  of  it  by  your  concentration,  could  you? 

A.  No,  sir ; it  is  an  advantage  from  day  to  day ; there  is  no 
question  about  that. 

Q.  And  you  could  not  get  this  advantage  of  a change  from 
hour  to  hour  unless  you  had  this  advantage  from  day  to  day  ? 

A.  No,  sir. 

Q.  Very  well,  then,  it  is  an  advantage  both  day  by  day  and 
hour  by  hour? 

Re-Direct. 

Mr.  Storrow.  We  put  in  by  this  witness  “ rain-diagrams,” 
showing  the  amount  and  date  of  each  shower  during  the  six  sum- 
mer months,  for  six  years,  — since  the  beginning  of  1871, — at 
Lake  Cochituate,  at  Weir’s,  and  at  Lake  Village  in  New  Hamp- 
shire, and  at  Lowell,  Mass.,  showing  the  times  and  the  depth  in 
inches  of  each  shower.  They  show  that  a large  rain  fall  frequently 
falls  on  one  area,  and  none  on  the  other,  and  vice  versa. 

Q.  (By  Mr.  Storrow.)  I will  ask  you  m regard  to  one  fact, 
which  I believe  has  not  been  mentioned.  From  the  drainage  area, 
as  jnm  have  given  it,  what  proportion  of  the  Essex  Company’s 
whole  water-shed  is  the  upper  Sudbury  water-shed? 

A.  One  fifty-seventh. 

Q.  You  have  said  that  if  2,400  feet  per  second  (averaging  that 
through  the  whole  day)  were  running,  you  could  concentrate  that, 
with  a certain  amount  of  loss  of  head,  into  186  powers ; and  if 
more  were  running,  you  could  so  concentrate  it  with  a less  amount 
of  loss  of  head.  If  the  flow  during  the  day  were  represented  by 
more  than  2,400,  and  you  desired  to  concentrate  it,  so  as  to  enable 
you  to  use  186  mill-powers,  would  it  require  a greater  or  a less 
loss  of  head  to  enable  you  to  concentrate  it  so  as  to  get  186  powers? 

A.  A less  loss  of  head. 


Re- Cross. 

Q.  (By  Gen.  Butler.)  I want  to  ask  you  how  much  rainfall 
in  a shower  in  the  middle  of  August,  in  a dry  season,  on  the  upper 
Sudbury,  you  think  could  be  appreciated  down  at  Lawrence  by 
the  finest  instruments  known  to  science  ? 

A.  I have  not  made  a calculation  in  regard  to  that but  it 
would  have  to  be  a very  large  one. 

Q.  How  large  ? 

A.  I cannot  say. 

Q.  I want  your  opinion  as  an  expert. 

A.  I have  not  considered  the  conditions  sufficiently  to  give  an 
opinion. 

Q.  Do  you  believe  that  three  inches  would  make  any  earthly 
difference,  that  could  be  appreciated  down  there  by  any  known  in- 
strument? « 

A.  Yes,  sir ; no  doubt  it  would  make  a very  decided  difference. 


H.  F.  Mills. 


85 


But  whether  we  could  tell  whether  that  came  from  this  quarter  or 
another  quarter  is  a different  matter. 

Q.  That  is  not  the  question  I asked.  I asked  you  this  question  : 
Assume  a shower  at  the  upper  Sudbury  river  and  nowhere  else, 
of  three  inches,  taking  place  yesterday,  in  a dry  season,  do  you 
believe  that  there  is  any  possible  method  of  knowing  whether  that 
does  or  does  not  alter  the  flow  of  water,  — practically , not  theoreti- 
cally, at  Lawrence,  — by  any  gauge  or  measure  3rou  can  make? 

A.  I will  see  [makes  calculation].  I think  it  would  be  pretty 
close  work  to  measure  it ; but  nevertheless  it  could  be  done. 

Q.  Whether  you  should  say,  sir,  from  your  examination  of  the 
water-shed  of  the  whole  Concord  river,  down  to  the  Wamesit  dam, 
assuming  that  no  water  was  taken  away  by  the  city,  in  your  judg- 
ment there  would  be  more  or  less  than  600  horse-power  at  W amesit 
dam  — 26  feet  fall?  [Question  repeated.]  From  your  examination 
of  the  water-shed  and  rainfall  of  the  Concord  river,  including  the 
Sudbury  river,  assuming  the  fall  at  Wamesit  to  be  26  feet,  should 
you  think  there  would  be  more  or  less  than  600  horse-power  or  10 
mill-powers  ? 

A.  I could  not  make  such  a conclusion  without  a great  deal  more 
examination  than  I have  made,  — and  one  could  not  be  made  with- 
out a long  series  of  observations  on  the  matter. 

Q.  Couldn’t  you  approximate,  — whether  there  was  more  or  less  ? 

A.  Is  your  question  in  regard  to  24  hours,  or  12  hours, — the 
288  cubic  feet? 

Q.  It  is  24  hours. 

A.  I should  think  there  could  not  be  realized  that  amount.  It 
may  come  pretty  near  it ; but  as ' an  approximation  I should  say 
that  there  would  be  likely  to  be  less  than  288  cubic  feet  for  24 
hours. 

Q.  Well,  sir,  could  you  approximate  so  as  to  tell  whether  there 
would  be  one-third  more,  so  that  you  could  say,  u I know  there 
will  be  not  over  one-third  more  ” ? 

A.  [After  making  calculation.]  I should  think  there  would  not 
be  so  much  as  288. 

Q.  Have  you  now  got  an  opinion  that  you  know  there  would 
not  be  one-third  more? 

A.  It  is  my  opinion  that  there  would  not  be  a third  more. 

Q . Not  anything  like  it? 

A.  Yes,  sir. 

Q.  Very  well ; that  leads  me  to  another  question : 288  feet  is 
10  mill-powers.  You  have  already  testified  that  the  water-shed 
of  the  upper  Sudbury  is  one-fifth  the  water-shed  of  the  Concord, 
and  therefore  one-fifth  of  the  water-power.  That,  if  there  were 
288  feet  per  second,  would  make  the  Sudbury  at  the  Wamesit  dam 
2 mill-powers.  It  could  not  be  any  more,  I take  it ; that 
water  could  not  be  at  any  more  at  the  Essex  dam  than  2 mill- 
powers.  It  could  not  increase  going  down,  but  would  diminish 
by  evaporation.  Now  then,  you  make  the  water-shed  of  the  Sud- 
bury one  fifty-seventh  of  the  Essex  Company’s  water-shed,  and 
you  make  the  effective  power  of  the  Essex  Company’s  water-shed 
now  186  mill-powers.  That  would  give  considerable  more,  would 


86 


Essex  Company. 


it  not  — or  something  like  3 mill-powers  — for  the  Sudbury  at 
Wamesit  dam,  in  order  to  make  that  up? 

A.  Yes,  sir;  something  like  that. 

Q.  Now,  there  would  be  a mistake  somewhere,  either  that  the 
water-shed  of  the  Sudbury  is  not  so  large  a proportion  of  your 
effective  water-shed  at  Lawrence,  or  else  there  would  be  more 
than  288  cubic  feet  at  Wamesit  dam? 

A.  There  was  a mistake  in  the  question  you  asked  me  before. 
You  asked  me  the  number  of  mill-powers  of  288  cubic  feet,  used 
10  hours  a day.  You  now  speak  of  the  same  number  used 
24  hours. 

Q.  You  assume  storage? 

A.  Yes,  sir. 

Q.  Suppose  there  is  no  storage  absolutely  ? 

A.  It  makes  no  difference  in  the  general  tenor  of  your  question. 

Q.  How  much  more  than  288  feet  do  you  think  is  used  on  the 
Concord  per  day  ? how  much  more  is  there  to  be  used  ? 

A.  I don’t  know  how  it  comes  to  you  there. 

Q.  It  comes,  as  water  generally  does,  running  down  hill.  It 
comes  as  it  does  eome.  Is  there  that  amount  of  water  running 
there  from  your  water-shed,  that  is  what  I want  to  know? 

A.  There  is  not  288  cubic  feet  running  for  24  hours,  when  com- 
pared by  our  water-shed  ; but  288  cubic  feet  running  for  24  hours 
would  be  20  mill-powers  instead  of  10. 

Q.  I understand. 

A.  Provided  it  is  used  12  hours  per  day. 

Q.  Then  you  would  still  think,  — that  is  what  I want  to  get  at, 
— that  there  was  not  that  amount  of  water  in  Concord  river? 

A.  That  the  Concord  river  would  not  supply  288  cubic  feet  per 
second  during  the  24  hours,  during  a dry  time. 

Q.  Nor  anything  like  it? 

A.  I should  expect  it  to  be  less  than  that. 

Q.  Now  I come  to  the  point  in  the  case  that  I want  to  get  out. 
If  in  practice  it  actually  does  supply  that  by  measurement,  it  will 
turn  out  that  that  difference  between  the  theoretical  water-shed 
supply,  in  the  dry  season,  and  the  actual  supply  that  comes  down 
the  river  for  use,  must  be  the  result  of  the  reservoir  and  the  storing 
of  it? 

A.  Ask  your  question  once  more  — I did  not  get  your  point. 

Q.  You  say  the  theoretical  water-shed  supply  would  be  much 
less  than  288  cubic  feet  per  second  in  24  hours.  Now  suppose  it 
turns  out  by  actual  measurement  that  an  amount  equal  to  288  feet 
does  come  down  ; the  only  way  of  accounting  for  the  difference  is 
by  the  increase  of  the  water  from  the  storage,  and  using  it  through 
the  various  dams  — would  that  be  so? 

A.  Well,  there  would  be  several  conditions  affecting  it  — whether 
the  amount  of  rain-fall  on  that  district  were  greater  than  is  usual 
in  this  neighborhood  ; and  it  would  depend  on  some  other  consid- 
erations ; 1 cannot  say  that  the  one  you  speak  of  is  the  only  tiling 
it  would  depend  upon. 

Q.  You  have  testified  that  the  Concord  water-shed  is  an  average 
good  one. 


H.  F.  Mills. 


87 


A.  No,  sir  — the  upper  Sudbury. 

Q.  That  the  upper  Sudbury  is  an  average  good  one  — don’t  you 
think  that  the  lower  one  is  an  average  good  one  ? 

A.  No,  sir,  I do  not ; i.  e.,  I think  that  there  is  probably  a 
waste  from  the  meadows,  that  makes  it  not  so  good  as  an 
average. 

Q.  If  it  does  not  give  you  a good  average,  why  were  you  not 
fair  enough  to  tell  us  before? 

A.  I endeavored  to  answer  your  questions. 

Q.  If  you  came  here  in  order  to  endeavor  to  show  us  how  much 
water  we  take  away  from  you,  — that  the  average  water-shed  of  the 
upper  Sudbury  is  equal  to  the  average  water-shed  of  the  Merri- 
mack, very  well.  But  you  had  in  your  mind  and  knew  the  fact  that 
there  was  a wastage  in  the  meadows  below,  so  that  you  did  not 
at  Lawrence  get  the  full  benefit  of  that  average  water-shed,  as  you 
would  if  there  had  been  only  an  average  wasting. 

A.  I don’t  agree  to  that. 

Q.  Then  we  will  leave  that  out  of  the  calculation,  — if  you 
don’t  put  it  in.  I don’t  care  whether  you  put  it  in  or  not.  When 
you  talk  about  the  upper  water-shed,  you  say  it  is  equal  to  the 
average.  When  I talk  about  what  comes  down  to  you,  you  say  it 
is  wasted  in  the  meadows. 

A.  I have  not  said  that. 

Q.  I understood  you  to  say  so. 

A.  I believe  I have  not  said  it. 

Q.  I asked  you  for  the  water-shed  of  the  lower  Concord,  and 
you  said  it  was  on  an  average  with  the  rest  of  the  water-sheds. 
Now  you  say  no,  there  is  a wastage  on  the  meadows.  Is  there 
not  a great  wastage  by  evaporation  — a very  great  wastage  ? 

A.  Yes,  sir,  no  doubt  there  is. 

Q.  Do  you  believe  there  is  as  much  water  comes  down  from  the 
upper  Sudbury  river  to  the  Wamesit  dam  as  there  would  be  in 
ordinary  streams,  taking  into  consideration  the  meadows? 

A.  I don’t  believe  that  the  same  water  that  starts  from  the 
upper  Sudbury  - — that  so  large  a proportion  of  the  same  particles 
of  water  that  start  from  the  upper  Sudbury  — gets  to  Wamesit  dam 
as  if  there  were  not  a larger  than  usual  evaporating  surface  between 
the  two. 

Q.  Now  do  you  believe  that  so  large  an  amount  of  water  from 
the  upper  water-shed  goes  to  Wamesit  dam  as  there  would  from 
other  rivers,  such  as  the  Merrimack  and  its  feeders? 

A.  No,  sir. 

Q.  Then  there  is  a loss  of  water.  Now  I return  to  my  question  : 
Why  didn’t  you  tell  us  about  that? 

Mr.  Storrow.  The  question  has  not  been  asked.  I propose  to 
ask  it  of  other  witnesses,  and  have  so  stated. 

Q.  Why  didn’t  you  tell  us  about  that  ? 

A.  It  was  not  asked. 

Q.  You  knew  about  that  all  the  time? 

A.  Certainly  ; but  I was  not  asked. 

Q.  You  knew  that  would  diminish  the  value  of  the  upper  water- 
shed ? 


88 


Essex  Company. 


A.  No,  sir. 

Q.  You  knew  it  would  diminish  its  value  as  a water-shed,  and 
afford  a bar  to  Wamesit  dam? 

A.  No,  sir,  I don’t  know  that  it  would  diminish  it. 

Q.  An  ordinary  water-shed  would  bring  down  more  water  to 
the  Wamesit  dam? 

A.  Do  you  mean  more  than  the  whole  Concord  does  ? 

Q.  Yes,  sir. 

A.  Yes,  sir. 

Q.  It  is  lost  in  the  meadows.  Now  then,  Mr.  Mills,  we  will 
come  back  to  the  other  portion.  Taking  the  wastage  at  Concord 
— assuming  that  it  is  an  ordinary. stream,  and  taking  that  out  — 
do  you  think  that  there  would  be  from  the  water-shed  of  the  Con- 
cord 288  cubic  feet  per  second,  24  hours  in  the  day? 

A.  You  mean  leaving  out  of  the  account  the  wastage? 

Q.  Yes,  sir. 

A.  There  would  not  be  permanently  through  the  summer  288 
cubic  feet  through  the  24  hours  of  the  day. 

Q.  That  is,  the  water-shed  of  the  whole  Concord  would  not 
afford  288  feet  per  second? 

A.  Not  through  the  24  hours  of  the  day. 

Q.  How  much  would  it,  in  your  judgment  ? 

A.  Between  200  and  225.  I should  think  not  much  more  than 
200. 

Q.  For  what  proportion  of  the  year? 

Mr.  Storrow.  What  portion  of  the  year  it  would  furnish  it,  or 
would  exceed  it? 

A.  It  might  be  for  two  or  three  weeks  of  the  year,  during  some 
very  dry  years,  that  it  would  be  less  than  that. 

Q.  200  feet  for  how  long  a time  in  the  year? 

A.  You  would  not  ordinarily  expect  it  for  more  than  eleven 
months. 

Q.  (By  Mr.  Merwin.)  That  would  be  the  minimum,  as  I 
understand  ? 

A.  Yes,  sir,  that  amount  would  be  supplied  for  more  than 
eleven  months  in  the  year,  — 200  cubic  feet  per  second. 

Q.  (By  Gen.  Butler.)  And  you  say  that  it  could  not  be 
depended  upon  for  a permanent  supply  during  the  whole  year  for 
more  than  200  cubic  feet? 

A.  No,  sir,  not  during  the  24  hours,  I should  say, — 200  cubic 
feet  per  second. 

Q.  And  therefore,  if  running  in  a state  of  nature,  you  think  it 
would  be  about  200  cubic  feet? 

A.  That  that  would  be  the  minimum  ; that  that  would  be  the 
permanent  supply  for  the  24  hours. 

Commissioner  Russell.  If  it  were  an  ordinary  stream? 

Gen.  Butler.  Yes,  sir. 

Q.  Now,  do  you  think  the  wastage  of  the  meadows  would  be 
greater  or  less  if  the  stream  were  in  its  natural  state,  and  no 
flowage  back? 

A.  I don’t  quite  understand  your  question. 

Q.  I will  try  to  make  it  so  that  you  can  ; you  say  that  there  is 


II . F.  Mills. 


89 


wastage  through  the  meadows  by  the  flow  and  the  percolation  of 
the  rainfall.  That  stream  you  know  now  has  a dam,  either  natural 
or  artificial.  Do  you  think  that  the  wastage  would  be  greater  in 
the  present  condition  of  the  river  (with  the  reservoir  and  dam),  or 
less,  than  in  case  you  had  the  natural  flow  of  the  stream  coming 
down,  in  a state  of  nature? 

A.  You  speak  of  “ natural  or  artificial  dams.”  I don’t  know  just 
what  you  mean. 

Q.  Now  to  put  the  question  exactly,  so  that  you  will  have  no  diffi- 
culty about  it:  There  are  artificial  dams  on  the  stream,  and  you 
have  seen  them,  I take  it? 

A.  Yes,  sir. 

Q.  I assume  that  those  dams  flow  the  stream  back  more  or  less. 
They  do  somewhat,  don’t  they  ? 

A.  They  do  in  their  immediate  neighborhood,  certainly. 

Q.  Do  you  think  the  wastage  would  be  greater  or  less  in  the 
river  as  it  is  now,  with  those  dams  and  reservoir,  that  it  would  be 
if  the  river  was  in  a state  of  nature,  without  any  dams? 

A.  The  wastage  from  evaporation  would  be  greater  with  dams 
and  reservoir  than  without. 

Q.  Is  there  any  other  wastage  than  mere  evaporation  ? 

A.  If  there  were  not  dams,  there  would  be  wastage  after  each 
storm,  probably.  It  could  not  be  used,  probably,  to  the  same 
extent  that  it  could  with  the  dams. 

Q.  Any  other  wastage  ? Any  wastage  from  the  soakage  into 
the  ground  when  it  is  dry,  so  as  to  take  it  up,  in  the  summer? 

A.  Well,  whether  the  difference  would  be  greater  with  the  dams 
there,  or  without,  is  a local  question  that  I cannot  answer.  It 
would  depend  upon  how  much  the  meadows  were  flowed,  how  low 
the  water  would  stand  without  the  dams  there. 

Q.  Would  there  not  be  a very  large  soakage  outside  of  where 
the  water  flows  from  the  water-shed  in  the  area? 

A.  Yes,  sir. 

Q.  Then  there  would  be  all  the  dry  land  that  was  flowed, 
would  there  not,  in  a state  of  nature? 

A.  No ; I cannot  say  that  the  meadows  would  be  dry  land. 

Q.  Where  it  was  not  flowed,  I suppose? 

A.  No  ; not  necessarily  dry. 

Q.  Not  necessarily,  you  say.  Would  they  take  up  any  water? 

A.  Yes,  sir. 

Q.  Now,  then,  upon  the  whole  can  you  give  me  any  amount  of 
water  which  you  say  from  your  knowledge  you  know  in  a state  of 
nature  would  come  from  the  Sudbury  river,  at  the  city’s  dams, 
down  to  Lawrence,  as  an  effective  water-power,  — about  which  you 
can  say  : “ I know  so  much  would  come,  in  a state  of  nature,  and 
from  my  experience  as  an  engineer  ” ? 

A.  I cannot  tell  how  much  of  that  water  from  the  upper  Sud- 
bury would  reach  Lawrence. 

Q.  Could  you  tell  that  any  would? 

A.  Yes,  sir. 

Q.  In  the  dry  season? 

A.  Yes,  sir. 


90 


Essex  Company. 


Q.  Well,  what  proportion?  How  much? 

A.  Well,  I have  no  question  that  there  is,  after  the  taking  of 
this  water  from  the  upper  Sudbury,  sufficient  water  coming  in  to 
supply  the  evaporation,  and  for  all  wastage  in  the  territorj’-  below, 
so  that  the  cutting  off  of  this  upper  Sudbury  water  would  be  a 
reduction  of  the  quantity  at  Wamesit  dam,  or  at  Lawrence,  by  just 
the  amount  of  the  water  so  cut  off. 

Q.  I suppose  that  is  so.  But  what  I want  to  get  in  is,  “ how 
much  ? ” 

A.  Oh,  the  yield  of  the  upper  Sudbury  is  about  forty  to  fifty- 
five  cubic  feet  per  second  in  a dry  time. 

Q.  (By  Mr.  Storrow.)  That  is  for  the  whole  24  hours? 

A.  Yes,  sir. 

Q.  (By  Gen.  Butler.)  And  by  “ a dry  time”  do  you  mean 
the  ordinary  dry  months  of  the  year? 

A.  Yes,  sir.  That  is,  that  would  be  the  smallest  quantity  that 
would  be  derived  from  that  river. 

Q , Mr.  Storrow,  as  commissioner  of  the  State,  made  some  ex- 
periments there,  didn’t  he,  on  the  Sudbury  ? 

A.  Yes,  sir. 

Q.  Were  you  engaged  with  him? 

A.  I was. 

Q.  How  long  did  you  work  on  those  rivers  ? 

A.  Some  three  months,  I think,  on  the  river  itself,  and  in  office 
work  considerably  longer  than  that. 

Q.  So  that  you  are  quite  familiar  with  the  Sudbury? 

A.  No,  sir.  I was  stationed  at  Billerica  dam,  and  was  not  on 
the  meadows  a great  deal. 

Q.  You  were  stationed  there  three  months? 

A.  Yes,  sir. 

Q.  When  was  that? 

A.  In  1861,  I think. 

Q.  Did  you  measure  the  amount  of  water  running  there  then? 

A.  I think  I did. 

Q.  How  much  did  you  make  it? 

A.  I don’t  remember. 

Q.  Who  has  got  the  measurements  ? 

A.  I don’t  know. 

Q.  Have  you  got  any  details  of  them  ? 

A.  I don’t  think  I have. 

Q.  Were  they  returned  to  Mr.  Storrow? 

A.  I don’t  know  ; I don’t  remember. 

Q.  Whom  were  you  making  them  for? 

A.  There  were  no  measurements  ordered  by  the  commissioners 
at  any  time.  I think  I made  some  measurements  there  on  my  own 
account. 

Q.  Have  }^ou  not  got  some  notes  by  which  you  can  tell  us  what 
those  measurements  were? 

A.  I don’t  know  that  I have. 

Q.  Were  you  there  during  three  months? 

A.  Yes,  sir. 


H.  F.  Mills. 


91 


Q.  Did  you  measure  during  that  time  ? 

A.  I measured  during  that  time. 

Q.  How  long  did  you  measure  ? 

A.  I don’t  know. 

Q.  About  how  long? 

A.  I have  measured  the  height  of  the  water  for  every  hour. 

Q.  How  long  were  you  engaged  in  it? 

A.  I think  some  three  months. 

Q.  Did  you  make  measurements  for  the  purpose  of  ascertaining 
the  supply  of  water? 

A.  I made  measurements  to  see  on  what  days  there  was  about 
the  same  quantity  of  water  running. 

Q.  And  therefore  you  had  to  ascertain  the  quantity  that  was 
running  in  order  to  do  that? 

A.  Yes,  sir. 

Q.  Now,  can  you  tell  me  what  the  average  quantity  was  that 
was  running  there  ? 

A.  No,  sir. 

Q.  Have  you  not  any  remembrance  of  what  those  measurements 
were  ? 

A.  I have  this.  I remember  a reference  in  the  report  to  an 
occasion  when  there  was  about  100  cubic  feet  a second  running. 

Q.  How  much  was  running  at  any  other  time  ? 

A.  I don’t  know. 

Q.  Can  you  give  me  any  other  amount  that  you  remember  was 
running? 

A.  No,  sir,  I don’t  remember  any  other. 

Q.  For  how  long  was  that  running  ? 

A.  I don’t  remember. 

Q.  [Referring  to  book.]  Did  you  see  this  report,  made  to  the 
Legislature  ? 

A.  Is  this  the  report  of  the  Commissioners  ? 

Q.  Yes,  sir,  it  looks  like  it. 

A.  Yes,  sir. 

Q.  Did  you  read  it  at  the  time? 

A.  I suppose  so  ; I think  I did. 

Q.  Did  you  see  any  mistakes  in  it? 

A.  I don’t  remember  any. 

Q.  There  were  none  called  to  your  attention  at  that  time  ? 

A.  No,  sir. 

Q.  The  tables,  too,  — were  they  prepared  by  you  ? 

A.  No,  sir.  I think  I worked  on  them  some. 

Q.  So  as  to  know  whether  they  were  correct  ? 

A.  I don’t  think  they  were  put  into  my  hands  to  test  and  see 
whether  they  were  correct  or  not.  The  tables  are,  as  I remember, 
the  observations  of  the  different  observers  — some  30  or  40  of 
them  — on  the  river. 

Q.  Now,  the  references  in  the  report  were  in  these  words  that 
you  remember,  were  they  not? 

[Reads  from  report.  ] 

“ Of  course,  any  material  diminution  of  the  quantity  of  water 


92 


Essex  Company. 


running  in  the  river  would  further  reduce  its  level  above  the  ford- 
way,— but  such  change  of  level  would  be  due  to  the  lessened 
quantit}7-,  not  to  the  change  at  the  dam.  The  four  days  commented 
upon  above  followed  after  a long-continued  period  of  dry  weather, 
some  of  which  had  been  exceedingly  hot ; and  the  quantity  of 
water  then  running  in  the  river  (there  was  being  discharged  at  the 
dam  about  100  cubic  feet  per  second)  was  probably  not  greater 
than  the  ordinary  summer  flow  of  the  river.” 

That  was  what  you  referred  to? 

A.  Yes,  sir. 

Q.  Station  28  was  at  the  ford  way,  was  it  not? 

A.  I think  it  was  at  the  fordway, — just  a little  above. 

Judge  Abbot.  At  the  ford  way  which  you  called  the  attention  of 
the  Commissioners  to  as  a natural  dam,  just  above  the  artificial  one  ? 

Q.  I wish  you  would  look  for  those  measurements  for  me. 

A.  I don’t  think  I could  find  them ; I don’t  think  I have  them. 

Q.  (By  Mr.  Storrow.)  Have  you  any  figures  to  tell  gener- 
ally about  how  much  of  the  rainfall  of  the  year  gets  into  the 
streams? 

A.  Well,  it  is  the  common  understanding  of  engineers  that 
about  50  per  cent,  of  the  rainfall  of  the  year  gets  into  the  stream 
in  this  part  of  the  world. 

Q.  (By  Gen.  Butler.)  You  mean  in  average  places? 

A.  Yes,  sir. 

Q.  And  how  much  during  the  three  summer  months,  say  July, 
August,  September? 

A.  From  25  to  30  per  cent.  The  New  York  experiments  made 
it  28. 

AFTERNOON  SESSION. 

John  Worcester.  — Sworn . 

Q.  (By  Mr.  Storrow.)  Mr.  Worcester,  state  your  name. 

A.  John  Worcester. 

Q.  Residence? 

A.  Lawrence. 

Q.  Occupation  and  profession? 

A.  Civil  engineer. 

Q.  Are  you  employed  by  the  Essex  Company,  or  not  ? 

A.  I am,  and  have  been  in  its  employ  a little  over  two  years. 

Q.  In  what  capacity? 

A.  First  assistant. 

Q.  To  whom? 

A.  Mr.  Mills. 

Q.  Whether  or  not,  under  Mr.  Mills,  you  have  measured  or 
ascertained  by  computation  from  the  maps  the  areas  of  the  water- 
sheds which  I am  going  to  state  to  you,  namely,  the  whole  water- 
shed of  the  Essex  Company  above  Lawrence,  including  the  Sud- 
bury area,  the  area  of  the  upper  Sudbury  water-shed, — b}T  which  I 
mean  the  water-shed  of  the  Sudbury,  above  the  point  of  diversion 
by  the  city, — and  the  area  of  the  lower  Sudbury, — by  which  I mean 


John  Worcester. 


93 


the  drainage  area  from  that  point  of  diversion  down  to  the  Assabet, — 
and  if  so,  will  you  state  the  results  as  to  size  of  each  area  which 
you  got? 

A.  The  total  drainage  area  of  the  Merrimack  river  above  the 
Essex  Co.’s  dam  is  4,136  square  miles. 

Q.  How  is  the  upper  Sudbury  area? 

A.  72.3  square  miles. 

Q.  The  lower  Sudbury  area? 

A.  62.5  square  miles. 

Q.  Will  you  state  how  you  got  these  areas? 

A.  The  size  in  New  Hampshire  was  obtained  from  Carrigairi’s 
map,  and  the  county  maps,  the  nine  lower  counties  of  New  Hamp- 
shire, and  averaging  the  two  results. 

Q.  And  the  Massachusetts  area? 

A.  The  Massachusetts  areas  are  all  from  Borden’s  and  Walling’s 
State  maps. 

Q.  Now  state  the  process  which  you  pursued  in  getting  the 
areas. 

A.  Drawing  the  line  that  marks  the  different  ways  the  water 
runs  by  taking  a point  half-way  between  the  two  rivers,  the 
sources  of  the  rivers  that  flow  in  the  different  directions,  between 
the  source  of  the  rivers  and  streams  that  run  into  the  Merrimack, 
and  the  sources  of  those  that  run  into  the  Connecticut,  or  the 
Androscoggin,  or  any  other  river  that  runs  away  from  them,  and 
drawing  a line  connecting  these  points  ; take  them  half-way.  If 
the  map  showed  any  mountains  on  it,  in  that  place,  the  line  was 
drawn  over  the  peak  of  the  mountain,  because  that  would  be  the 
only  natural  divergence  of  the  streams  ; then  the  line  having  been 
drawn  round  that  way,  the  area  was  measured  by  dividing  it  up  into 
triangles,  in  the  usual  way  of  measuring  areas. 

Q.  Did  you  measure  the  area  of  the  Concord  river  above  Bil- 
lerica or  the  Wamesit  dam? 

A.  Yes,  sir. 

Q.  Can  you  tell  me  what  you  got  there  above  the  Wamesit 
dam? 

A.  352  square  miles. 

Q.  (By  Mr.  Shattuck.)  Does  that  include  the  Sudbury? 

A.  Yes,  sir. 

Q.  (By  Mr.  Storrow.)  Have  you  got  it  above  the  Billerica 
dam? 

A.  No,  sir. 

Mr.  Butler.  That  is,  not  distinguished. 

Mr.  Storrow.  Yes,  not  distinguished.  He  has  not  got  the 
precise  amount. 

Cross-examination, 

Q.  (By  Mr.  Butler.)  Can  you  tell  me  whose  maps  of  New 
Hampshire  you  used? 

A.  The  State  map  was  Philip  Carrigain’s,  published  in  1816  ; 
the  county  maps  were  made  from  surveys  by  H.  F.  Walling,  and 
Chase,  — they  were  made  by  Walling,  Woodford  and  Chase. 


94 


Essex  Company. 


Q.  Those  were  private  speculations,  I take  it,  and  not  author- 
ized official  maps? 

A.  I believe  not. 

Q.  How  much  did  the  map  of  1816  show  as  to  the  topography 
of  the  country;  what  mountains  were  shown  on  it? 

A.  It  showed  the  prominent  peaks  of  the  White  Mountains, 
and  a great  many  of  the  rivers ; and  mountains  like  Monadnock, 
Moseilauke,  Profile  mountains,  and  the  Uncano.  * 

Q.  It  showed  only  the  prominent  mountains  which  had  names 
known  to  them?* 

A.  Yes.  Well,  there  were  others.  It  gave  a little  topography, 
without  giving  names  of  the  hills. 

Q.  And  your  rule  was,  unless  there  were  mountains  shown,  to 
take  the  dividing  line  where  it  appeared  between  two  rivers? 

A.  Yes,  sir ; take  the  dividing  line  half-way  between  the  sources 
of  two  rivers. 

Q.  Assuming  that  they  were  traced  on  the  map  to  some  common 
peak,  which  furnished  from  one  side  or  the  other  the  water? 

A.  Yes,  sir. 

Q.  How  far  up  did  you  go  in  New  Hampshire? 

A.  To  the  Twin  Mountains  ; they  are  on  the  extreme  northern 
line. 

Q.  To  the  Twin  Mountains  ? 

A.  Yes,  sir  ; at  the  extreme  northern  line. 

Q.  Did  you  include  Fabyan’s  House?  Did  you  go  up  as  high  as 
that? 

A.  I don’t  remember. 

Q.  Do  you  know  how  far  the  head-waters  of  the  Merrimack  are 
from  the  Connecticut? 

A.  No,  sir  ; I do  not. 

Q.  Have  no  memory  about  that?  Don’t  you  know  you  can 
shoot  a rifle-shot  from  the  pond  making  the  head-waters  of  the  one 
into  the  pond  of  the  head-waters  of  the  other  ? 

Mr.  Storrow.  There  is  only  a dividing  line  between  the  two 
water-sheds.  They  are  adjoining  water-sheds.  You  can,  of  course, 
throw  a stone  across  from  one  to  the  other. 

Mr.  Butler.  I take  it  as  the  dividing  line  where  the  water 
flows  each  way. 

Q.  Do  you  not  know  the  fact  that  a great  portion  of  that  map, 
all  the  upper  part  of  New  Hampshire  shown  by  that  map,  was  in 
fact  totally  uninhabited  and  uninhabitable  and  unexplored  ? 

A.  No,  sir  ; I do  not. 

Q.  You  don’t  know  whether  it  was  or  not? 

A.  I know  it  was  inhabited  some  up  there  and  explored. 

Q.  Yes,  some  parts  were  inhabited,  but  a large  portion  of  it  was 
wood  and  forests,  the  original  forests  at  that,  in  1816,  60  years 
ago.  Have  you  got  that  map  that  you  took  the  distances 
from  ? 

A.  I have  it  at  the  office. 

Q.  Here? 

A.  It  is  in  Lawrence. 

Q.  I wish  you  would  bring  it  down  here  to-morrow,  and  come 


John  Worcester. 


95 


with  it : I want  to  see  it  and  ask  you  something  about  it,  if  you 
will? 

A.  Yes,  sir. 

Mr.  Butler.  Will  you  have  it  sent  down,  Mr.  Storrow? 

Mr.  Storrow.  Yes,  sir. 


Re-direct. 

Q.  (By  Mr.  Storrow.)  Did  you,  at  the  same  time  you  took  the 
water-shed  of  the  Merrimack,  above  Lowell,  take  the  water-shed  of 
the  Locks  and  Canal  Company  ? 

A.  I did. 

Q.  And  what  result  did  you  find  from  that  ? 

A.  Excuse  me.  I only  computed  the  Locks  and  Canal  water- 
shed in  New  Hampshire  ; I did  not  separate  it. 

Q.  That  would  be  the  same  as  ours  in  New  Hampshire? 

A.  No,  sir. 

Q.  How  much  did  you  find  for  the  Locks  and  Canals  New  Hamp- 
shire water-shed? 

A.  3,069  square  miles. 

Q.  That  is  their  New  Hampshire  Merrimack-river  water-shed? 

A.  Yes,  sir. 

Q.  That  does  not  include  their  Massachusetts  water-shed,  I 
understood? 

A.  No,  sir. 

Re-Cross . 

Q.  (By  Mr.  Butler.)  Do  you  make  any  difference  in  the 
water-shed  of  the  two  companies  down  to  the  line  where  you 
came,  or  did  you  call  them  the  same  water-shed  ? 

A.  There  are  small  brooks  running  into  the  Merrimack  that  we 
get  between  Lowell  and  Lawrence,  that  rise  in  New  Hampshire,  so 
we  have  about  ninety  odd  miles  more  in  New  Hampshire  than  the 
Locks  and  Canal  Co. 

Q.  What  brooks  are  they? 

A.  I cannot  state  their  names. 

Q.  Brooks  that  rise  in  New  Hampshire? 

A.  Yes,  sir. 

Q,.  What  was  their  water-shed  in  New  Hampshire? 

A.  95.8  square  miles. 

Q.  In  New  Hampshire? 

A.  Yes,  sir. 

Q.  All  those  brooks,  that  is,  belonging  to  the  water-shed  of  the 
Merrimack  above  the  Essex  Co.’s  dam,  and  which  don’t  belong  to 
the  water-shed  above  the  Locks  and  Canal  Co.’s  dam  ? Did  you 
make  any  difference  in  your  computation  between  the  line  of  New 
Hampshire,  or  did  you  take  the  whole  of  the  river  ? 

A.  I took  that  above  the  New  Hampshire  line,  from  the  New 
Hampshire  maps,  and  those  in  the  Massachusetts  line  I took  from 
the  Massachusetts  maps. 

Q.  What  I want  to  get  at  is,  does  that  ninety-five  miles  show 


96 


Essex  Company. 


the  brooks  alone  or  only  the  brooks  that  rise  in  New  Hampshire, 
taking  the  whole  area? 

A.  It  shows  the  area  of  them  in  New  Hampshire. 

Q.  What  is  the  area  of  them  in  Massachusetts  ? 

A.  I don’ t know. 

Q.  That  is,  yon  find  ninety-five  miles  of  such  brooks  in  New 
Hampshire  which  flow  into  the  Merrimack,  and  you  computed  the 
New  Hampshire  water-shed  of  the  brooks,  but  didn’t  compute  the 
Massachusetts  water-shed? 

A.  I obtained  their  Massachusetts  water-shed,  but  it  was  in- 
cluded in  the  whole  of  the  Massachusetts  water-shed  above  the 
Essex  Co.’s  dam. 

Q.  Yes,  and  you  cannot  tell  what  portion? 

A.  No,  sir. 

Charles  S.  Storrow. 

[. Direct  examination  resumed  from  page  68.] 

Q.  (By  Mr.  Storrow.)  Please  to  state  what  led  the  Essex 
Co.  to  make  the  observations  and  measurements,  which  have  been 
presented  by  Mr.  Mills  in  his  tables,  as  to  the  yield  of  the  Merri- 
mack river  at  Lawrence  ? 

A.  It  was  the  object  of  the  greatest  interest  to  us,  of  course, 
to  know  the  value  of  our  water-power,  what  we  could  safely  lease 
permanently,  and  what  we  had  better  retain  in  our  own  hands  to 
use  without  leasing  permanently,  and  for  many  years  before  Mr. 
Mills  came  to  us,  investigations  were  made,  with  the  view  to 
ascertain  that.  Since  he  came  to  us,  they  have  been  made  with 
more  care,  with  more  accuracy  than  ever  before,  because  we  had  a 
more  accurate,  intelligent  and  skilful  observer  in  Mr.  Mills. 

Q.  Whether,  or  not,  you  have  had  knowledge  of  Mr.  Mills’ 
observations  and  experiments  and  measurements  as  he  has  gone 
along,  and  whether,  or  not,  the  methods  employed,  and  the  results 
obtained,  have  been  a matter  of  consultation  and  conference 
between  you  and  him  ? 

A.  They  have  been  constantly  a matter  of  examination  and 
discussion  and  suggestion  from  one  of  us  to  the  other ; he,  being 
the  engineer,  having  it  chiefly  in  charge,  and  I as  the  general 
managers  of  the  affairs  of  the  company,  desiring  that  very  infor- 
mation which  I set  him  to  obtain  ; and  moreover,  as  engineers,  we 
have  frequently  consulted  together ; but  yet  he  has  nothing  to 
learn  from  me. 

Q.  What  can  you  state,  in  your  opinion  as  an  engineer,  as  to 
the  accuracy  and  the  reliability  of  the  tables  he  has  presented, 
showing  the  flow  of  the  river  at  Lawrence,  and  his  deductions 
from  them  as  to  the  amount  of  mill-power  at  Lawrence  ? 

A.  I think  they  are  as  accurate  as  the  nature  of  the  case  will 
allow.  These  very  large  quantities  cannot  be  determined  with 
absolute  mathematical  accuracy ; they  can  be  determined  with 
accuracy  sufficient  for  the  practical  purposes  of  erecting  mills  and 
putting  in  machinery  with  the  prospect  of  using  it  advantageously. 
I should  rely  on  the  estimate  he  has  made,  more  confidently  than 
anything  we  have  hitherto  had  as  regards  the  practical  value  of 


Charles  S.  Storrow. 


97 


our  water-shed,  and  the  amount  available  for  daily  use  at  Law- 
rence. 

Q.  Assuming  that  the  Sudbury  water-shed  is  about  2 per 
cent,  of  the  whole  Essex  Company’s  water-shed,  I want  to  ask 
you  whether  any  measurements  or  observations  at  Lawrence  of  the 
amount  of  water  flowing  there,  even  if  absolutely  accurate,  would 
or  would  not  show  on  any  particular  day  that  that  drainage  so 
diverted  had  been  diverted  from  you  or  was  present  as  it  was  the 
day  before  ? 

A.  The  measurements  by  Mr.  Mills,  made  with  as  great  ac- 
curacy as  it  is  practicable  to  make  them,  show  what  passes  there 
on  any  given  day,  but  where  that  comes  from,  what  shed  may 
deliver  the  most,  and  what  hundredth  part  of  our  sheds  may 
deliver  the  most  or  the  least,  it  is  impossible  to  say.  We  know 
that  certain  water  may  be  started  from  the  New  Hampshire 
reservoirs,  100  or  200  cubic  feet,  and,  of  course,  we  know  it 
comes  — it  is  our  own  — on  a certain  day,  and  the  next  day  and  the 
following  day  the  river  may  be  lowering  from  other  causes  ; and  we 
may  have  water  shut  off,  and  the  next  day  the  river  may  rise.  A 
thousand  causes,  spread  over  these  4,000  or  4,100  and  odd  miles, 
affect  the  absolute  quantity  we  receive,  and  we  cannot  tell  which 
cause  may  add  something  and  which  cause  may  take  off  some  day 
by  day.  I mean  we  cannot  discriminate  the  several  elements 
which  go  to  make  up  the  aggregate  we  receive  there,  and  that 
would  be  the  case  if  we  did  measure  with  mathematical  ac- 
curacy. 

Q.  Now  I will  ask  you  whether,  if  as  it  ordinarily  varies  from  day 
to  day,  or  from  week  to  week,  the  water  not  remaining  the  same, 
the  variation  will  be  equal  to  or  will  exceed  2 per  cent,  of  the 
total ? 

A.  Assuredly.  It  is  very  seldom  the  river  is  constant  2 per 
cent.  It  may  be  so  for  a few  days,  resulting  from  causes  acting 
in  different  directions,  which  may  produce  a constant  effect.  That 
is,  the  result  comes  from  so  many  and  such  various  sources  and 
causes  that  it  is  impossible  to  discriminate  any  particular  one, 
although  we  may  know  that  it  comes  as  an  effect,  to  a certain 
extent,  in  one  direction,  as  the  diversion  and  the  letting  down. 

Mr.  Storrow  here  put  in  to  be  printed  “ C.S.S.  5,”  which  was 
put  in,  on  page  49,  on  Thursday. 

ESSEX  COMPANY. 

SURPLUS  WATER-POWER. AMOUNT  USED,  AND  ITS  VALUE. 


Quarter  ending. 

January  1,  1871 . . 

Average  of  quarter 
actually  used. 
Mill-powers  per  day. 

Amount  received  by  Essex 

April 

1,  “ .. 

Company  for  surplus  water- 

July 

1,  “ .. 

power  in  5 years,  $219,- 

October 

i.  “ •• 

447.00. 

January, 

1872.. 

Average  for  1 year,  $43,- 

April, 

u 

889.40. 

July, 

u 

Average  used,  19.955  mill- 

October, 

a 

13.42 

powers,  or  say  20  mill- 

January, 

, 1873.. 

powers. 

98 


Essex  Company. 


April, 

1873... 

July, 

tl 

October, 

u 

January, 

1874..., 

April, 

u 

July, 

u 

October. 

u 

January, 

1875.... 

April, 

t< 

July, 

u 

October, 

u 

399.11 

z\—  19.955 


20  mill-powers,  at  $2,194 
per  year  = $43,884.  This 
was  actually  received. 

36.57  mill-powers,  at  $1,200 
a year  = $43,884. 

Thus  for  the  five  consecutive 
years  the  Essex  Company 
received  for  surplus  power 
$2,194  per  year  per  mill- 
power  instead  of  $1,200, 
price  of  permanent  power. 

$2,194  is  6 per  cent,  on 
$36,577. 

A mill-power  used  7 months, 
at  the  rate  of  $2,194  per 
year,  gives  $1,280. 

Thus  we  have  received  as 
much  for  a temporary  mill- 
power  used  7 months  as  for 
a permanently-leased  mill- 
power  used  12  months. 


SURPLUS  WATER-POWER. AMOUNT  RECEIVED  BY  THE  ESSEX  COM- 

PANY FOR  ITS  USE. 


January  1, 1871 
April  1,  “ 

July,  1,  “ 

October  1,  “ 

January,  1872 
April,  “ 

July, 

October,  “ 

January,  1873 
April,  “ 

July, 

October,  “ 

January,  1874 
April,  “ 

July, 

October,  “ 

January,  1875 
April,  “ 

July, 

October,  “ 


417,757 

92 

, 11,935 

88 

. 13,606 

24 

, 10,001 

48 

. 9,909 

16 

. 12,358 

28 

, 6,985 

28 

. 6,301 

56 

, 8,616 

72 

. 7,635 

20 

. 6,572 

00 

, 12,372 

88 

, 8,866 

40 

. 9,163 

28 

. 10,725 

12 

. 15,815 

64 

, 12,168 

04 

. 13,004 

80 

. 10,320 

52 

. 15,330 

60 

$53,301  52 


35,554  28 


35,196  80 


44,570  44 


50,823  96 


$219,447  00 
i=  43,889  40 


Charles  S.  Storrow. 


99 


Q.  Now  will  you  produce  a table  of  the  use  of  the  sold  surplus- 
power  which  is  mentioned  in  “ C.S.S.  5,”  discriminating  between 
the  amount  that  you  received  at  $12  per  power,  and  the  amount 
that  you  received  at  $4  ? 

A.  I prepared  such  a paper. 

Commissioner  Rdssell.  It  is  herewith  produced,  marked 
“C.S.S.  6,”  and  entitled  “Surplus-power  at  $12  and  at  $4  per 
day.” 

ESSEX  COMPANY. 


RECEIPTS  FOR  SURPLUS  WATER-POWER. 


January, 

1871 

$4.00 

00 

$12.00. 

$13,256  92 

April, 

u 

68 

8,512 

20 

July, 

u 

68 

9,554 

56 

October 

u 

44 

6,764 

04 

January, 

1872 

24 

6,130 

92 

April, 

(i 

48 

7,927 

80 

July,  • 

u 

20 

4,057 

08 

October, 

u 

96 

3,171 

60 

January, 

1873 

68 

5,123 

04 

April, 

u 

60 

4,848 

60 

July, 

u 

64 

3,933 

36 

October, 

u 

40 

8,085 

48 

January, 

1874 

32 

5,646 

08 

April, 

u 

20 

5,047 

08 

July, 

64 

6,672 

48 

October, 

u 

92 

10,203 

72 

January, 

1875 

44 

8,197 

60 

April, 

u 

88 

8,410 

92 

July, 

a 

76 

6,626 

76 

October, 

tt 

68 

10,294 

92 

$76,981  84  $142,465  16 
76,981  84 


$219,447  00 


Q.  (By  Mr.  Storrow.)  I will  ask  you  whether  recently  you  have 
made  any  change  in  the  price  of  the  $12  power,  and  if  so,  what? 
and  state  your  reasons  for  making  that  change? 

A.  We  have  — 

Mr.  Butler.  I object.  I don’t  think  reasons  extend  to  this 
part  of  the  case. 

Mr.  Storrow.  If  the  question  is  objected  to  I withdraw  it.  I 
desire  it  to  appear  that  the  question  was  asked,  and  not  answered 
because  of  the  objection. 

Q.  Will  you  state  whether,  in  fixing  the  price  for  surplus  powers, 
which  is  named  in  the  regulations  for  the  use  of  surplus  power 
already  put  in  the  case,  you  and  Mr.  Mills  together  made  any 
computations  as  to  the  price  or  cost  of  steam-power  and  what 
relation  you  found  between  the  cost  of  steam-power  and  the  $12  a 


100 


Essex  Company. 


day  for  mill-power  — which  you  found  to  be  the  greater  of  the 
two? 

A.  We  did.  It  was  one  of  the  elements  which  led  us  to  fix  $12, 
and  no  more,  as  the  price  of  that  water-power,  as  we  found  that 
was  decidedly  below  steam.  Without  remembering  exactly  the 
figures,  I think  we  found  steam  to  be  about  $15  where  we  charged 
812,  and  we  desired,  of  course,  that  the  companies  who  had  these 
large  engines  should  use  our  surplus  power  and  pay  for  it,  rather 
than  start  them  ; and  they  have  done  so. 

Q.  Which  mill  is  the  largest  user  of  the  surplus  power? 

A.  It  is  the  largest  mill  in  Lawrence  — the  Pacific  Mills  — by 
far  the  largest  in  quantity. 

Q.  And  how  as  regards  percentage  on  their  permanent  power? 

A.  They  have  used  at  times  more  than  50  per  cent,  excess 
beyond  their  leased  power,  not  unfrequently. 

Q.  Now,  how  about  the  little  mills  at  Lawrence  — the  paper 
mills  and  what  we  call  the  small  mills? 

A.  They  have  varied.  Some  of  the  smaller  mills  have  used  a 
very  much  larger  percentage  — a large  percentage  to  them  as  re- 
gards the  small  amount  of  permanent  power.  There  is  one'  mill  — 
Mr.  Russell’s.  He  owns  one  mill-power,  but  has  more  commonly 
used  two  and  a half  than  anything  else,  but  they  have  frequently 
used  double.  That  is  a large  percentage,  though  the  absolute 
amounts  have  been  small. 

Q.  Does  the  Essex  Company  at  Lawrence  let  power  by  horse- 
power on  their  land,  and  if  so,  where  and  at  what  price? 

A.  We  do.  We  have  erected  on  the  south  canal  a mill,  which 
we  call  the  Union  mill,  at  the  verjr  extremity  of  the  canal,  where 
we  put  in  a wheel  and  shafting  and  don’t  manufacture  ourselves,  but 
let  room  with  the  right  to  draw  power  from  the  shaft  — a mill  of 
considerable  size,  200  feet  by  60. 

Q.  (By  Mr.  Butler.)  When  was  this  done? 

A.  It  was  done  in  the  year  when  those  sales  of  land  we  spoke 
of  were  made,  at  the  same  time  when  Greenbank’s  mill  was  put  up. 

Q.  What  year  was  that? 

A.  1872. 

Mr.  Butler.  I shall  object  to  that. 

Q.  (B}^  Mr.  Storrow.)  What  do  3rou  charge  and  receive  for 
the  power  per  horse-power  per  year  in  addition  to  the  rent  which 
you  charge  and  receive  for  the  room  occupied  by  the  tenant  ? 

Mr.  Butler.  I object,  because  this  was  after  the  act  authoriz- 
ing the  taking  of  the  water  was  passed. 

Q.  (By  Mr.  Storrow.)  My  question  was  what  the  Essex  Com- 
pany charge  and  receive  for  the  power  per  horse-power  per  year,  in 
addition  to  the  rent  which  they  charge  and  receive  for  the 
room  occupied  by  the  tenant? 

A.  We  charge  $75  per  year  for  horse-power,  for  the  right  to 
take  the  power  from  the  shaft  which  we  have  put  in  there,  ex- 
clusive of  the  room  of  course. 

Q.  And  how  does  the  rent  which  you  charge  for  the  room  com- 
pare with  the  cost  of  the  land  and  building  which  is  occupied? 

A.  The  charge  for  room  would  give  us  about  6 per  cent,  on  the 
cost  of  the  structure.  That  is,  we  fixed  it  at  about  that  price,  in- 


Charles  S.  Storrow. 


101 


eluding  land.  No,  I think  it  hardly  would  include  the  whole 
value  of  the  land.  We  have  got  perhaps  the  rent  a little  too 
low.  To  give  you  the  figures,  the  rent  would  be  about  $3,600, 
and  we  laid  out  there  about  $50,000. 

Q.  And  the  land  would  be  worth  about  how  much? 

A.  Well,  at  the  rate  which  we  sell  to  use  the  mill-powers 
the  land  would  come  to  about  12  cents  a foot. 

Q.  And  that  would  be  about  how  much  for  that  land? 

A.  This  mill  occupies  about  300  feet ; about  $9,000. 

Q.  (By  Commissioner  Francis.)  Does  the  $50,000  include 
the  water-wheel  and  shafting? 

A.  It  includes  everything. 

Q.  And  that  would  include  the  power? 

A.  Yes,  sir.  We  didn’t  build  it  for  the  sake  of  a large  interest  out 
of  the  building  of  course,  but  we  meant  to  get  rent  enough  to  pay 
for  that. 

Q.  Will  you  state  now,  assuming  that  the  water-shed  of  the 
lower  Sudbury,  from  the  city  dam  down  to  the  Assabet,  is  62 
square  miles,  whether  that  drainage  area  will  supply  as  much 
water  as  is  lost  by  evaporation  or  wastage  in  that  part  of  the  Sud- 
bury river,  and  the  meadows  which  it  passes  through  in  that  area, 
taking  into  view  the  character  of  the  Sudbury  as  it  is  through  that 
area,  with  the  meadows  which  adjoin  it? 

A.  I have  no  question  at  all  that  that  62  miles  supplies  more 
water  than  is  evaporated  off*  that  62  miles,  or  from  that  62  miles. 
If  it  were  not  so,  we  should  have  at  Concord,  from  a water-shed  of 
135  miles,  less  water  than  we  have  in  the  same  water-shed  from  72 
or  73  miles. 

Q.  If  you  have  made  any  calculations  which  lead  you  to  form 
that  opinion,  I wish  you  would  state  what  they  were,  and  the  results 
of  them  ? 

A.  The  calculations  or  observations  which  lead  me  to  form 
that  opinion  are  these : I find  that  the  Cochituate  water-basin, 
which  I believe  everybody  knows  to  be  not  a particularly  good  one, 
has  never  failed  to  supply  more  than  its  evaporation ; that  is  to 
say,  from  the  table  contained  in  the  city  documents,  there  has 
always  been  a daily  yield,  more  or  less.  I think  the  least  has  been 
four  or  five  million  gallons  a day. 

Q.  (By  Mr.  Butler.)  A daily  what? 

A.  A daily  yield  from  the  water-shed  of  the  Cochituate. 

Q.  (By  Mr.  Storrow.)  Will  you  state  how  the  open  water 
evaporating  surfaces  of  the  Cochituate  basins  compare  with  the 
surfaces  of  the  Sudbury  river,  in  the  lower  Sudbury  area  and  the 
Sudbury  meadows  added  together? 

A.  I believe  that  the  water  surfaces  on  the  Cochituate  basin 
are  larger  in  proportion  to  its  size  than  the  water  surfaces  in  the 
lower  Sudbury  would  be  if  the  meadows  were  called  water 
surfaces. 

Q.  Can  you  state  the  figures?  Give  me,  if  you  can,  the  area  of 
the  Cochituate  water-shed  and  of  the  open  water  surfaces  in  it. 

A.  I am  not  sure  that  I can  state  them  exaetty,  for  I received 
them  from  others. 


102 


Essex  Company. 


Q.  From  Mr.  Worcester? 

A.  From  Mr.  Worcester. 

Q.  State  what  you  received  from  Mr.  Worcester  and  I will 
verify  them  by  him  afterwards.  State  what  the  results  were. 

A.  It  was  the  lower  Sudbury  basin  I was  speaking  of. 

Q.  Have  you  got  the  lower  Sudbury  basin  there?  If  so,  will 
you  state  the  amount  of  exposed  surface  of  the  stream  of  the  Sud- 
bury and  the  meadows  both,  in  that  lower  basin  ? 

Mr.  Butler.  Why  don’t  you  ask  him  down  to  the  Billerica 
dam  ? 

Mr.  Storrow.  I don’t  mean  that.  I will  ask  that  by  and  by. 
I mean  from  the  city  dam  to  the  mouth  of  the  Assabet. 

A.  The  figures  which  I had  were  these,  — I didn’t  make  them 
personally,  — that  of  those  62  miles  of  water-shed  — 

Q.  That  is  the  lower  Sudbury? 

A.  The  lower  Sudbury, — there  were  3.12  miles  of  water  surface, 
including  meadows. 

Q.  Well,  you  mean  by  that  to  include,  do  you,  the  main  channel 
of  the  Sudbury  and  the  meadows  also  ? 

A.  That  was  meant  to  include  the  main  channel  of  the 
Sudbury  and  the  meadows  also,  supposing  these  meadows  were 
covered  with  water. 

Q.  The  whole  amount  of  meadows  is  stated  to  be  4,000  acres? 

A.  In  the  commissioners’  report  it  is  stated  to  be  4,000  acres. 

Q.  From  where  to  where? 

A.  From  Billerica  to  the  upper  end  of  all  the  meadows. 

Q.  And  what  portion  of  it  is  above  the  Assabet  and  what 
below? 

A.  I believe  in  this  report  one-half  was  considered  to  be  above 
the  Assabet  and  one-half  below.  3.12  would  include  the  river  sur- 
face and  one-half  of  these  meadows. 

Q.  That  is,  one-half  of  those  meadows  from  the  city  dam  to  Bil- 
lerica, you  assume  to  represent  the  whole  of  the  meadows  from  the 
city  dam  to  the  Assabet? 

A.  Yes,  sir. 

Q.  Now  can  you  give  me  the  amount  of  exposed  water  surfaces, 
pond  surfaces,  I mean  not  water-courses,  in  the  Cochituate  basin  ? 

A.  On  19.72  square  miles  of  water-shed,  which  is  the  extended 
Cochituate,  1£  square  miles  of  water  surface ; that  is  something 
more  in  proportion  than  in  the  other. 

Q.  You  said  that  the  Essex  Co.,  or  its  proprietors,  bought  all 
their  land  substantially  before  the}'  began  to  do  anything  about 
the  dam  or  creating  the  water-power  ? 

Mr.  Butler.  1 only  want  to  call  your  attention  to  the  fact  that 
this  class  of  examination  is  out  of  order. 

Mr.  Storrow.  This  was  a question  which  was  put  to  the  wit- 
ness on  cross-examination  on  page  66,  which  drew  out  a fact  as  to 
the  affairs  of  this  Company.  Now  1 ask  him  the  reason  for  it : — 

“ Q.  Did  the  Essex  Company  pay  anything  like  one  cent  a foot 
for  any  of  the  land  ? 

A.  Their  original  purchase  was  $300,000,  which  covered  1,800 
to  2,000  acres ; at  a very  high  price,  some  of  it.” 


Charles  S.  Storrow. 


103 


v I now  propose  to  ask  him  why  he  bought  the  land. 

Mr.  Butler.  Well,  you  may  put  that  question. 

A.  It  was  to  make  money  out  of  it. 

Q.  To  make  money  out  of  what  ? 

A.  To  make  money  out  of  both  together,  and  the  land  gave  us 
our  return.  If  we  had  had  no  land,  we  shouldn’t  have  built  any 
dam ; and  if  we  couldn’t  have  built  any  dam,  we  shouldn’t  have 
bought  the  land. 


Cross-Examination . 

Q.  (By  Mr.  Butler.)  What  is  the  capacity  of  the  Winnipiseo- 
gee  lake  to  supply  water  in  a dry  season? 

A.  That  is  a question  I cannot  answer  with  any  precision.  We 
draw  from  it  — 

Q.  I don’t  care  what  you  draw,  for  you  may  not  draw  all  you 
want  to,  or  you  may  draw  a great  deal  more  than  you  want  to. 
What  I want  to  know  is  what  its  capacity  to  supply  water  in  a dry 
season  is?  You  went  into  this  expenditure,  and  you  must  have 
some  idea,  I suppose,  of  how  much  water  you  were  going  to  get 
for  it. 

A.  We  knew  the  supply  would  be  very  large,  and  would  bear  the 
expenditure  of  a large  amount  of  money  ; but  we  had  two  objects 
in  view,  which  were  somewhat  prominently  brought  forward  in  the 
beginning ; one  was  to  secure  a useful  arrangement,  and  the  other 
was  to  prevent  a prejudicial  arrangement  with  the  view  to  black- 
mailing us. 

Q.  That  is,  that  somebody  should  not  keep  back  the  water  and 
let  it  down  when  you  didn’t  want  them  to? 

A.  Precisely  so. 

Q.  And  so  that  you  could  control  it  yourself  ? 

A.  Yes,  sir. 

Q.  That  would  be  more  disastrous  than  to  carry  it  off,  wouldn’t 
it? 

A.  I don’t  think  they  could  hurt  us  by  letting  it  down. 

Q.  Well,  what  do  you  mean  by  blackmailing? 

A.  I mean  by  buying  it  up,  and  finding  it  was  very  useful  and 
coming  down  to  us  and  making  us  pay  a high  price. 

Q.  I hope  you  don’t  call  that  blackmailing,  for  isn’t  that  pre- 
cisely what  the  Essex  Company  do,  — buy  up  a large  amount  of 
water  and  land  and  sell  it  out  at  a very  high  price  ? 

A.  But  to  nobody  who  cannot  use  it  advantageously. 

Q.  How  much  water  did  you  expect  to  utilize  in  a dry  season  ? 
How  many  cubic  feet  do  you  think  you  could  draw  in  a dry  season  ? 
I mean  the  dry  months. 

A.  The  most  we  have  ever  drawn,  I think  — 

Q.  Pardon  me  — 

A.  We  have  drawn  as  much  as  we  could. 

Q.  Well,  then,  tell  me  how  much  you  have  drawn? 

A.  The  most  we  have  drawn,  and  the  most  we  believe  we  could 
draw  and  ought  to  draw,  was  400  feet  a second  for  24  hours. 

Q.  How  long  could  that  draft  be  kept  up  ? 


104 


Essex  Company. 


A.  I cannot  say ; but  not  for  a great  many  days.  Of  course 
that  depends  upon  the  condition  of  the  lake  at  the  time  we  begin 
to  draw,  and  there  have  been  years  when  the  lake  didn’t  fill  up. 

Q.  Assuming  that  the  lake  would  fill  with  winter  snows  and 
spring  rains,  I want  to  get  at  its  capacity,  if  I can.  Suppose  it 
fills  up  to  the  height  of  overflowing,  how  much  is  its  capacity? 
There  is  a gentleman  on  the  commission  who  knows  a great  deal 
better  than  I do,  and  I guess  quite  as  well  as  you  do,  but  it  will 
not  appear  in  the  book,  that  is  the  trouble.  I don’t  care  whether 
it  is  100  gallons  or  100,000.  1 only  want  to  know  what  it  is. 

A.  Of  course  that  is  a matter  which  varies  from  year,  to  year. 

Q.  Well,  I was  supposing  it  was  full.  Suppose  it  fills  up? 

A.  I should  think  it  would  make  a difference  to  us  of  20  or  30 
mill-powers  in  the  course  of  a year.  It  is  a thing  which  varies  so 
much  that  it  is  very  difficult  to  give  an  actual  calculation. 

Q.  What  I want  to  know  is  its  capacity,  not  what  you  want  to 
draw.  How  much  have  you  calculated  you  could  draw  from  it?  Or 
have  you  not  thought  of  that  question  ? 

A.  I have  had  no  figures  in  my  mind  for  twenty  years  on  the 
subject. 

Q.  Now,  sir,  has  not  your  company  raised  that  lake  lately ; 
added  to  it  ? 

A.  No,  sir. 

Q.  Haven’t  you  added  to  the  height? 

A.  I think  not.  I don’t  think  the  dam  has  been  changed  for 
twenty-five  37ears. 

Q.  The  dam  may  not  be  changed,  but  hasn’t  the  height  of  your 
gates  been  changed  ? 

A.  I think  not. 

Q.  Can  you  tell  me  how  many  mill-powers  you  have  sold  on  an 
average  for  the  last  seven  years,  leaving  out  1869  ; say,  from  Octo- 
ber 2d,  1869,  to  to-day? 

A.  Do  you  mean  how  many  we  have  sold,  leaving  out  the  13 
which  we  sold  on  the  north  side? 

Q.  Yes. 

A.  We  have  sold  seven  on  the  south  side. 

Q.  Sold  altogether,  I want  to  get  at  it? 

A.  I may  not  have  got  your  date  correctly.  We  began  to  sell, 
I think  the  first  date  was  in  1866,  of  the  south  side  mill-powers. 

Q.  How  many  have  you  sold  during  the  last  seven  years? 

A.  Without  consulting  my  books,  I think  we  have  sold  four  of 
the  seven  in  the  last  seven  years  following  the  three  preceding, 
not  including  those  on  the  north  side. 

Q.  I mean  from  October  2d  to  date,  So  as  not  to  include  those 
13,  because  these  were  sold  at  one  time? 

A.  Yes,  sir.  We  have  sold  to  new  enterprises  seven  in  the  last 
seven  years.  (Mr.  Butler.  That  is  an  average  of  one  a year.)  That 
was  all  included  in  the  table  which  was  presented. 

Q.  Is  there  a table  here? 

A.  There  was  a table,  not  of  sales  of  water-power,  but  of  sales 
of  land,  and  to  that  was  appended  the  mill-powers  sold. 

Q.  For  some  reason  or  other,  good  or  bad,  or  the  inherent 


Charles  S.  Storrow. 


105 


trouble  of  doing  it,  you  cannot  measure  your  water-power  within 
5 per  cent.,  can  you? 

A.  I think  we  can  measure  it  closer  than  that.  My  friend,  Mr. 
Mills,  is  too  modest  and  too  conscientious  to  do  himself  justice.  I 
think  he  measures  within  3 per  cent. 

Q.  So  that,  if  everything  remained  exactly  the  same,  you  could 
not  tell  by  any  measurement  of  yours,  whether  you  had  Sudbury 
river,  or  had  not? 

A.  We  could  not  tell  with  absolute  certainty.  A measurement 
may  be  above  or  below  the  exact  amount. 

Q.  Well,  then,  either  way,  you  could  not  tell  with  certainty? 

A.  I don’t  think  we  could  swear  with  absolute  certainty  within 
3 per  cent. 

Q.  Let  me  see.  Sudbury  river  is  less  than  2 per  cent.,  upon  any 
idea? 

A.  It  is. 

Q.  Then,  if  the  City  of  Boston,  after  taking  the  water  of  Sud- 
bury river  for  5 years,  should  conclude  not  to  take  it  any  longer, 
and  turn  it  all  in,  and  then  at  the  end  of  5,  3,  or  2 years,  begin 
again  and  take  it,  practically,  by  any  measurement,  or  in  anyway, 
j'ou  could  not  find  out,  except  by  learning  the  fact  from  information, 
whether  you  had  the  water  or  not? 

A.  It  would  be  precisely  like  what  comes  to  us  from  all  other 
sources.  There  wrould  be  2 per  cent,  — a large  quantity  ; but  any 
2 per  cent.,  or  3,  could  be  withdrawn  without  our  knowing  it,  or 
knowing  from  where  it  was  diverted.  Sudbury  river  might  be 
diverted,  and  we  not  know  it.  I would  go  farther.  When  we  go  up 
to  the  lake  and  start  a certain  quantity  of  water  down,  we  know  it 
comes,  because  we  started  it,  but  we  cannot  tell  that  by 
measurement. 

Q.  Then,  in  view  of  the  fact  that  there  is  no  practical  knowledge 
or  measurement  on  that  subject,  would  you  take  the  question  of 
Sudbury-river  loss  or  gain  into  the  question  of  how  much  or  how 
little  water-power  you  would  sell  ? 

A.  Most  assuredly. 

Q.  How  so? 

A.  Because  we  would  take  our  .whole  water-shed  and  its 
yield.  Property  may  be  taken  from  us  without  our  finding  imme- 
diately what  has  been  taken,  if  there  is  a good  deal  of  it. 

Q.  I understand  “ if  there  is  a good  deal ; ” but  I want  to  know 
whether  you  would  practically  take  it  into  the  calculation  ? 

A.  I certainly  should. 

Q.  Whether  you  could  tell  it  was  there  or  not? 

A.  An  addition  to  our  water-shed  which  we  would  consider 
equivalent  to  2 per  cent,  obtained  in  New  Hampshire  or  else- 
where, and  added,  we  should  consider  a valuable  addition,  and,  if 
taken  away,  we  should  consider  it  a reduction. 

Q.  Now,  Mr.  Storrow,  did  you  make  a report  on  the  Concord 
river  ? 

A.  I was  one  of  the  commissioners.  I did  not  write  the 
report. 

Q.  Who  did? 


106 


Essex  Company. 


A.  Mr.  Alvord,  of  Greenfield,  now  dead. 

Q.  But  you  signed  the  report? 

A.  I did. 

Q.  Was  he  an  engineer? 

A.  No,  sir. 

Q.  Then  the  engineering  part  was  entrusted  to  your  care? 

A.  In  part.  Mr.  Shedd  made  more  observations  than  anybody, 
and  had  charge  of  the  surveying  parties. 

Q.  And  your  object  was  to  get  the  Concord  river  as  nearly  in  a 
state  of  nature  as  you  could,  I suppose? 

A.  Our  object  was  simply  this  — to  see  whether  taking  down 
the  water  at  Billerica  substantially  lowered  the  water  of  the  river 
above.  This  was  the  object  to  which  I,  as  an  engineer,  gave  my 
attention,  leaving  all  others  to  take  care  of  themselves. 

Q.  Mr.  Mills  was  acting  there  under  your  direction,  was  he 
not? 

A.  Mr.  Mills  was  placed  there  as  one  of  the  observers.  I think 
there  were  25  or  30  at  various  points. 

Q.  Was  Mr.  Mills  acting  under  your  direction? 

A.  Acting  under  the  general  direction  of  the  commissioners, 
not  mine  particularly. 

Q.  What  was  done  with  the  observations  and  tables  ? 

A.  I presume  they  all  went  to  the  State  House. 

Q.  Do  you  know  what  became  of  the  measurements  of  Mr. 
Mills? 

A.  I don’t  know.  The  calculations  were  mainly  made  in  Mr. 
Sliedd’s  office,  and  the  young  men  were  mainly  employed  by  him. 
Personally,  I neither  employed  nor  paid  a person. 

Q.  Would  not  a measurement  made  at  Billerica  at  that  time, 
under  that  condition,  show  very  nearly  the  natural  run  of  the 
stream,  except  as  it  might  be  affected  by  any  reservoirs  above  the 
Sudbury? 

A.  I don’t  think  it  would.  A measurement  made  there  might 
show  what  was  actually  passing  at  the  moment ; but  to  measure  a 
river  you  want  a long  series  of  observations,  and  you  want  them 
made  with  a view  to  measure.  It  was  no  part  of  our  object  to 
ascertain  what  the  Concord  river  furnished  in  water,  and  I never 
directed,  or  knew  of  any  measurements  made  to  that  end,  although 
I see  some  were  made  slightly  ; one  or  two,  I believe. 

Q.  You  agreed  to  this  report,  did  you  not? 

A.  Certainly.  I signed  the  report,  certain  portions  having 
been  more  particularly  allotted  to  me  to  look  after. 

Q.  This  report  says  [i.  e.,  Report  of  Experiments  and  Observa- 
tions on  the  Concord  and  Sudbury  rivers,  in  the  year  1861]  : 
“ The  quantity  of  water  then  running  in  the  river  (there  was  being 
discharged  at  the  dam  about  one  hundred  cubic  feet  per  second) 
was  probably  not  greater  than  the  ordinary  summer  flow  of  the 
river.” 

A.  That  was  no  observation  made  by  me.  I should  not  have 
refused  to  sign  the  report  with  that  in,  whether  exactly  correct  or 
not.  There  was  one  particular  object  to  which,  as  an  engineer, 
my  attention  was  directed ; that  was,  the  height  of  the  surface  of 
the  river. 


Charles  S.  Storrow. 


107 


Q.  But  to  know  that,  it  was  necessary  to  know  the  amount  of 
water  flowing,  was  it  not? 

A.  No,  sir. 

Q.  On  pages  19  and  20  of  the  report,  the  commissioners  say, 
“ On  the  12th  of  August,  immediately  after  the  observation  taken 
at  5 o’clock,  A.  M.,  greater  openings  were  made  in  the  dam, 
and  the  water  there  was  further  drawn  down.  In  two  hours, 
or  at  7 o’clock,  A.  M.,  it  had  reached  the  level  of  thirty-three 
inches  below  the  top  of  the  dam.  It  was  continued  at  that  level 
as  nearly  as  possible  until  September  5th.  But  in  the  evening  of 
August  12th,  at  about  nine  o’clock,  a very  heavy  rain  commenced, 
continuing  through  that  night,  the  whole  of  the  next  day,  and  a 
part  of  the  succeeding  night.  The  rain-gauge  recorded  a fall 
during  this  time  of  three  inches  of  water.  On  the  13th,  the  river 
began  to  rise,  and  continued  rising  for  several  days.  This,  of 
course,  rendered  it  impossible  to  ascertain  the  effect  of  this  second 
drawing  down  of  the  water  at  the  dam  by  a comparison  of  the 
succeeding  days,  until  the  effect  had  passed  off,  the  rise  due  to  the 
excessive  quantity  had  subsided,  and  the  river  was  again  dis- 
charging about  the  same  quantity  as  on  the  11th. 

“ But  between  the  time  when  this  second  drawing  down  at  the 
dam  began,  and  the  time  when  the  rain  commenced,  was  a period 
of  sixteen  hours.  The  period  was,  of  course,  wholly  unaffected  by 
the  rain  ; nor  can  we  discover  during  this  interval  any  cause  of 
disturbance  on  the  lower  reaches  of  the  river,  except  the  drawing 
down,  nor  anything  to  prevent  the  drawing  down  from  producing 
the  whole  effect  to  be  expected  from  it  on  these  reaches  within 
that  period  of  time.  At  the  time  of  the  first  drawing  down  on  the 
7th  of  August,  a marked  effect  was  seen  at  Station  28  in  half  an 
hour ; in  three  hours  one-third  of  the  whole  effect  had  been  pro- 
duced, and  in  twelve  hours  one-half  of  the  whole  effect  had  been 
produced.” 

Does  not  this  report,  therefore,  show  that  it  was  necessary  to 
take  into  consideration  the  height  of  water  in  the  river  ? 

A.  In  one  sense  it  does,  but  not  the  absolute  quantity.  Our 
observations  went  to  show  what  was  the  effect  of  an  artificial 
change ; and  in  order  to  show  the  effect  of  that  artificial  change, 
we  wished  to  take  the  river  in  a particular  condition  and  make  the 
change,  and  have  no  disturbing  element  come  in  ; and  a large  rain- 
fall (independently  of  what  we  were  doing)  raising  the  river,  no 
matter  what  quantity  was  carried,  of  course  disturbed  our  experi- 
ment, and  we  could  not  trust  to  those  observations  for  the  purposes 
of  our  investigation. 

Q.  Well,  sir,  your  engineer,  for  some  reason,  took  the  absolute 
quantity  flowing,  he  tells  us.  It  would  be  convenient  to  know 
that,  wouldn’t  it? 

A.  It  was  a matter  of  interest.  It  was  never  asked,  never 
ordered  ; but  Mr.  Mills,  being  an  engineer  of  an  inquiring  turn  of 
mind,  would  be  very  likely  to  make  a good  many  investigations. 
It  was  my  first  acquaintance  with  him. 

Q.  Now,  assuming  that  one  hundred  cubic  feet  per  second  is 
not  greater  than  the  average  flow  during  this  summer  (implying 


108 


Essex  Company. 


that  it  was  not  less) , from  the  water-shed  above  Billerica  on  the 
whole  of  Concord  river,  and  assuming  the  Sudbury  river  to  be 
one-fifth  of  that  water-shed,  that  would  give  about  twenty  cubic 
feet  a second,  would  it  not,  down  at  Lawrence? 

A.  One-fifth  of  one  hundred  is  twenty  ; that  is  true  ; but  water- 
sheds are  very  different.  Here  is  a water-shed  coming  down  to 
Billerica,  consisting  of  parts  very  different  in  their  character.  A 
portion  of  that  water-shed  may  be  much  more  productive  than 
another  portion  of  that  water-shed. 

Q.  There  is  only  four  miles  in  extent  between  Billerica  and 
Wamesit  dam. 

A.  Take  the  Wamesit  dam. 

Q.  That  water-shed  has  not  changed  within  a few  years  ; it  is 
about  the  same,  is  it  not? 

A.  I am  not  aware  of  any  change. 

Q.  Then  what  operated  upon  it  in  1861  would  be  likely  to 
operate  upon  it  in  1876? 

A.  I should  presume  so. 

Q.  Then,  if  the  average  flow  from  that  water-shed  was  one-hun- 
dred cubic  feet  per  second  in  the  dry  season,  in  the  summer 
months,  as  found  by  measurement  at  that  time,  and  the  Sudbury 
river  is  one-fifth  of  that,  where  do  you  suppose  the  water  comes 
from,  other  than  that  which  comes  from  the  Lawrence  dam? 

A.  If  the  average  flow  is  one  hundred  cubic  feet  per  second, 
and  if  the  Sudbury  furnishes  one-fifth,  of  course  it  furnishes 
twenty  feet. 

Q.  And  twenty  feet  would  be  two-thirds  of  a mill-power  ? 

A.  That  depends  upon  the  fall. 

Q.  At  your  place,  I mean. 

A.  No,  sir  ; it  might  be  a good  deal  more. 

Q.  It  might  be,  but  you  sell  thirty  feet  for  a mill-power? 

A.  Thirty  feet,  with  twenty-five  feet  fall.  In  summer,  when 
there  is  thirty  feet  fall,  it  is  less  than  thirty. 

Q.  We  won’t  go  into  the  height  of  the  fall.  When  the  Pacific 
Mills  have  to  run  their  engine  because  the  water  is  so  high,  it 
takes  a good  deal  more,  so  leave  out  those  matters.  That  would 
be,  as  you  sell  it,  about  two-thirds  of  a mill-power.  Now,  do  you 
think  that  that  would  be  at  all  appreciable  at  Lawrence,  in  any 
way,  whether  it  was  there  or  not? 

A.  It  is  more  than  two-thirds  of  a mill-power ; but  leaving  that 
out  of  consideration,  I don’t  think  we  could  tell  at  Lawrence 
whether  twenty  cubic  feet  per  second,  more  or  less,  was  coming 
bj'  our  observations. 

Q.  Or  in  any  way? 

A.  No,  I don’t  think  we  could.  We  could  be  sure  that  it  did 
come. 

Q.  You  would  not  alter  your  price  of  land,  and  sell  it  for  less 
on  account  of  knowing  that  there  was  twenty  cubic  feet  less  of 
water  coming ; or  ask  more  for  it  if  you  knew  that  twenty  cubic 
feet  more  of  water  was  coming? 

A.  That  is  coming  down  to  a pretty  fine  point.  I don’t  know 
where  we  should  pull  the  last  hair  out  of  the  horse’s  tail. 


Charles  J.  Frost. 


109 


Charles  J.  Frost.  — Sworn. 

Q.  (By  Mr.  Storrow).  State  your  name,  age,  residence,  and 
occupation. 

A.  Charles  J.  Frost ; Framingham  ; engineer,  at  present ; 56. 

Q.  How  long  have  you  lived  in  Framingham? 

A.  Since  I went  there  last,  twenty  years.  I was  born  there. 

Q.  State  whether,  or  not,  you  have  made  recently,  at  my 
request,  an  examination  of  Sudbury  river  from  the  city  dam  down 
to  the  mouth  of  the  Assabet,  with  a view  of  ascertaining  whether 
there  is  any  current  in  the  river,  and  any  water  in  the  river  chan- 
nel ; and  if  so,  state  what  you  did,  and  the  result  of  your  observa- 
tions ? 

A.  I didn’t  start  from  the  city  dam.  I started  from  below 
Saxonville,  and  followed  the  Sudbury  to  the  mouth  of  the 
Assabet. 

Q.  Will  you  state  by  reference  to  the  map  now  exhibited, 
which  is  the  map  in  the  report  of  the  Sudbury-meadow  commis- 
sioners, where  you  went  on  the  river,  and  what  you  did  when  you 
went  down? 

A.  1 started  at  Stone’s  bridge  in  Framingham,  a little  way 
above  the  Beaver-hole  meadow.  I took  a boat  at  that  point. 

Q.  Any  one  with  you,  or  did  you  go  alone? 

A.  I had  a man  to  row  me.  I started  from  there  and  went  to 
Concord.  I started  at  Stone’s  bridge  at  7 o’clock  in  the  morning, 
day  before  yesterday.  About  half  a mile  below,  at  Weir’s  hole, 
there  was  a very  perceptible  current.  That,  by  the  way,  was  my 
object,  to  find  if  there  was  a current,  and  how  much.  At  Beaver 
hole  [Station  1,  on  the  Concord  and  Sudbury  Commissioners’ 
plan]  I measured  the  current,  and  it  was  twenty  feet  in  seven 
and  a-half  minutes.  The  bank  at  this  point  was  three  feet  above 
the  surface  of  the  water.  At  half-past  8,  I was  at  the  first  bridge 
[Farm  bridge],  in  Way  land  [Station  2].  The  current  there  was 
twenty  feet  in  two  minutes.  The  width  of  the  stream  to  this 
point,  from  where  I started,  would  vary  from  three  to  four  and 
a-half  rods ; perhaps  at  the  widest  place,  five.  At  Bridle  bridge, 
quarter  before  9 o’clock  in  the  morning  [Station  3],  the  current 
was  twenty  feet  in  five  minutes.  At  a quarter  after  9 o’clock,  at 
the  lower  bridge  [Canal  Bridge]  Wayland.  the  current  was  twenty 
feet  in  one  minute.  At  quarter  after  10  o’clock  in  the  morning,  I 
was  at  Sherman’s  bridge  [between  Station  7 and  8],  current 
twenty  feet  in  three  minutes;  at  half-past  11,  at  Lee’s  bridge 
[just  below  Station  12],  that  is  very  near  the  entrance  of  Fair- 
haven  pond.  Here  the  wind  carried  the  float  up  stream.  A 
little  below  this  there  was  no  perceptible  current,  and  I will  say, 
that  during  the  whole  time  of  making  the  calculations  the  wind  was 
against  me.  If  it  had  any  effect  at  all,  it  would  be  to  carry  the 
float  up  stream. 

Q.  About  how  wide  was  the  stream  there? 

A.  I should  judge  thirty  rods  ; one  hundred  and  twenty-five  or 
one  hundred  and  thirty  feet. 


110 


Essex  Company. 


Q.  How  deep? 

A.  Without  measuring,  the  water  was  very  deep  ; I should  say 
from  ten  to  fifteen  feet.  Twenty  minutes  after  12,  I was  at  Heath’s 
bridge  [Nine-Acre  Corner  bridge];  distance,  twenty  feet;  time, 
ten  minutes. 

Mr.  Storrow.  It  will  not  stop  to  ask  the  witness  about  depths. 
They  are  well  shown  on  the  very  accurate  profile  in  the  Sudbury- 
meadows  report,  and  the  commissioners  will  see  that  the  stream  is 
very  wide  and  very  deep  at  those  points  where  a very  slack  current 
was  found. 

Q.  What  was  the  width  of  the  stream  there  ? 

A.  The  stream  here  was  one  hundred  and  twenty-five  or  one 
hundred  and  thirty  feet  wide,  I should  judge.  At  twenty 
minutes  after  1,  I was  at  Turnpike  bridge  [between  Stations  15  and 
16],  very  near  the  entrance  to  the  Assabet.  The  current  there  was 
twenty  feet  in  six  minutes.  That  was  the  end  of  my  journey. 

Cross-examination . 

Q.  (By  Mr.  Butler.)  What  did  you  use  for  a float? 

A.  I took  a hard-wood  stick,  about  fourteen  inches  long,  and 
loaded  one  end. 

Q.  How  thick  ? 

A.  It  was  about  an  inch  in  diameter.  I loaded  one  end,  so  that 
the  top  would  just  come  above  the  water,  so  that  I could  see  where 
it  was. 

Q.  When  you  got  down  to  those  places,  the  wind  had  its  effect, 
not  upon  the  float,  but  upon  the  current,  so  as  to  set  the  current 
the  other  way  ? 

A.  At  one  point.  It  was  around  a curve.  There  was  a high 
bluff  just  above,  and  the  wind  set  in  very  strongly.  It  was  so  near 
Fairhaven  bay,  that  if  it  hadn’t  been  that  Fairhaven  bay  was 
around  the  corner,  I should  have  thought  I was  in.Fairhaven  bay. 

Q.  At  whose  request  did  you  make  these  investigations  ? 

A.  At  Mr.  Storrow’s. 

Q.  Where  did  you  start  from  that  morning  before  you  went  on 
the  river? 

A.  I started  from  home. 

Q.  Do  you  know  whether  Simpson’s  Mills  were  running? 

A.  I think  they  were  not  running,  although  they  might  be  run- 
ning. I will  tell  you  an  observation,  if  that  will  be  to  any  point, 
that  a man  made  on  the  stream, — a man  who  knew  all  about  it.  He 
said,  if  the  mills  were  running,  it  would  make  a difference.  He 
seemed  to  understand  that  there  was  no  water  coming  down. 

Q.  Who  made  this  observation  ? 

A.  The  man  who  was  rowing  me. 

Q.  He  didn’t  say  an}rthing  as  to  whether  he  knew  that  the  mills 
were  running  or  not? 

A.  No,  sir  ; the  water  could  not  have  got  there  at  that  time  in 
the  morning. 

Q.  Unless  they  had  been  running  at  night  or  were  discharging 
water  ? 

A.  No,  sir. 


Charles  J.  Frost. 


Ill 


Q.  Do  you  live  near  Sudbury  ? 

A.  Dam  1 is  on  my  land. 

Q.  So  that  you  have  known  the  Sudbury  for  a great  many 
years  ? 

A.  Yes,  sir. 

Q.  Have  you  ever  been  up  at  the  head  of  it? 

A.  I have  been  up  to  the  Cedar  swamp ; that,  as  I suppose,  is 
the  source  of  it. 

Q.  How  many  miles  up  is  that  from  the  city  dam,  by  the  course 
of  the  river,  in  your  best  judgment? 

A.  It  is  near  the  centre  of  Westboro’ ; I should  judge  from 
twelve  to  fourteen  miles. 

Q.  What  is  the  first  mill  on  that  stream  ? 

A.  Cutler’s. 

Q.  What  mill  is  that? 

A.  It  is  a grist-mill  and  emery-mill. 

Q.  I am  starting  from  the  swamp  ? 

A.  I don’t  know ; there  was  a small  mill  there,  but  whose  it 
was,  and  what  it  was,  I don’t  know. 

Q.  There  is  a small  mill  at  the  swamp,  where  it  commences  ? 

A.  A little  below. 

Q.  What  is  the  next  mill  ? 

A.  Cordaville. 

Q.  Are  you  acquainted  with  that  mill  ? 

A.  Not  very  much. 

Q.  How  large  a business  is  carried  on  there  ? 

A.  That  I can’t  state. 

Q.  Quite  a large  establishment,  is  it  not? 

A.  I should  judge  not  very  large. 

Q.  How  would  it  compare  with  Simpson’s? 

A.  It  wouldn’t  compare  at  all ; the  comparison  would  be  too 
small  to  make. 

Q.  How  large  a flowage  pond  have  they  got  there  ? 

A.  The  last  time  I saw  it,  it  was  a very  small  pond. 

Q.  Well,  how  large  do  they  have  generally? 

A.  Oh,  it  might  cover  eight  acres. 

Q.  Where  the  next,  sir  ? 

A.  The  next  is,  I think,  at  Ashland, — the  Dwight  Mills. 

Q.  Isn’t  there  one  above  the  Dwight  Mills? 

A.  I think  not. 

Q.  How  far  is  Cordaville  from  the  Dwight  Mills? 

A.  I couldn’t  answer  correctly,  sir  ; but  I should  judge  it  might 
be  four  miles. 

Q.  Is  there  not  a mill  right  in  sight  that  was  pointed  out  to  us? 
A.  There  is  a little  grist-mill,  perhaps  half  a mile  above. 

Q.  Then  we  come  to  the  Ashland  pond ; then  we  come  to  the 
Emery  Works  ; then  we  come  to  Cutler’s,  and  then  we  strike  the 
dam  of  the  city? 

A.  Yes,  sir. 

Q.  Isn’t  there  a stream  enters  into  that  that  has  a reservoir  on 
it? 

A.  You  mean,  that  they  are  going  to  build  a reservoir  on? 


112 


Essex  Company. 


Q.  No ; isn’t  there  a stream  that  they  have  built  a reservoir  on, 
3'ears  ago? 

A.  Oh,  yes,  sir. 

Q.  What  is  that? 

A.  Ston}'  brook  comes  into  Sudbury  river,  just  above  the  dam 
which  is  to  be  built,  and  there  are  two  or  three  mill  reservoirs  on 
that  brook. 

Q.  Now,  going  up  that  brook,  what  is  the  first  mill  on  Stony 
brook,  starting  from  Sudbury  river? 

A.  The  first  mill  is  a little  machine-shop  ; there  is  nothing  done 
there.  There  are  the  ruins  of  a dam  there. 

Q.  How  long  has, that  been  in  ruins? 

A.  There  has  been  nothing  done  there  these  ten  years  ; nothing 
to  speak  of ; there  might  be  a little. 

Q.  What  is  the  next  above  that? 

A.  The  next  above  that  is  a grist-mill. 

Q.  How  large  a pond  do  they  flow  ? 

A.  They  have  a small  pond  of  four  or  five  acres. 

Q.  What  is  the  next  above  that? 

A.  The  next  above  that  is  Rice’s  grist-mill. 

Q.  How  large  a pond  do  they  have  ? 

A.  I am  giving  all  these  estimates  from  guess-work.  I should 
judge  he  might  have  a pond  there  of  ten  acres. 

Q.  What  next  above  that? 

A.  I don’t  know  anything  about  the  mills  above  that. 

Q.  There  are  some  ? 

A.  There  are  some. 

Q.  Isn’t  there  a reservoir  still  further  up? 

A.  I think  there  is;  there  is  another  mill  up  there  — two  or 
three  of  them. 

Q.  Isn’t  there  a reservoir  up  there  that  was  built  by  the  city 
a number  of  years  ago  ? 

A.  I don’t  know. 

Q.  Now,  about  this  swamp  up  on  the  Sudbury  that  you  talk 
about  — wasn’t  that  where  the  city  built  a reservoir  once  ? 

A.  No,  sir  ; I shouldn’t  say  there  was  ever  a reservoir  there  — 
anything  more  than  a natural  reservoir. 

Q.  Let  us  see  ; do  you  know  where  the  Hopkinton  reservoir  is? 

A.  The  Hopkinton  reservoir  is  above  that,  — that  is  some  four 
miles  from  this  swamp,  — that  empties  into  this  swamp ; simply 
feeds  this  swamp. 

Q.  Were  you  ever  up  to  the  Hopkinton  reservoir? 

A.  No,  sir,  I never  was. 

Q.  You  know  there  is  a reservoir  there? 

A.  I know  there  is  a pond  there  ; that  is,  I believe  there  is. 

Q.  How  large  it  is  you  don’t  know  ? 

A.  No,  sir,  not  very  large. 

Q.  What  makes  you  think  it  is  not  very  large? 

A.  I have  seen  a plan  of  it,  and  comparing  it  with  ponds  drawn 
upon  the  same  scale  that  I have  seen,  I should  judge  that  it  wasn’t 
a very  large  pond. 

Q.  Do  you  know  how  many  feet  it  falls  ? 


Charles  J.  Frost. 


113 


A.  No,  sir. 

Q.  Forty? 

A.  I don’t  know  anything  about  it. 

Q.  Did  not  the  plan  tell  you? 

A.  No,  sir.  I might  have  seen  it  on  some  geographical  map  ; 
no  scientific  map. 

Re-direct. 

Q.  (By  Mr.  Storrow.)  Whether  the  city  of  Boston  were  di- 
verting all  the  water  at  their  dam  on  Monday  and  Tuesday  of  this 
week,  except  a million  and  a half  gallons  a day  ? 

A.  They  were. 

Mr.  Storrow  (to  Mr.  Butler).  Do  you  admit  that  the  city 
actually  diverted  the  water  from  their  dam  at  the  time  stated  by 
Mr.  Davis  in  bis  report  of  last  year,  page  16? 

Mr.  Butler.  I don’t  think  I will  make  any  admissions. 

Q.  Can  you  tell  me  whether  the  city  of  Boston  diverted  the 
water  of  the  Sudbury  river  and  stopped  it  from  their  dam,  and 
from  flowing  down,  at  any  time  during  the  year  1875? 

A.  They  did. 

Q.  When? 

A.  During  part  of  the  months  of  July  and  August. 

Q.  Did  you  have  any  occasion  to  notice  it  at  that  time,  and  did 
you  notice  it  particularly  ? 

A.  Yes,  sir. 

Q.  Have  they  done  it  since  then? 

A.  Yes,  sir. 

Q.  How  long  have  they  been  doing  it  lately,  — do  you  remem- 
ber? 

A.  I don’t  know  just  how  long.  We  have  been  dammed  and  re- 
dammed so  much  this  summer,  that  I hardly  remember  the  thing  ; 
but  I should  think  it  was  shut  off  the  last  two  months  most  of  the 
time. 

Q.  How  early  in  1875  do  you  know  of  any  diversion  by  the 
city? 

A.  I don’t  know  how  early  ; I don’t  know  any  earlier  than  July. 
That  is  all  I know  about  it.  I had  no  occasion  to  take  notes  of  it. 


Re-cross. 

Q.  (By  Mr.  Butler.)  This  water  was  running  down  in  the  old 
conduit  or  old  ditch  that  was  built  by  the  Water  Board  in  1872,  was 
it  not  ? 

A.  Built  or  dug  out. 

Q.  They  planked  it  some  portion  of  the  way,  did  they  not? 

A.  Not  that  I know  of. 

Q.  (By  Commissioner  Francis.)  That  planking  that  you  speak 
of  was  from  Farm  pond  ? 

A.  I don’t  know  that  there  was  any  planking.  The  channel  is 
from  Farm  pond,  on  Sudbury  river. 

[Adjourned  to  Friday , Sept.  15,  at  9J-  o’clock.'] 


114 


Essex  Company. 


Friday,  Sept.  15,  1876. 

Mr.  Storrow.  Before  we  go  on,  I want  to  have  it  appear 
on  the  record,  if  the  commissioners  please,  that  last  week 
you,  in  company  with  counsel  for  all  the  parties  and  the 
City  Engineer,  had  a view  of  the  premises  of  all  the  peti- 
tioners— Saxonville,  Ashland,  City  Dam,  the  place  of 
taking,  Billerica,  Wamesit  Power  Company  and  the  mills 
on  that  privilege,  the  Massic  Falls,  the  Middlesex  Com- 
pany’s Dam,  where  the  lower  Belvidere  Mill  is,  and  the  Essex 
Company’s  works  at  Lawrence. 


John  Worcester,  recalled. 

Q.  (By  Mr.  Storrow.)  Mr.  Worcester,  can  you  give  us  the 
area  of  the  Cochituate  water-shed? 

A.  These  figures  are  taken  from  City  Document  No.  85,  of  the 
year  1874,  Appendix  A,  p.  46.  The  water-shed  of  Lake  Cochitu- 
ate, including  Dug  pond,  is  12,077  acres. 

Q.  Give  it  in  miles,  please  ; I don’t  care  about  the  acres. 

A.  I have  the  whole  in  miles  — Dudley  pond  is  added — 19.72 
square  miles. 

Q.  Have  you  got  Dug  pond  and  Dudley  pond  separate? 

A.  I have  Dudley  pond  separate. 

Q.  How  much  is  Dudley  pond  alone? 

A.  544  acres. 

Q.  You  have  not  Dug  pond? 

A.  No,  sir. 

Q.  Now,  I want  the  amount  of  open  water  surface  in  ponds. 

A.  The  amount  of  open  water  surface  in  a dry  year  is  given  in 
the  same  place  as  800  acres,  which  is  1.25  square  miles. 

Q.  Now,  the  lower  Sudbury  drainage  area  between  the  city 
dam  and  the  mouth  of  the  Assabet? 

A.  The  lower  Sudbur}'  drainage  area,  estimated  from  Borden’s 
State  map,  is  62.5  square  miles. 

Q.  Now,  the  surface  of  the  Sudbury  river  within  that  area  and 
the  surface  of  meadows  adjoining  also  make  how  much? 

A.  The  surface  of  the  river  is  0.43  of  a square  mile.  As  the 
Sudbury  meadows’  report  gives  4,000  acres  of  wet  meadows  between 
Billerica  and  Saxonville,  and  the  plan  shows  that  about  half  of 
that  was  included  in  this  area  between  the  Assabet  and  Saxon- 
ville, I took  them  as  2,000  acres,  or  3.12  square  miles,  making  a 
total  of  3.55  sqare  miles  of  wet  surface. 

Q.  Now,  have  you  got  the  other  pond  surfaces  in  that  area, 
apart  from  the  river  and  meadows  — say,  Heard’s  pond  and  some 
of  those  larger  ponds  ? 

A.  Heard’s  pond,  0.13  of  a square  mile. 


John  Worcester. 


115 


Q.  Have  you  any  other  pond  surface  ? 

A.  Some  small  ponds  around  there,  and  a small  piece  of  the 
Sudbury  above  the  Saxonville  dam,  amount  to  0.51  of  a square 
mile. 


Cross-examination . 

Q.  (By  Mr.  Butler.)  This  State  map  of  New  Hampshire, 
which  you  have  brought  here  this  morning  at  my  request,  is  the 
map  that  you  took  the  water-shed  from,  is  it  not? 

A.  It  is  one  of  the  maps  I used  in  estimating  the  water-shed. 

Q.  It  is  the  map  you  spoke  of  yesterday  as  the  State  map? 

A.  Yes,  sir. 

Q.  Did  you  have  any  other  State  map? 

A.  No,  sir,  not  of  New  Hampshire. 

Mr.  Butler.  All  that  appears  on  this  map  by  way  of  authenti- 
cation is  this : — “ To  His  Excellency,  John  Taylor  Gilman, 
Esquire,  and  to  the  honorable,  the  Legislature  of  the  State  of  New 
Hampshire.  This  map,  commenced  under  their  auspices  and 
matured  by  their  patronage,  is  most  respectfully  inscribed  by  their 
obliged  servant,  Philip  Carrigain.” 

Witness  : There  is  something  else  [indicating]. 

Mr.  Butler  [reading].  “New  Hampshire,  by  recent  survey, 
made  under  supreme  authority,  and  published  according  to  law  by 
Philip  Carrigain,  counsellor-at-law,  and  late  Secretary  of  State.” 
The  date  is  “ Concord,  A.D.  1816.” 

Q.  Now  show  me  where  you  began  your  water-shed  on  the  Mer- 
rimack river  on  this  map. 

A.  This  line  here  in  pencil  shows  the  line  that  I have  taken  as 
the  line  dividing  the  drainage  area  on  this  map. 

Q.  Here,  for  instance,  you  carry  it  half  way  between  Smith’s 
pond  and  Pine  pond  ? 

A.  There  is  a brook  to  Pine  pond,  which,  I think,  you  will  find 
is  about  half  way. 

Q.  Then  you  assume  there  is  no  brook  in  Smith’s  pond? 

A.  There  is  none  given  on  the  plan. 

Q . Then  you  came  down  here  between  those  lakes, — between 
Merry  Meeting  pond  and  the  pond  in  New  Durham  without  a 
name ; then  down  to  the  Suncook  pond ; then  you  came  to 
Pleasant  pond,  in  Northwood,  and  Saddle-Back  mountain  ; then 
you  assume  all  the  drainage  in  the  upper  part  of  Deerfield  to  flow 
into  Lamprey  river. 

A.  I took  it  about  half  way  between  Lamprey  river  and  Sun- 
cook. 

Q.  Now,  the  county  maps.  What  was  the  difference  in  the 
area  that  you  made  by  the  county  maps  from  this  map  ? 

Commissioner  Francis.  Has  he  stated  what  he  made  it  by  this 
map  ? 

Mr.  Butler.  Yes,  sir. 

Witness.  No,  sir  ; only  the  average. 

Q.  How  did  you  get  it  by  this  map  ? 

A.  By  Carrigain’s  map,  2,943  square  miles. 


116 


Essex  Company. 


Q.  How  by  the  other  maps  ? 

A.  By  the  county  maps,  3,386  square  miles. 

Q.  How  late  were  the  county  maps  made? 

A.  I think  they  were  made  between  1850  and  1860.  There 
may  be  some  with  the  date  1861  on  them. 

Q.  Do  those  claim  to  be  from  actual  surveys  ? 

A.  Yes,  sir. 

Q.  Then,  in  giving  us  the  amount  of  area,  you  took  the  mean 
between  the  two,  assuming  that  this  map  of  1816  was  as  likely  to 
be  correct  as  the  county  maps  ? 

A.  Yes,  sir. 

Q.  A portion  of  this  land  covered  by  your  water-shed  turns  out 
to  be  ungranted  territory? 

A.  Yes,  sir. 

Q.  And  in  the  Moosehillock  branch  of  the  Merrimac  river,  I 
observe,  you  do  not  go  out  to  the  divide  between  the  two  rivers  ? 

A.  No,  sir. 

Q.  Why  not? 

A.  Well,  it  is  very  nearly. 

Q.  It  runs  across  one  of  them,  and  there  they  divide,  don’t 
they? 

A.  And  then  it  runs  across  the  point  of  the  other. 

Q.  What  point? 

A.  That  river,  the  Amonoosuc,  runs  right  down  on  the  line, 
just  about  as  much  as  the  other.  I think  it  is  a fair  division. 

Mr.  Butler.  I want  the  commissioners  to  examine  this  map. 
They  will  see  that  it  is  utterly  impossible  to  get  at  the  water-shed 
with  any  accuracy.  We  all  know  that  these  early  maps  were  not 
made  to  determine  such  questions,  but  merely  to  get  at  the  sur- 
veys of  land. 

C.  S.  Storrow,  recalled . 

The  witness  produced  the  following  table,  called  for  by  Mr. 
Butler  [marked  u C.S.S.  6 ”]  : — 


Mill-powers  granted  by  Essex  Company. 


Mill- 

powers. 

Per  Mill-power. 

Rent. 

Atlantic  Cotton  Mills  . 

1846 

April  16 

14 

$9,336  cash 

$300  gold 

Bay  State  Mills  .... 

*• 

8 

9,336 

300  “ 

George  Naylor  .... 

1852 

June  10 

0 1-6 

900 

Lawrence  Machine  Shop 

1853 

Jan.  15 

2 

Included  in  sale  of  mill  and 
other  property 

300  gold 

A.  & A.  Norton  .... 

April  5 

1 

In  special  bargain 

450 

Lawrence  Duck  Co.  . . 

May  1 

2 

Included  in  sale  of  mill  .... 

300  gold 

Pacific  Mills 

a 

Sept.  1 

10 

$9,336  cash 

300  “ 

Pemberton  Mills  . . . 

Oct.  21 

5 

Included  in  contracts  for  mill  . 

300  “ 

Bay  State  Mills  .... 

1854 

Jan.  2 

3 

$5,752  cash  (special  bargain)  . 

300  “ 

William  Russell  .... 

u 

Feb.  1 

0 4-6 

900 

Atlantic  Cotton  Mills  . 

Feb.  4 

2 

$9,336  cash . 

300  gold 

Lawrence  Paper  Co.  . 

Aug.  1 

2 

Included  with  building  and 
machinery 

450 

S.  S.  Crocker 

ii 

Nov.  1 

0 5-6 

900 

Pemberton  Mill  .... 

1855 

Jan.  1 

1 

Included  in  previous  contract  . 

300  gold 

Furness  & Giles  .... 

u 

June  11 

0 1-6 

900 

Benjamin  E.  Hoyt . . . 

“ 

Oct.  10 

0 2-6 

900 

C.  S.  Storrow, 


117 


Mill-powers  granted  by  Essex  Company.  — Continued . 


Mill- 

powers. 

Per  Mill-power. 

Rent. 

Russell  & Moses  .... 

1856 

Jan. 

10 

0 3-6 

900 

Pacific  Mills 

4k 

Feb. 

20 

2 

Included  in  contract  for  work 

and  land 

300  gold 

Greenough  & Sargent  . 

1858 

Oct. 

5 

0 2-6 

900 

Washington  Mills  . . . 

1859 

Aug. 

1 

1 

$5,752  cash,  as  before  for  3 . . 

300  gold 

Everett  Mills 

1860 

Mar. 

26 

8 

Included  in  sale  of  Machine 

Shop 

300  ** 

Pacific  Mills 

“ 

May 

15 

15 

$5,000  cash 

9,336  

300  “ 
300  “ 

Pacific  Mills 

1861 

Mar. 

1 

7 

9,336  

300  “ 

Atlantic  Cotton  Mills  . 

44 

4 

9,336  

300  “ 

Lawrence  Duck  Co.  . . 

44 

44 

1 

9,336  

300  “ 

E.  & G.  E.  Davis  . . . 

1862 

Nov. 

20 

0 3-12 

900 

Washington  Mills  . . . 

“ 

Nov. 

28 

4 

$9,336  

300  gold 

Stedman  & Fuller  . . . 

1863 

Jan. 

12 

0 2-6 

900 

Battles  & Crombie  . . . 

44 

Feb. 

28 

0 2-6 

900 

Perry  & Wendell  . . . 

“ 

April  22 

1 

$9,336  C££h 

300  gold 

Battles  & Crombie  . . . 

44 

Oct. 

12 

0 1-6 

900 

Pemberton  Co 

1864 

Mar. 

1 

5 

$9,336  cash • . . 

300  gold 

Pacific  Mills 

4 4 

Mar. 

15 

6 

f Sold  in  connection  with  Cen- 1 
1 tral  Mill  site,  and  build-  ! 
] ings  and  foundations,  f 

300  “ 

Pacific  Mills 

44 

June 

6 

2 

1.  wheel-pits,  etc J 

300  “ 

William  C.  Chapin  . . 

a 

July 

12 

0 2-6 

900 

Russell  Paper  Co.  . . . 

44 

Sept. 

1 

0 2-6 

900 

Davis  & Taylor  . . 

44 

0 1-12 

900 

S.  S.  & D.  P.  Crocker  . 

<4 

Sept. 

15 

0 1-6 

900 

Davis  & Taylor  .... 

1866 

Oct. 

12 

1 

South  Canal 

1,200  a year 

James  S.  Munroe  . . . 

<6 

“ 

2 

44  

1,200  “ 

Davis  & Taylor  .... 

1868 

Nov. 

9 

0 1-2 

“ 

1,200  “ 

Pacific  Mills 

1869 

Oct. 

1 

3 

$9,336  cash 

300  gold 
300  « 

Atlantic  Cotton  Mills  . 

44 

2 

Washington  Mills  . . . 

44 

44 

1 

44 

300  “ 

Pemberton  Co 

44 

1 1-2 

44 

300  “ 

Lawrence  Duck  Co.  . . 

44 

2 

44 

300  « 

Lawrence  WoollenMills 

44 

44 

0 1-2 

300  “ 

George  E.  Davis  . . . 

44 

0 1-12 

1,200  a year 

8.  M.  Stedman 

Lawrence  Flyer  & Spin- 

44 

0 2-12 

1,200  “ 

dle  Works 

44 

44 

0 4-12 

1,200  " 

W.  C.  Chapin  et  al.  . . 

44 

(4 

0 2-12 

1,200  “ 

8.  W.  Wilder 

44 

0 3-12 

1,200  “ 

Russell  Paper  Co.  . . . 

44 

1 

1,200  “ 

W.  A.  Russell  et  al.  . . 

44 

0 3-12 

1,200  “ 

William  Russell  & Sons 

44 

44 

0 9-12 

1,200  « 

Munroe  Paper  Co.  . . . 

1871 

Jan. 

2 

1 

South  Canal 

1,200  “ 

Davis  & Taylor  .... 

44 

April 

1 

0 6-12 

44  .......... 

1,200  “ 

Thomas  Greenbank  . . 

1872 

May 

2 

1 

44  

1,200  “ 

Henry  Arnold 

1 

44 

1,200  « 

Total 

122 

Q.  Does  this  contain  all  the  water  sold  by  the  Essex  Company, 
except  what  you  call  surplus  water  ? 

A.  It  does. 

Q.  It  does  not  include  the  water  sold  to  the  city  of  Lawrence, 
does  it? 

A.  We  have  sold  them  none.  They  condemned  some,  and  we 
have  received  damages. 

Q.  They  condemned  how  much? 

A.  I cannot  tell  you  ; they  have  condemned  what  they  wanted 
to  use ; what  they  wanted  to  pump  into  their  reservoir. 

Q.  How  many  million  gallons  a year  did  they  condemn? 

A.  They  condemned  what  they  might  choose  to  pump. 

Q.  Ad  libitum  ? 


118 


Essex  Company. 


A.  Ad  libitum.  Of  course  we  settled  with  them  upon  such  esti- 
mates as  we  had  of  their  power  to  pump  and  to  use  water. 

Q.  Then  the  city  of  Lawrence  has  a right  to  pump  as  much  water 
as  they  choose  ? 

A.  They  have  for  certain  purposes  only,  and  to  pump  from  a 
certain  place. 

Q.  All  that  they  pump  from  a certain  place,  for  certain  purposes, 
they  have  a right  to  pump, — what  is  used  by  the  city,  I suppose? 

A.  For  domestic  and  steam-power  purposes ; not  for  water- 
power. 

Q.  To  make  steam? 

A.  To  make  steam. 

Q.  But  not  to  be  used  as  water-power? 

A.  No,  sir. 

Q.  For  all  purposes  for  which  the  city  uses  water,  except 
making  water-power,  they  have  a right  to  use  as  much  as  they 
please? 

A.  Yes,  sir. 

Q.  How  much  did  you  receive  for  that? 

A.  We  received  from  them  $15,000. 

Q.  By  the  verdict  of  any  tribunal,  or  by  agreement? 

A.  By  agreement. 

Q.  How  many  million  gallons  a day  did  you  deem  the  utmost 
limit  to  be  ? 

A.  We  deemed  that  the  utmost  limit  in  the  year,  1,900,  would 
be  about  five  million  gallons  a day. 

Re-direct. 

Q.  (By  Mr.  Merwin.)  That  would  be  equivalent  to  three- 
fifths  of  a mill-power  ? 

A.  About  half  a mill-power. 

Q.  (By  Mr.  Storrow.)  Do  you  know  how  much  water  they 
are  using  now,  and  have  been  using  up  to  this  time  ? 

A.  About  two  million  gallons,  I think. 

The  witness  also  produced,  on  call  of  Mr.  Butler,  a table  of 
sales  of  land  by  the  Essex  Company  [marked  “C.S.S.  7”]  : — 

/ Sales  of  Land  by  the  Essex  Company. 

On  the  north  side  of  Merrimack  river  the  streets  were  nearly  all 
laid  out  in  the  beginning  prices  were  affixed  and  sales  made  as 
the  land  was  called  for,  but  prices  not  reduced. 

They  were  from  time  to  time  raised  on  the  principal  streets. 

On  Essex  street  — best  business  street.  On  Haverhill  street — best  dwelling-houses. 


Sold  in  1846 

at  33  cents. 

1846 

15  cents. 

1855 

75 

u 

1850 

17  “ 

1865 

75 

u 

1860 

36  “ 

1870 

1.25 

1872 

1.50 

1873 

1.25- 

— very  large  lot. 

1874 

2.00 

1876 

2.50 

Israel  Colson. 


119 


These  lands  were  included  in  the  original  purchase  of  large 
farms  running  to  the  river,  of  which  the  cost,  after  adding  various 
charges  for  perfecting  titles,  etc.,  did  not  exceed  $100  an  acre. 

On  the  south  side  of  Merrimack  river  a few  streets  only  were 
laid  out  at  first,  prices  affixed,  never  reduced,  in  man}''  places  but 
little  raised.  But  as  soon  as  sales  were  freely  made,  new  streets 
were  laid  out,  farther  from  the  business  centre  and  less  valuable 
from  their  location,  upon  which  prices  were  affixed  and  lands  sold 
even  higher,  in  many  cases,  than  in  the  previously  graded  streets, 
where  land  was  evidently  worth  more. 

Thus  the  advance  in  value  was  obtained  not  generally  by  raising 
the  price  of  what  was  offered  for  sale,  but  by  pushing  new  streets 
and  high  prices  farther  and  farther  from  the  business  centre,  and  so 
adding  greatly  to  the  salable  value  of  what  was  left  untouched 
and  unoffered,  nearer  the  centre. 


Land  on  Turnpike,  or  Broadway. 

Sold  in  1860  4 cents. 

1865  6 “ 

1867  25  “ 

1874  Unchanged. 


Blanchard  street. 

1865  6 cents. 

1871  10  “ Adjoining  the  above. 

1867  25  “ Corner  lot. 


Springfield  street. 

1868  12  cents. 
1876  20  “ 


Union  street. 

1869  6 cents. 

1871  10  “ 


These  lands  were  included  in  large  farms,  extending  to  the  river, 
part  of  the  original  purchase,  and  not  exceeding  $100  per  acre. 


EVIDENCE  FOR  THE  DEFENCE. 

Mr.  Butler.  I will  not  trouble  you,  gentlemen  of  the  Commis- 
sion, by  making  any  opening  of  the  case,  because  I only  propose 
to  call  two  witnesses  to  a single  fact,  for  the  purpose  of  raising  a 
question  of  law. 

Israel  Colson.  — Sworn. 

Q.  (By  Mr.  Butler.)  Where  do  you  live? 

A.  In  North  Billerica. 

Q.  Near  to  the  Billerica  mill,  now  worked  by  Mr.  Talbot? 

A.  About  three  minutes’  walk. 

Q.  May  I ask  your  age? 

A.  73. 

Q.  Have  you  lived  there  all  your  life  ? 

A.  No,  sir. 

Q.  When  did  you  first  go  to  Billerica? 

A.  About  1820. 

Q.  Have  you  lived  there  ever  since  ? 


120 


Essex  Company. 


A.  Yes,  sir,  when  at  home. 

Q.  Had  you  ever  anything  to  do  with  the  Middlesex  canal? 

A.  I was  employed  by  the  proprietors  for  a number  of  years. 

Q.  From  what  time  to  what  time? 

A.  From  1822  to  1852. 

Q.  In  what  capacity? 

A.  As  carpenter,  and  repairing  the  locks,  the  former  part  of  the 
time.  The  latter  part  I had  charge  of  the  work, — care  of  the 
water  and  the  wood-work. 

Q.  General  charge  of  that  place? 

A.  General  charge  ; yes,  sir. 

Commissioner  Francis.  Charge  of  that  part  of  the  canal,  I sup- 
pose,— not  the  whole? 

Mr.  Butler.  Yes,  sir. 

Q.  What  dam  was  used  when  you  first  came  there — the  one 
that  is  now  there,  or  another  one? 

A.  No,  sir,  the  old  dam.  There  was  an  old  leaky  dam  there. 

Q.  How  was  it  made? 

A.  The  back  and  lower  side  was  built  up  of  stone — cobble- 
stone, — and  piled  in  front  and  gravelled. 

Q.  Was  there  a grist-mill  there  then? 

A.  Yes,  sir. 

Q.  Any  other  mill  ? 

A.  A saw-mill. 

Q.  Any  other? 

A.  Faulkner’s  mill  was  on  the  other  side. 

Q.  Any  one  of  the  mills  standing  now? 

A.  A part  of  Faulkner’s. 

Q.  What  was  that  then  ? 

A.  A woollen  mill  — flannel. 

Q.  What  right  had  Faulkner  then  to  the  water  superior  to  the 
grist-mill,  or  who  had  the  first  right? 

Mr.  Merwin.  Wait  a moment.  It  is  hardly  competent  for 
this  witness  to  state,  as  far  as  appears. 

A.  The  mill  had  the  first  right. 

Mr.  Storrow.  I have  the  deeds  here,  if  it  is  desirable  to  prove 
those  facts. 

Mr.  Merwin.  It  is  immaterial  to  the  Essex  Company.  It  may 
be  material  to  some  of  the  others  ; but  still  it  is  not  to  be  proved 
by  this  witness. 

Mr.  Butler.  He  was  the  man  who  had  charge.  But  I will  put 
it  in  another  form.  In  what  manner  was  the  water  used,  as  to 
who  had  the  first  right? 

Mr.  Merwin.  The  latter  part  of  the  question  is  objectionable  ; 
the  first  is  not.  He  can  say  how  the  water  was  actually  used. 

Q.  Well,  go  on  and  state  how  it  was  used. 

A.  It  was  used  by  the  town  for  the  town  grinding. 

Q.  Who  used  it  next? 

A.  The  proprietors  of  the  Middlesex  Canal. 

Q.  Who  next? 

A.  Faulkner. 


Israel  Colson. 


121 


Q.  Did  that  state  of  use  continue  from  1822  to  1852,  about  the 
time  when  the  canal  was  stopped? 

A.  Yes,  sir  ; I believe  it  did. 

Q.  Now,  sir,  when  was  the  present  dam  built? 

A.  In  1828. 

Q.  At  the  height  it  is  now  ? 

A.  Yes,  sir. 

Q.  Prior  to  the  building  of  the  present  dam  was  there  an  insuffi- 
ciency of  water  for  the  uses  of  the  canal  in  the  dry  months  ? 

A.  At  some  seasons  there  was  not  enough  without  taking  the 
whole,  except  the  grist-mill. 

Q.  Was  the  new  dam  raised  higher  than  the  old  one? 

A.  Not  to  my  knowledge. 

Q.  Whether  it  was  effectively  higher,  by  being  tighter,  and 
keeping  the  water  back  higher  ? 

A.  I cannot  tell  as  to  that.  I worked  on  the  dam  all  the  time 
it  was  being  built.  We  had  a mark  to  go  by  to  lay  the  stone  and 
put  the  flash-boards,  so  as  to  raise  the  water  to  the  same  height. 

Q.  Now,  sir,  during  the  dry  season  did  the  canal  use  substan- 
tially all  the  water  in  filling  itself  up  and  down  ? 

A.  There  were  times  when  they  required  all  the  water  there  was 
in  the  stream. 

Q.  And  then  would  they  be  short? 

A.  I have  known  boats  to  ground  with  a full  load. 

Q.  Whether  you  fed  both  ways  from  that  pond  — both  into  the 
Merrimack  and  down  to  Charlestown? 

A.  Yes,  sir. 

Q.  Do  you  know  where  the  fordway  is,  as  it  is  called,  just 
above  the  pond  ? 

A.  Ido. 

Q.  Whether  the  Middlesex  proprietors  found  it  necessary  and 
did  in  the  summer  dredge  out  this  ford  way,  or  cut  the  weeds,  so 
as  to  let  down  more  water,  in  the  dry  seasons? 

A.  I have  known  them  to  mow  the  weeds  — mow  the  grass. 

Q.  To  let  down  more  water,  or  to  get  the  hay  ? 

A.  That  was  their  object,  to  get  more  water.  The  weeds  grew 
so  thick  that  they  effectually  dammed  the  water  up. 

Q.  How  much  did  the  water,  in  the  dry  season,  flow  over  at  the 
fordway  ? 

A.  I cannot  tell. 

Q.  Can  you  give  us  any  idea  how  deep  it  was? 

A.  Well,  it  was  so  you  could  wade  across  there  — perhaps 
eighteen  inches,  as  nigh  as  I can  tell.  I never  measured  it. 

Q.  How  wide  would  it  be  eighteen  inches  deep? 

A.  One  huudred  feet,  for  a guess. 

Q.  When  was  Whipple’s  lock  put  in? 

A.  I don’t  know  exactly  the  year;  still,  I built  it;  but  it  was 
somewhere  about  1838  or  1839. 

Q.  Did  you  know  of  Mr.  Whipple  at  any  time  during  his  life- 
time making  any  claim  for  damages  upon  the  canal  for  taking  the 
water  ? 

A.  No,  sir. 


122 


Essex  Company. 


Mr.  Merwin.  That  is  immaterial. 

Q.  I should  like  to  get  some  of  these  facts,  Mr.  Colson,  with  a 
little  more  definiteness,  if  I can.  For  how  long  a period  in  the 
summer  would  you  use  the  whole  water,  and  how  many  summers, 
say  one  in  eight,  one  in  six,  one  in  four,  or  however  it  was? 

A.  I cannot  tell ; I never  macle  any  account  of  it ; might  be 
three  or  four  in  ten  that  they  required  all  the  water  which  they 
were  entitled  to,  I suppose. 

Q.  Three  or  four  years  in  ten  ? 

A.  Three  or  four  summers,  some  part  of  the  summer.  Some 
seasons  they  were  not  troubled. 

Q.  And  for  how  long  a period  during  the  summer,  some  sum- 
mers ? 

A.  Oh,  I have  known  it  to  be  pretty  dry,  known  them  to  be 
pretty  short  of  water  for  six  weeks  — from  three  to  six  weeks  ; I 
mean  short,  so  that  the  mills  could  not  run  ; I don’t  mean  that  the 
canal  would  be  so  that  they  could  not  boat. 

Q.  That  is,  so  short  that  substantially  all  the  water  went  down 
the  canal,  one  way  or  the  other  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Merwin.)  You  don’t  mean  that  the  grist-mill 
could  not  run? 

A.  No,  sir. 

Mr.  Butler.  The  grist-mill  could  run  first,  if  anybody  had 
anything  to  grind. 

Q.  When  they  were  short  of  water  in  the  canal,  did  they  use  to 
run  the  grist-mill  at  all? 

A.  They  always  ground  the  town  grinding  for  the  town,  if  the 
grain  was  there,  and  they  requested  it. 

Q.  Didn’t  they  sometimes  send  it  to  Boston  to  be  ground? 

A.  Not  the  town’s  grain. 

Q.  Not  the  town’s  grain ; but  other  people’s  grain,  who  brought 
it  there  to  be  ground  ? 

A.  Mr.  Hale  carried  on  the  mill  there  once,  and  bought  grain 
and  carried  it  to  Lowell  when  he  was  at  Lowell  market,  and  he 
might  — 

Q.  (By  Commissioner  Russell.)  What  do  you  mean  by  “the 
town’s  grain  ” ? 

A.  I mean  for  the  people  of  the  town.  The  town  had  the  right, 
previous  to  anybody  else,  to  have  their  grain  ground. 


Cross-examination. 

Q.  (By  Mr.  Storrow.)  What  is  the  width  of  the  Middlesex 
Canal,  or  what  was  it  at  that  time? 

A.  About  two  rods  on  the  surface. 

Q.  What  was  the  depth  ? 

A.  There  were  various  depths  ; but  they  required  about  3£  feet 
of  water  for  a full-loaded  boat  — 3 to  4 feet  depth  of  water. 

Q.  Where  did  the  canal  enter  ino  the  Merrimack  river  — at  the 
part  of  the  river  above  the  locks  and  canals’  present  dam,  or  be- 
low it? 


Joseph  Tilton. 


123 


A.  Yes,  sir,  above  that  dam,  at  Middlesex  village. 

Q.  About  how  far  from  Billerica? 

A.  About  five  miles  above  North  Billerica. 

Q.  And  how  long  was  it  from  North  Billerica  to  Boston? 

A.  Twenty  miles. 

Q.  Has  the  canal  been  used  any  since  1852  for  purposes  of  nav- 
igation ? 

A.  I think  not.  I think  it  was  closed  to  navigation  in  1851 ; 
but  still  I was  employed  on  part  of  it  in  1852  by  the  company,  to 
see  to  their  bridges. 

Q.  Do  you  know  whether  the  canal  has  been  allowed  to  fill  up, 
the  gates  to  rot  away,  and  the  banks  to  cave  in,  or  has  it  been  kept 
up  in  good  order,  so  as  to  let  the  water  run  in  now  ? 

A.  I don’t  know  of  its  being  filled  up  — any  part  of  it.  It  is 
open  now  ; the  portions  that  I know. 

Q.  But  you  have  never  been  through  the  whole  length  of  it 
since  then? 

A.  No,  sir. 

Joseph  Tilton.  — Sworn . 

Q.  (By  Mr.  Butler.)  You  live  in  Lowell,  Mr.  Tilton  ? 

A.  Yes,  sir. 

Q.  When  did  you  come  to  Lowell? 

A.  I came  to  Lowell  in  1835. 

Q.  And  have  lived  there  ever  since  ? 

A.  Yes,  sir. 

Q.  What  is  your  age,  Mr.  Tilton  ? 

A.  59,  — about  that. 

Q.  What  was  the  first  work  you  did  when  you  came  to  Lowell, 
the  first  employment  you  had  ? 

A.  About  the  first  work  I did  was  what  they  called  refining  salt- 
petre. 

Q.  You  went  to  work  for  Whipple  ? 

A.  Yes,  sir. 

Q.  He  carried  on  powder  works  at  what  is  now  the  Wamesit 
power  ? 

A.  Yes,  sir. 

Q.  When  did  Mr.  Whipple  build  or  rebuild  the  dam  there  ? 

A.  I think  he  built  one  the  second  year  I came  there  — in  1836 
— a wooden  dam. 

Q.  Was  there  a dam  there  before? 

A.  Yes,  sir. 

Q.  An  old  dam  ? 

A.  Yes,  sir. 

Q.  It  had  the  powder-mill  running  on  it  then  ? 

A.  Yes,  sir. 

Q.  Have  you  been  employed  about  that  dam  or  in  the  work- 
shops connected  therewith  ever  since? 

A.  I have. 

Q.  And  are  so  employed  to-day  ? 

A.  Yes,  sir. 


124 


Essex  Company. 


Q.  From  the  time  you  first  came  there  and  knew  about  the 
water,  say  at  the  time  when  the  new  dam  was  built,  if  that  was 
the  time,  as  long  as  the  Middlesex  Canal  run,  how  was  the  water 
of  that  privilege  in  the  summer? 

A.  About  June,  July  and  August,  sometimes  it  was  very  low — 
very  low  indeed. 

Q.  Whether  you  would  have  water  enough  to  run  the  mills  at 
all  at  such  times? 

A.  Hardly  any.  We  used  to  get  a little  nights;  rather  more 
than  we  did  days. 

Q.  Whether  that  state  of  things  continued  as  long  as  they 
worked  the  canal? 

A.  It  did. 

Q.  After  they  shut  up  the  canal,  how  did  the  water  compare  in 
the  summer  with  what  it  was  before? 

A.  When  the  water  was  high  we  couldn’t  tell ; but  in  a dry 
time  we  could  get  a good  deal  more.  We  used  to  get  a pretty 
good  supply  of  water. 

Q.  How  has  the  water  been  up  to  this  time?  Has  it  been 
increasing? 

A.  It  appears  to  me  that  we  have  had  more  water  for  the  last 
few  years  than  we  had  previous  to  that.  It  appears  to  me  that 
it  is  rather  on  the  gain. 

Q.  Rather  on  the  gain,  even  since  the  canal  has  been  filled  up? 

A.  Yes,  sir,  since  they  filled  up  the  canal. 

Q.  Do  you  know  whether  Mr.  Whipple  had  a reservoir  any- 
where ? 

A.  I don’t  think  he  had.  I don’t  know,  but  I don’t  think  he 
had. 

Q.  Do  you  know  Magog  pond  ? 

A.  I don’t. 

Q.  Now,  sir,  in  the  dry  time,  does  the  amount  of  water  used  by 
the  mill  at  the  Wamesit  dam  draw  it  completely  down  at  night? 

A.  It  does. 

Q.  Whether  it  fills  up  during  the  night  so  as  to  ran  over  the 
dam  ? 

A.  Sometimes  it  does,  and  sometimes  it  does  not ; sometimes 
they  run  mills  there  at  night,  and  sometimes  they  don’t. 

Q.  Suppose  they  should  shut  down? 

A.  If  they  should  shut  down,  it  would  fill  up  ; but  sometimes 
in  a dry  time  it  is  not  filled  up. 

Q.  Is  there  any  considerable  pond  for  the  storage  of  water 
between  the  Wamesit  dam  and  the  Billerica  dam? 

A.  Yes,  sir,  there  is  considerable  of  a pond. 

Q.  About  how  far  is  it  from  the  Billerica  dam  to  the  Wamesit 
dam  ? 

A.  I don’t  know  as  I know  how  far  it  is.  I believe  they  call  it 
about  three  miles. 

Q.  Do  you  know  whether  the  dam  flows  back  to  the  Billerica 
privilege  from  the  dam  at  Wamesit? 

A.  Well,  I think  that  when  the  water  is  high  it  backs  back.  It 
might  back  up  pretty  near  the  mills  when  the  water  is  low ; I 
shouldn’t  think  it  would. 


Evidence  for  the  City. 


125 


Q.  In  a time  of  low  water,  when  is  your  shortest  time  for  water? 
What  time  in  the  week,  or  what  time  in  the  day? 

A.  Well,  Monday  morning,  about  ten  o’clock,  is  the  worst  time 
we  get,  and  then  it  keeps  getting  lower  until  night,  when  the  water 
is  low.  We  do  not  get  any  from  Billerica  until  about  noon,  about 
twelve  o’clock.  That  helps  considerable  in  the  afternoon. 

Q.  That  is,  if  I understand  you,  the  pond  on  Monday  morning 
is  drawn  down  by  the  mill  before  the  Billerica  water  comes  down? 

A.  Yes,  sir. 

Q.  (By  Commissioner  Russell.)  You  say  at  twelve  o’clock  you 
begin  to  get  the  water  from  where? 

A.  From  Billerica  mills.  That  is  what  we  think ; that  we 
receive  the  benefit  of  that  water  about  twelve  o’clock. 

Cross-examination . 

Q.  (By  Mr.  Storrow.)  How  far  is  it  from  the  Billerica  dam 
to  the  Wamesit  dam? 

A.  About  three  miles. 

Q.  And  you  think  it  takes  the  water  until  twelve  o’clock  to  get 
down  there? 

A.  I think  it  takes  until  about  twelve  o’clock  to  get  there  ; it  is 
a pretty  dead  stream. 


Mr.  Butler.  I now  put  in  chapter  203,  acts  of  1860,  11th 
Special  Laws,  p.  109,  “ An  Act  in  relation  to  the  proprietors  of 
the  Middlesex  Canal,  approved  April  4th,  1860. 

“ Whereas , The  Supreme  Judicial  Court  of  this  Commonwealth, 
on  the  third  day  of  October  last,  upon  an  information  filed  by  the 
Attorney' -General,  pursuant  to  a resolve  of  the  last  Legislature, 
by  a judgment  and  decree,  declared  that  the  Proprietors  of  the 
Middlesex  Canal,  or  any  persons  pretending  to  hold  the  privileges, 
franchises  and  liberties  of  said  corporation,  do  not,  in  any  manner, 
have,  hold,  use,  exercise  or  enjoy  the  said  privileges,  franchises 
and  liberties,  under  and  by  virtue  of  any  authority  conferred  by 
any  act  of  the  General  Court  of  this  Commonwealth,  and  that  said 
Proprietors  of  the  Middlesex  Canal  be  absolutely  prejudged  and 
excluded  from  having,  holding,  using,  exercising  or  enjoying  said 
franchise,  privileges  and  liberties.  Now,  therefore,  — 

“ Be  it  enacted  by  the  Senate  and  House  of  Representatives , in 
General  Court  assembled  and  by  the  authority  of  the  same , as 
follows : — 

“ All  the  privileges,  liberties  and  franchises  granted  or  given 
by  the  twenty-first  chapter  of  the  Acts  of  the  Legislature  of  the 
year  one  thousand  seven  hundred  and  ninet}T-three,  incorporating 
said  proprietors,  or  by  any  subsequent  acts  in  addition  thereto,  are 
hereby  declared  seized  into  the  hands  of  the  Commonwealth,  for- 
feited and  annulled,  in  consequence  of  the  non-feasance  and  mis- 
feasance of  said  corporation,  and  the  neglect  of  their  corporate 
duties,  in  accordance  with  said  judgment  and  decree.” 


126 


Essex  Company. 


[See  also  agreed  facts  put  in  by  the  city  on  p.  69,  supra.'] 

Sir.  Butler.  I believe  that  is  all  in  the  way  of  evidence  that 
we  have. 

Mr.  Storrow.  We  have  something  in  reply.  We  put  in  the 
“ Resolve  concerning  the  Middlesex  Canal,”  chapter  38  of  the  Acts 
and  Resolves  of  1859,  approved  March  29th,  1859  : — 

“ Resolved , That  the  attorney-general  be,  and  hereby  is,  directed 
and  empowered  to  institute  and  prosecute  an  information  in  the 
nature  of  a quo  warranto , or  other  suitable  process,  against  the 
proprietors  of  the  Middlesex  Canal,  requiring  said  corporation  to 
appear  before  the  justices  of  the  Supreme  Judicial  Court,  at  a 
proper  term  thereof,  to  show  cause,  if  any  said  corporation  have, 
why  the  charter  of  said  corporation  should  not  be  adjudged  to  be 
forfeit,  and  that  all  due  proceedings  and  decrees  in  the  premises 
before  our  said  court  be  had.” 

I put  in  now  a certified  copy  of  a decree  of  the  Supreme  Court 
of  Middlesex  County,  dated  April  term,  1859  : — 

Commonwealth  of  Massachusetts. 

Middlesex , ss.  At  the  Supreme  Judicial  Court  of  the  Common- 
wealth of  Massachusetts,  begun  and  holden  at  Lowell,  within 
and  for  the  County  of  Middlesex,  on  the  second  Tuesday  of 
April,  being  the  twelfth  day  of  said  month,  Anno  Domini  1859. 

Be  it  remembered  that  Stephen  Henry  Phillips,  Attorney-Gen- 
eral of  said  Commonwealth,  who  prosecutes  for  said  Commonwealth 
in  this  behalf,  by  virtue  and  authority  of  a Resolve  of  the  General 
Court,  approved  by  the  Governor  on  the  twenty-ninth  day  of  March, 
in  the  year  one  thousand  eight  hundred  and  fifty-nine,  entitled  “Re- 
solve concerning  the  Middlesex  Canal,”  comes  here  and  gives  this 
Honorable  Court  to  understand  and  be  informed,  that  the  defend- 
ants are  a corporation  duly  established  by  law  of  this  Common- 
wealth, approved  on  the  twenty-second  day  of  June,  in  the  year 
one  thousand  seven  hundred  and  ninet3r-three,  entitled  “An  Act  for 
incorporating  James  Sullivan,  Esquire,  and  others,  by  the  name 
and  style  of  the  Proprietors  of  the  Middlesex  Canal ; ” that  said 
defendant  corporation  have  a usual  and  established  place  of  busi- 
ness at  Charlestown,  in  said  county  of  Middlesex ; that  said 
defendant  corporation,  by  virtue  of  said  act  and  the  several  acts 
in  addition  thereto,  became  entitled  to  have,  exercise  and  enjoy  all 
the  rights,  powers,  liberties,  privileges,  and  franchises  by  said  acts 
given  and  granted,  and  subject  to  all  the  duties,  liabilities  and  re- 
strictions therein  set  forth  ; that  in  and  by  said  above-entitled  act, 
the  said  defendant  corporation  became  and  were  fully  authorized 
and  empowered  to  construct  and  maintain  a canal  from  the  waters 
of  the  Merrimack  river,  in  said  county,  to  the  waters  of  the  Med- 
ford river,  in  said  county,  and  other  canals  in  said  several  acts 
described  ; that  the  said  defendant  corporation  did  construct,  and 
for  a long  time  thereafter,  to  wit,  until  the  first  day  of  June,  in  the 
year  one  thousand  eight  hundred  and  fifty-three,  did  maintain  a 


Dissolution  of  Middlesex  Canal. 


127 


canal  from  the  waters  of  the  said  Merrimack  river  to  the  waters  of 
the  Medford  river  aforesaid,  in  said  county,  as  by  force  of  the  said 
acts  they  were  authorized  and  empowered  to  do,  and  until  said  last- 
named  day  said  defendant  corporation  continued  to  use  and  exer- 
cise the  several  rights,  powers,  liberties  and  franchises  aforesaid. 
And  said  Attorney*General  further  gives  this  Court  to  understand 
and  be  informed,  that  since  the  day  last  aforesaid,  and  from  that 
day  to  the  time  of  filing  this  information,  said  defendant  corporation 
has  wholly  refused  and  neglected  to  maintain  said  canal,  and  has 
sold  and  conveyed  divers  portions  of  the  real  estate  theretofore 
holden  by  said  corporation,  and  necessary  to  be  holden  by  them 
for  the  purpose  of  maintaining  said  canal,  and  have  used  parts  of 
said  canal  and  the  waters  thereof  for  uses  and  purposes  for  which 
they  were  not  authorized  by  law  to  use  the  same  ; that  for  a 
long  time  past,  to  wit,  for  the  period  of  three  years  before  the 
filing  of  this  information,  they  have  wholly  ceased  and  neglected 
to  hold  meetings  and  choose  officers  of  said  corporation,  and 
to  transact  business  as  a corporation,  or  to  use  and  exercise 
the  rights,  powers,  privileges,  franchises  and  liberties  aforesaid, 
or  an}r  of  them,  as  by  law  they  were  authorized  and  required  to 
do,  to  the  great  injury  of  the  said  Commonwealth.  Whereupon 
the  said  Attorney-General  of  the  said  Commonwealth  prays 
advice  of  the  said  Court  in  the  premises,  and  due  process  of  law 
against  the  said  Proprietors  of  the  Middlesex  Canal  in  this 
behalf,  to  be  made  to  answer  and  show  cause,  if  any  they  have, 
why  the  rights,  privileges,  franchises  and  liberties  given  and 
granted  them  as  atoresaid,  should  not  be  adjudged  to  be  forfeited 
by  reason  of  the  non-feasance,  non-user,  mis-feasance  and  neglect 
aforesaid ; and  that  said  defendant  corporation  may  further  make 
answer  by  what  warrant  they  claim  to  have,  use  and  enjoy,  the 
rights,  powers,  privileges,  liberties  and  franchises  last  aforesaid, 
said  defendant  corporation  having  forfeited  the  same,  by  reason 
of  non-feasance,  non-user,  mis-feasance  and  neglect  aforesaid.  This 
information  was  presented  to  this  Court,  in  the  County  of  Suffolk, 
at  the  March  term  last,  when  and  where  it  was  ordered,  that 
notice  should  be  given  to  the  said  Proprietors  of  the  Middlesex 
Canal  to  appear  before  the  Justices  of  this  Court,  to  be  holden  at 
Lowell,  within  and  for  the  County  of  Middlesex,  on  the  first 
Monday  of  September,  then  next,  by  adjournment  from  the  second 
Tuesday  of  April  instant,  by  serving  them  with  an  attested  copy 
of  said  information,  and  of  this  order  thereon  thirty  days  at 
least  before  said  first  Monday  of  September  next,  that  they  might 
then  and  there  answer  to  said  information,  and  show  cause  accord- 
ing to  the  prayer  thereof.  And  now  the  information  is  entered 
in  this  Court,  and  it  appears  that  notice  has  been  given,  pursuant 
to  the  order  aforesaid,  but  the  respondents  do  not  appear.  And 
afterwards,  to  wit,  on  the  third  day  of  October,  A.  D.  1859,  all 
and  singular  the  premises  being  seen  and  understood  : It  is  con- 
sidered by  the  Court  here  that  the  said  Proprietors  of  the  Middle- 
sex Canal,  or  any  persons  pretending  to  hold  the  privileges,  fran- 
chises and  liberties  of  said  corporation,  do  not,  in. any  manner, 
have,  hold,  use,  exercise  or  enjoy  the  several  franchises,  privi- 


128 


Essex  Company. 


leges  and  liberties  in  said  information  specified,  under  and  by 
virtue  of  any  authority  conferred  by  any  act  of  the  General  Court 
of  this  Commonwealth,  but  that  the  said  proprietors  of  the  Mid- 
dlesex Canal  be  absolutely  forejudged,  and  excluded  from  having, 
holding,  using,  exercising  or  enjoying  said  franchises,  privileges 
and  liberties ; and  that  the  said  Commonwealth  recover  costs 
against  the  said  proprietors  taxed  at 

(April  3,  I860,  three  months  after  judgment.  Plaintiffs  vouch- 
ers not  filed.) 

In  testimony  that  the  foregoing  is  a true  copy  of  record,  I 
hereto  set  my  hand  and  affix  the  seal  of  said  Supreme  Judicial 
Court,  this  seventh  day  of  July,  A.  D.  1876. 

JOHN  J.  SAWYER, 
Assistant  Clerk. 

I also  put  in  the  deed  of  Thomas  Richardson,  to  the  Middlesex 
Canal,  dated  March  25,  1794,  recorded  in  Middlesex  Deeds,  book 
115,  page  258. 

Commissioner  Russell.  That  deed  you  put  in  by  reference  to 
a volume. 

Mr.  Storrow.  I have  the  book  here ; I have  not  a certified 
copy,  but  I think  this  is  a certified  copy  which  Gen.  Butler  put 
into  one  of  the  Sudbury-river  cases. 

Mr.  Butler.  Yes  ; that  is  a true  copy. 

Mr.  Storrow.  I read  it  from  House  Document  No.  100,  Jan- 
uary 28,  1860,  “ Report  of  the  Joint  Special  Committee  upon  the 
subject  of  the  flowage  of  meadows  on  Concord  and  Sudbury 
rivers.”  I put  in  with  that  the  vote  of  the  town  which  is  referred 
to  in  that  Richardson  deed,  as  the  source  of  his  title,  and  as  con- 
taining the  conditions  under  which  he  conveys,  and  which  is 
found  in  Appendix  B,  page  vi.  of  the  report. 

[From  the  Records  of  the  Town  of  Billerica .] 

(Vol.  ii.,  p.  276.)  “At  a general  Town  Meeting,  Oct.  4th, 
1708.  Granted  to  Christopher  Osgood,  Jr.,  of  Andover,  all  that 
neck  of  land  on  the  west  side  of  Concord  river,  lying  between 
said  river  and  the  pathway  leading  to  broad  meadow,  with  the 
stream  at  the  falls,  reserving  ten  poles  from  the  ford  way  down 
said  river,  and  from  the  foot  of  the  hill  going  down  into  broad 
meadow  ; provided  the  said  Christopher  Osgood  do,  within  two 
years  next  ensuing  the  date  hereof,  erect  and  maintain  a good 
grist-mill  upon  said  river,  at  the  falls  over  against  Samuel  Rogers 
his  house  lot,  and  the  said  Osgood  doeth  engage  to  secure  and 
defend  the  town  of  Billerica  from  any  trouble  and  charge  that 
may  arise  for  damage  that  may  be  done  to  the  meadows  of  the 
towns  above,  as  by  said  mill-dam  ; the  said  land  is  given  and 
granted  to  the  said  Christopher  Osgood  and  his  heirs,  by  the  town 
of  Billerica,  so  long  as  he  and  they  shall  maintain  a good  grist- 
mill at  said  place ; and  when  said  mill  ceases,  the  land  shall 
return  to  the  said  town  of  Billerica.” 

I also  put  in  the  deed  of  the  Middlesex  Canal  Company  to 
Francis  Faulkner,  dated  May  4,  1825,  recorded  in  Middlesex 


Deeds  to  Faulkner  and  Talbot. 


129 


Deeds,  book  260,  page  48 ; page  50  of  the  same  volume,  Appen- 
dix M.  The  material  part,  which  I will  read,  is  this  : — 

“ And  the  said  corporation  do  also  grant  by  these  presents  unto 
said  Faulkner,  his  heirs  and  assigns,  the  privilege  of  using  the 
water  which  passes  through  one-half  of  the  creek  leading  from  the 
mill-pond  to  the  fulling-mill  in  the  channel,  as  it  now  runs 
under  the  mill  now  in  the  possession  of  said  Faulkner,  for  the  pur- 
pose of  working  said  mill  and  factory,  as  it  now  is  connected 
therewith,  whenever  the  exercise  of  such  privilege  shall  not  deprive 
the  grantors  or  their  assigns  of  an  ample  and  sufficient  supply  of 
water  at  all  times,  and  for  all  purposes  and  occasions,  not  ex- 
ceeding, however,  the  quantity  which  is,  or  may  be,  requisite  for 
the  Middlesex  Canal ; and  to  carry  the  grist-mills  and  saw-mills 
of  said  grantors  as  they  now  are,  whether  used  by  the  grantors  or 
others  to  whom  they  may  choose  to  sell  or  dispose  of  the  same, 
for  the  same  or  any  other  purpose.”  Then  it  fixes  an  arbitrary 
standard  of  height  below  which  he  may  not  draw,  which  was  the 
origin  of  the  44  bolt  ” that  has  been  referred  to. 

44  And  the  said  grantors  also  reserve  the  right  to  use  the  water 
in  the  mill-pond  in  any  quantity,  and  for  any  and  all  purposes 
whatsoever,  when  the  quantity  in  said  pond  is  so  great  as  to  flow 
over  the  dam,  as  well  as  to  drain  the  whole  pond,  if  necessary,  for 
the  purposes  of  the  canal.” 

I also  put  in  the  deed  of  the  Middlesex  Canal  Company  to 
C.  P.  Talbot  and  others,  recorded  in  Middlesex  Deeds,  Book  618, 
p.  87,  dated  Sept.  22,  1851,  Appendix  N,  p.  liv. 

Mr.  Butler.  Will  you  read  the  whole  of  that  deed? 

Mr.  Storrow.  I will  read  it  if  you  want  it,  but  there  are  six 
pages  of  fine  print. 

Mr.  Butler.  Well,  begin  at  the  beginning,  and  read  a little  in. 

Mr.  Storrow  [reading].  44  Know  all  men  by  these  presents , 
That  the  Proprietors  of  the  Middlesex  Canal,  a corporation 
established  by  authority  of  the  Commonwealth  of  Massachusetts, 
in  consideration  of  Twenty  Thousand  Dollars,  paid  by  Charles  P. 
Talbot,  of  Lowell,  and  Thomas  Talbot,  of  Billerica,  in  the  County 
of  Middlesex,  and  Commonwealth  of  Massachusetts,  manufac- 
turers and  copartners,  the  receipt  whereof  is  hereby  acknowledged, 
do  hereby  bargain,  sell,  remise,  release,  and  forever  quitclaim 
unto  said  Charles  P.  and  Thomas  Talbot,  their  heirs  and  assigns, 
eleven  pieces  or  parcels  of  land,  lying  in  the  town  of  Billerica,  in 
said  county  and  commonwealth,  subject,  however,  to  the  use 
hereinafter  mentioned,  as  follows.” 

Then  there  is  a description  of  the  land  conveyed,  the  deed,  in- 
cluding the  land  under  and  adjoining  the  canal  itself,  reserving  the 
easements,  which  are  specified. 

44  To  have  and  to  hold  the  above-released  premises,  with  all  the 
privileges  and  appurtenances,  excepting  as  aforesaid,  to  the  said 
Charles  P.  and  Thomas  Talbot,  their  heirs  and  assigns,  to  their 
sole  use  and  behoof  forever ; but  upon  the  express  condition  that 
the  said  grantees  shall  perform  all  the  duties  and  obligations 
towards  the  town  of  Billerica,  which  the  said  grantors  are  bound 


130 


Essex  Company. 


to  perform  by  virtue  of  the  vote  of  the  inhabitants  of  said  town, 
referred  to  in  the  deed  of  said  Thomas  Richardson,  and  all  other 
conditions  set  forth  in  said  deed  ; and*  also  that  the  grantees  shall 
not,  whensoever  forbidden  so  to  do  by  said  corporation,  in  writing, 
signed  by  their  agent,  and  until  said  canal  shall  be  lawfully  dis- 
continued, draw  the  waters  of  said  river  lower  than  three-fourths 
of  an  inch  below  the  tops  of  the  flash-boards  on  the  stone  dam 
(the  lawful  height  of  said  flash-boards  being  fixed  by  the  top  of  an 
iron  pin  driven  into  a fast  rock  at  the  side  of  the  river  near  said 
dam,  which  is  to  be  referred  to,  to  determine  the  point  below 
which  the  said  waters  shall  not  be  drawn),  and  on  the  further  con- 
dition, that  the  said  grantees  shall,  after  the  discontinuance  of 
said  canal,  either  maintain  and  keep  in  good  repair,  at  their  own 
expense,  the  two  canal  bridges  southerly  of  the  Concord  river, 
adjoining  lands  above  described,  or  else  shall  take  down  the  said 
bridges  and  fill  up  said  canal  under  the  same,  and  make  thereon  in 
the  place  of  said  bridges  a good  and  sufficient  roadway,  to  the 
satisfaction  of  the  town  of  Billerica”  (if  you  will  look  at  the 
charter  of  the  Canal  Company  you  will  see  that  a certain  obliga- 
tion to  maintain  bridges  is  imposed  upon  them)  ; “ the  said 
grantees  to  have  for  their  own  use  and  benefit  all  the  stones  and 
materials  of  which  said  bridges  are  composed.  And  the  said  cor- 
poration do  hereby  covenant  to  and  with  the  said  Charles  P.  and 
Thomas  Talbot,  their  heirs  and  assigns,  that  the  above-released 
premises  are  free  from  all  incumbrances,  except  as  aforesaid  made 
or  suffered  by  the  said  corporation,  or  any  of  its  officers ; and 
that  the  said  corporation  will  warrant  and  defend  the  same  prem- 
ises to  the  said  Charles  P.  and  Thomas  Talbot,  their  heirs  and 
assigns,  against  the  lawful  claims  and  demands  of  all  persons 
claiming  by,  through  or  under  said  corporation,  except  for  breach 
of  condition,  as  aforesaid,  and  against  none  other.” 

Mr.  Butler.  You  see  the  reserved  right  is  not  to  have  the  water 
drawn  down  lower  than  three-quarters  of  an  inch  below  the  top  of 
the  bolt.  If  I can  find  the  bill  of  exceptions  I will  put  that  in. 

Mr.  Storrow.  There  is  no  bill  of  exceptions  in  this  case. 

I desire,  as  I have  already  said,  that  it  should  be  distinctly 
understood  that  there  are  no  exceptions  in  the  case  of  the  Essex 
Co.  This  case  was  not  entered  until  after  the  appointments  were 
made  in  the  other  cases,  or  at  any  rate  was  not  returnable  until 
after  that  day.  I knew  of  the  exceptions  in  the  other  cases,  and 
although  I had  an  opinion  as  to  their  value  or  want  of  value,  I did 
not  want  to  be  troubled  with  unnecessary  questions.  I went  to 
the  court,  on  notice  to  the  other  side,  with  evidence  to  prove  the 
case  which  Gen  Butler  says  ought  to  be  proved  before  the  appoint- 
ment of  commissioners  ; there  was  no  opposition,  the  appointment 
was  made  and  there  were  no  exceptions.  Either  those  questions 
which  are  referred  to  were  settled  in  our  favor  by  that  appointment 
or  they  are  to  be  tried  here,  I don’t  care  which ; you  cannot  assess 
our  damages  without  either  assuming  or  ascertaining  what  are  the 
rights  that  are  damaged. 

Mr.  Butler.  If  that  is  so  I object.  I do  not  believe  that  this 
commission  have  anything  to  do  with  the  trial  of  any  question  of 


Argument  of  Gen.  Butler  for  City. 


131 


fact  or  of  law,  except  so  far  as  that  question  of  fact  or  law  is  in- 
volved in  the  simple  assessment  of  damages  ; but  the  court  who 
have  created  your  commission  have  decided  otherwise.  I want 
now  and  at  all  times  to  object  to  this  class  of  questions  ; they  have 
no  business  here ; but  the  court  have  said  that  you  shall  decide 
them,  and  therefore  you  are  bound  as  much  by  that  as  you  choose. 

Mr.  Abbott.  Brother  Butler,  what  u class  of  questions  ” ? 

Mr.  Butler.  Such  as  questions  of  title,  questions  of  right. 
I say  you  have  no  right  to  decide  any  question  of  law  or  fact, 
except  such  questions  of  law  or  fact  as  are  involved  in  the  question 
of  damages  simply.  That  is  to  sa}', — how  much  damage  has  been 
done  to  the  rights  of  the  parties,  they  being  first  ascertained  by  the 
court.  And  as  illustrating  that,  I wish  to  call  your  attention  to 
the  several  acts  under  which  the  city  acted.  The  act  of  1872, 
already  put  in  for  taking  Sudbury  river,  refers  for  all  procedure 
under  the  act  to  the  Cochituate  Act  of  1846,  which  has  also  been 
put  in,  and  the  sixth  section  of  that  act  says  : — 

“ The  said  city  of  Boston  shall  be  liable  to  pay  all  damages  that 
shall  be  sustained  by  any  persons  in  their  property,  by  the  taking 
of  any  land,  water,  or  water-rights,  or  by  constructing  of  any 
aqueducts,  reservoirs,  or  other  works,  for  the  purposes  of  this 
act,  and  if  the  owners  of  any  land,  water,  or  water-rights  which 
shall  be  taken  as  aforesaid,  or  other  persons  who  shall  sustain 
damage  as  aforesaid,  shall  not  agree  upon  the  damages  to  be  paid 
theretor,  he  may  apply  by  petition  for  the  assessment  of  his  dam- 
ages at  any  time  within  three  years  from  the  taking  of  the  said  land, 
water,  or  water-rights,  as  aforesaid,  and  not  afterwards,  to  the 
Court  of  the  Common  Pleas,  in  the  county  in  which  the  same  are 
situate.” 

Then  it  provides  how  the  petition  shall  be  served,  and  says : 
u And  the  said  court  may,  upon  default  or  hearing  of  the  said  city, 
appoint  three  judicious  and  disinterested  freeholders  of  the  com- 
monwealth,”— which  freeholders  }^ou  are,  — “ who  shall  after 
reasonable  notice  to  the  parties  assess  the  damages,  if  any,  which 
such  petititioner  may  have  sustained  as  aforesaid.” 

Now,  you  will  observe,  in  the  first  place,  that  provision  is  made 
for  the  payment  of  all  damages  to  land  and  water  rights.  Sec- 
ondly, provision  is  made  as  to  how  the  damages  shall  be  assessed, 
subject  to  this  limitation,  which  is  in  the  first  section  : “ The  city 
of  Boston  shall,  within  sixty  days  from  the  time  they  shall  take 
any  lands,  or  ponds,  or  streams  of  water,  for  the  purposes  of  this 
act,  file,  in  the  office  of  the  registry  of  deeds,  for  the  county 
where  they  are  situate,  a description  of  the  lands,  ponds,  or 
streams  of  water  so  taken,  as  certain  as  is  required  in  a common 
conveyance  of  lands,  and  a statement  of  the  purpose  for  which 
taken,  which  said  description  and  statement  shall  be  signed  by 
the  said  mayor.”  Then  there  is  another  special  provision  made 
when  water  is  taken  alone.  The  first  provisions  apply  to  the 
taking  of  land  and  water  both,  or  either. 

“ Sect.  8.  No  application  shall  be  made  to  the  court  for  the 
assessment  of  damages  for  the  taking  of  any  water-rights  until  the 
water  shall  be  actually  withdrawn  or  diverted  by  the  said  city, 


132 


Essex  Company. 


under  the  authority  of  this  act ; and  any  person  or  corporation, 
whose  water-rights  may  be  thus  taken  and  affected,  may  make  his 
application  aforesaid  at  any  time  within  three  years  from  the  time 
when  the  waters  shall  be  first  actually  withdrawn  or  diverted  as 
aforesaid.”  And  then  the  other  section,  “ and  not  afterwards.” 

Those  are  the  provisions  under  which  the  city  has  done  what  it 
has  been  shown  to  have  done,  and  under  which  this  proceeding 
has  been  brought ; and  there  are,  as  we  claim,  three  or  four  matters 
which  must  be  conditions  precedent  to  the  maintaining  of  this 
petition  : First,  the  city  must  do  the  acts  required  by  the  statute 
to  protect  themselves  for  any  doings  of  theirs  under  this  act. 
They  must  first,  in  the  case  of  water,  have  withdrawn  the  water 
from  the  party  injured,  or  some  portion  of  it.  Next,  they  must 
file  a statement,  within  sixty  days  from  that  time,  of  the  land  to 
be  taken,  describing  the  land  that  they  take  with  the  certainty  of  a 
common  conveyance  ; and  if  they  do  not,  the  remedy  of  the  party 
aggrieved  is  at  common  law,  as  in  the  case  of  any  trespass. 
Third,  there  must  be  a demand  made  upon  the  city,  or  notice  to 
the  city,  by  anybody  who  is  aggrieved,  or  who  believes  himself 
aggrieved,  by  the  action  of  the  city,  before  a complaint  can  be 
filed,  in  order  to  give  the  water  commissioners  of  the  city  a 
chance  to  agree  with  him,  after  he  makes  his  demands,  and  say, 
“ We  will  pay  it ; ” because  you  will  observe  that  the  statute  says 
that  the  petition  shall  be  filed  in  person.  “ If  the  owner  of  any 
land,  water,  or  water-rights,  which  shall  be  taken  as  aforesaid,  or 
other  person  who  shall  sustain  damages  as  aforesaid,  shall  not 
agree  upon  the  damages  to  be  paid  therefor,  he  may  apply,  by 
petition,  for  the  assessment  of  his  damages.”  Of  course  the 
object  of  that  was,  that  the  city,  when  engaged  in  a great  public 
work,  should  be  notified,  at  least,  of  a claim  for  damages  before 
they  were  brought  into  court.  This  provision  peculiarly  applies 
to  this  case,  because  I do  not  think  it  entered  into  the  wildest  con- 
jecture of  those  men  that  they  were  going  to  injure  the  Essex  Com- 
pany. They  were  aware  that  they  were  going  to  take  some  water 
up  in  Sudbury ; but  if  I had  been  asked,  originally,  I should  have 
said  that  the  salmon  at  the  mouth  of  the  Merrimack,  who  were  de- 
prived of  their  necessary  quantity  of  fresh  water,  would  have  had 
as  good  ground  of  claim  against  the  city  for  the  taking  of  that 
water  as  the  Essex  Company.  And  such  I shall  endeavor  to  show 
is  the  law,  if  I can. 

Now,  in  this  case  there  is  no  evidence  whatever  of  any  demand 
made  upon  the  city,  or  any  statement  of  damages,  or  any  notifica- 
tion that  any  damages  were  expected.  I have  not  the  report  in 
the  books  — it  is  not  jTet  published  — but  it  appears  here,  from  the 
documents  put  in,  and  from  what  you  have  seen,  that  in  1872  the 
Water  Commissioners  of  the  City  of  Boston  undertook  to  open 
Farm  pond,  and  dig  a channel  from  that  pond  into  Lake  Cochitu- 
ate,  and  take  water,  and  they  did  so.  The  Wamesit  Power  Com- 
pany, believing  that  that  was  not  authorized  by  the  act  — that  they 
had  not  done  the  things  prescribed  by  the  act — brought  a suit  at 
common  law  against  the  Water  Commissioners  personally  for  a 
tort  — trespass  on  the  case  — and  that  matter  went  for  adjudica- 


Argument  of  Gen.  Butler  for  the  City.  133 


tion  to  the  Supreme  Court.  I hold  in  my  hand  a statement  of  the 
case.  The  city  came  in  and  assumed  the  act  of  the  Water  Com- 
missioners, and  undertook  to  justify  it,  and  to  show  that  the 
commissioners  had  authority  to  do  as  the}7  had  done.  They  ad- 
mitted that  they  had  received  the  water.  That  case  went  to  the 
Supreme  Court,  and,  on  an  agreed  statement  of  facts,  the  Court 
decided  that  that  proceeding  of  the  Water  Commissioners  was 
wholly  unauthorized  by  law,  and  that  they  were  individually  re- 
sponsible, and  gave  judgment  for  the  plaintiff.  That  opinion  is 
going  through  the  press  now,  and  I will  have  a copy  of  it  given  to 
the  commissioners  before  they  finally  decide  this  case. 

Commissioner  Russell.  Is  it  agreed  that  the  agreed  facts  in 
that  case  are  to  be  taken  as  facts  in  this  case  ? 

Mr.  Storrow.  Not  at  all.  We  do  not  know  anything  about 
that  case. 

Mr.  Butler.  Very  well.  I do  not  care  what  the  facts  were. 
The  facts  in  this  case  are  before  you.  If  they  do  not  want  all  the 
facts,  we  can  get  along  quite  as  well  without  them  as  th'ey  can,  I 
guess.  The  only  taking  that  has  been  proved  here  before  you 
was  by  the  surveyor,  Mr.  Frost,  who  swore  that  he  saw  the  water 
running,  in  1875,  in  the  old  ditch  dug  by  the  commissioners.  That 
is  the  only  way  in  which  he  had  seen  any  water  taken,  and 
that  is  the  only  evidence  that  any  had  been  taken,  prior  to  the 
filing  of  this  petition.  There  is  no  other  evidence  before  you,  ex- 
cept what  Mr.  Frost  said  last  night.  I am  willing  that  all  the 
facts  shall  come  in  ; but,  if  I am  to  be  restricted,  then  I choose  to 
restrict  the  other  side  to  the  evidence.  There  is  no  evidence 
before  you,  I repeat,  that  before  the  filing  of  this  petition  one  gill 
of  water  was  taken  by  the  city  except  from  this  dug-out  ro  m Farm 
pond.  But  that  was  done  by  the  Water  Commissioners  of  the 
city,  and  it  is  not  included  in  the  written  paper  which  was  filed 
here  in  January,  1875.  There  stands  the  fact  before  you.  So 
that  we  show  that  the  filing  of  this  petition  was  wholly  premature, 
and  that  the  remedy  is  not  by  this  action. 

To  show  that  you  are  to  pass  upon  these  questions  of  law,  I 
will  read  the  exceptions  in  the  case  of  Charles  P.  Talbot  and 
others  vs.  The  City  of  Boston. 

[Mr.  Storrow.  That  has  nothing  to  do  with  our  case.] 

“ Commonwealth  of  Massachusetts. 

Middlesex , ss.  December  Term , 1875. 

Chas.  P.  Talbot  et  als.  vs.  The  City  of  Boston. 

“ This  case  came  on  to  be  heard  before  the  judge,  without  jury, 
upon  a motion  made  by  the  petitioners  for  the  appointment  of  a 
committee  to  assess  damages  under  the  statute,  and  the  respond- 
ent claimed  that  before  the  motion  was  entertained  he  had  a 
right  to  be  heard  upon  the  issue  raised  by  the  answer.  This  claim 
the  court  overruled. 

“The  complainant  then  read  his  complaint,  and  put  in  papers 
marked  4 A,’  4 B,’  and  k C,’  hereto  annexed,  and  rested  his  case. 
It  was  admitted  that  the  petitioners  had  been  in  possession  of  the 


134 


Essex  Company. 


land  and  premises  described  in  their  petition,  and  also  of  the 
water  of  the  river  used  for  more  than  three  years  prior  to  the  filing 
of  petition  and  still  were  in  possession  thereof,  to  drive  mills 
on  said  lands,  and  that  the  Water  Board  of  the  City  of  Boston, 
claiming  to  act  as  the  agent  of  the- respondent,  and  to  act  under 
the  authority  of  the  Act  of  the  Legislature  of  1872,  but  without 
any  vote  of  the  City  Council,  between  the  19th  of  June  and  the  17th 
of  September  of  that  year,  had  conveyed,  by  a temporary  channel 
into  Lake  Cochituate,  more  than  sixteen  hundred  millions  of  gallons 
from  Sudbury  river,  and  that  respondent  since  the  date  and  record 
of  paper  marked  ‘ A,’  had  actually  conveyed  into  said  lake  several 
millions  of  gallons  from  said  river  for  use  of  city  ; but  it  was  de- 
nied that  the  petitioners  had  any  ownership  of  said  water  rights. 
Said  petition  and  the  answer  thereto  are  to  be  referred  to  as  a 
part  of  this  bill.” 

Mr.  Abbott.  Is  there  not  a statement  in  that  case  that  they 
took  the  water  again  in  January,  1875? 

Mr.  Butler.  Very  likely.  I do  not  mean  to  controvert  that. 
That  is  of  no  consequence  ; it  is  not  evidence. 

“ The  respondent  objected  to  the  insufficiency  of  the  evidence  on 
the  part  of  the  complainants  to  maintain  their  case,  offered  to 
prove  the  facts  alleged  in  his  answer,  and  claimed  that  the  issue 
raised  by  the  pleadings  should  be  at  first  determined  by  the  Court 
or  jury,  before  the  appointment  of  the  committee ; but  the  Court 
ruled  that  the  respondent  was  not  entitled,  at  this  stage  of  the 
case,  to  be  heard  to  establish  his  answer  by  any  facts,  or  to  main- 
tain the  allegations  which  show  the  want  of  title  in  the  complain- 
ants to  the  water  claimed  to  be  taken,  or  any  other  facts  in  an- 
swer to  the  complainants’  petition  to  show  why  it  could  not  be 
maintained,  and  that  it  was  the  duty  of  the  Court  to  appoint  a 
committee  without  any  hearing  on  the  part  of  the  respondent  on 
the  merits,  and  against  the  objection  of  the  respondent  appointed 
said  committee ; to  all  of  which  the  respondent  objected,  and  feel- 
ing aggrieved  at  the  ruling  and  action  of  the  Court,  excepts 
thereto,  praying  that  his  exceptions  may  be  allowed.” 

Therefore,  I say,  I suppose  you  will  feel  yourselves  called  upon 
to  pass  upon  these  questions  of  law,  so  far  as  to  report  them. 


Argument  of  Gen.  Butler  for  the  City. 

Now,  then,  the  first  objection  which  I make  to  the  assessment 
of  any  damages  in  this  case  is,  that  all  this  water,  much  more 
than  we  take,  was,  at  the  time  when  these  petitioners  took 
their  title  to  water,  in  1846,  granted  to  the  Middlesex  Canal 
Company,  for  a public  use,  and  was  then  in  a public  use, 
and  remained  subject  to  that  public  use  until  April,  1860, 
when  by  an  Act  of  the  Legislature,  following  a decree  of  the 
Court,  the  corporation  that  had  that  public  use,  for  non-user 
of  that  very  water,  had  their  charter  taken  away  from  them, 


Argument  of  Gen.  Butler. 


135 


forfeited ; and,  as  the  Act  said,  all  rights,  titles,  privileges 
and  immunities  they  had  were  seized  to  the  Commonwealth. 

Now,  I suppose  I need  not  stop  to  argue  the  fact,  that  the 
Middlesex  Canal,  from  the  time  it  began,  in  1804,  down  to 
1854,  when  it  stopped,  diverted  more  of  the  water  of  Con- 
cord river  than  we  take,  at  all  seasons  of  the  year  when 
any  question  of  damages  arises  here,  for  they  do  not  claim 
that  we  take  but  one-fifth  of  the  water  of  Concord  river, 
upon  any  showing ; and  it  is  proved  and  admitted  by  the 
facts  in  Heard  vs.  Talbot,  that  in  the  dry  season  a great  deal 
more,  almost  the  entire  water  of  Concord  river,  was  taken 
down  to  Boston.  True,  a portion  of  it  was  diverted  into 
the  Merrimack  river, — enough  to  fill  five  miles  of  the 
canal,  as  against  twenty.  That  is,  four-fifths  of  it  went  the 
other  way,  if  we  take  the  proportion  by  the  length  of  the 
canal ; but  as  the  fall  was  very  much  greater,  and  there  were 
a great  many  more  locks  down  to  Boston  bay,  of  course  a 
great  deal  more  than  even  the  proportion  determined  by  the 
length  in  miles  went  in  that  direction.  But  I need  not  stop 
to  discuss  for  a moment  the  question  how  much  was  di- 
verted, because  if  there  was  any  diverted,  that  raises  all  the 
questions  of  law  as  to  rightful  diversion. 

They  could  claim  no  adverse  use  of  this  water  under  a 
twenty  years’  user,  because  no  period  of  twenty  years  had 
elapsed-  between  the  time  when  the  canal  was  shut  down  by 
law  and  the  time  when  this  water  was  taken  by  the  city.  It 
is  true  that  the  canal  virtually  stopped  using  the  water  in 
the  fall  of  1851,  and  there  would  be  twenty  years  to  the 
fall  of  1872.  But  that  question  is  foreclosed  by  the  decision 
in  the  7th  of  Gray,  upon  the  facts  which  were  put  into  this 
case,  — Heard  vs.  Talbot,  page  113.  In  that  case,  Heard, 
the  meadow  owner,  came  in  and  said,  "The  canal  proprie- 
tors have  stopped  using  this  water,  wholly  disused  it ; they 
have  abandoned  their  canal,  and  have  sold  out  their  water- 
power to  Mr.  Talbot,  and  Mr.  Talbot  is  using  it  as  a mill- 
owner  only,  and  not  for  the  use  which  the  proprietors  of  the 
canal  paid  damages  to  the  meadow  owners  for,  and  therefore 
a jury  never  having  passed  upon  the  question  of  damages 
as  and  for  a mill,  the  mill-owners  now,  the  canal  being 
wholly  ended  and  done,  and  having  been  so  for  years,  we 
have  a right  to  proceed  against  the  mill-owners.”  And  the 
deed  of  the  Talbots  was  made  a part  of  the  case,  showing 
that  they  had  a quitclaim  deed. 

“ At  the  time  of  the  abandonment  of  the  use  of  their  canal,  and 
as  a part  of  the  winding  up  of  their  affairs,  the  proprietors  sold  ail 
their  land,  and  the  residue  of  the  water-power  by  them  unsold, 


136 


Essex  Company. 


raised  by  their  dam  aforesaid,  to  the  respondents,  by  deed  of  quit- 
claim, subject  expressly  to  the  reservation  of  all  easements  and 
services  necessary  for  or  incident  to  the  preservation  or  use  of 
said  canal  for  the  purpose  of  navigation,  and  of  all  the  rights  of 
the  public  therein,  until  the  same  shall  be  lawfully  discontinued  ; 
and  the  respondents  have,  since  that  sale,  maintained  and  kept  up 
the  water  by  said  dam  for  manufacturing  purposes,  and  claim  to 
use  the  same  in  such  manner  and  to  such  extent  as  may  suit  their 
convenience  for  such  manufacturing  purposes,  subject  to  said 
reserved  right  of  said  canal.” 

Those  were  the  agreed  facts.  Now,  when  the  Court 
came  to  deal  with  this,  they  said : — 

“ They  hold  their  title  to  the  mills  and  water-power  raised  by 
the  dam,  which  causes  the  land  of  the  complainant  to  be  flowed, 
under  the  grant  from  the  proprietors  of  the  Middlesex  Canal.  By 
the  deed  under  which  they  claim,  the  right  is  expressly  reserved 
to  the  grantors  to  appropriate  the  water  raised  by  the  dam  at  all 
times,  to  the  purpose  of  supplying  their  canal.  It  is  therefore  in 
the  right  of  the  canal  corporation,  and  subject  to  this  reservation, 
that  the  respondents  claim  to  use  and  enjoy  the  mill  privileges 
created  by  the  dam,  which  is  the  subject  of  this  complaint.  Unless, 
therefore,  the  corporation  have  surrendered  or  lost  the  right  to 
keep  up  and  maintain  this  dam,  it  having  been  already  settled  in 
5 Met.,  81,  that  the  complainant  has  no  claim  for  damages  on 
account  thereof  against  the  corporation,  it  would  seem  to  follow 
that  he  has  none  against  these  respondents,  who  claim  under  the 
corporation. 

“ The  sole  ground  on  .which  he  now  rests  his  case  is,  that  the 
canal  corporation  have,  since  the  year  1851,  wholly  disused  their 
canal,  filled  up  portions  of  it,  and  suffered  it  to  remain  in  such 
condition  as  to  be  entirely  unfit  for  use.  The  argument  is  that  the 
right  of  erecting  and  maintaining  a dam  was  granted  to  the  cor- 
poration, mainly  for  the  purpose  of  enabling  them  to  raise  water 
for  the  supply  of  their  canal ; and  the  power  to  hold  mills  was 
wholly  incidental  to,  and  dependent  on  the  appropriation  and  use 
of  the  water  raised  by  the  dam,  for  the  great  object  for  which  the 
corporation  was  established  and  their  franchise  granted  ; that  the 
corporation,  having  abandoned  the  use  of  the  canal,  and  ceased  to 
supply  it  with  water,  can  no  longer  claim  the  right  under  their 
charter  to  maintain  the  dam. 

“ Admitting,  for  the  sake  of  giving  the  full  force  to  this  argu- 
ment, the  correctness  of  the  premises  upon  which  it  rests,  we  do 
not  think  the  conclusion  drawn  from  them  legitimately  follows ; 
an  essential  link  in  the  chain  of  reasoning  is  wanting.  The  argu- 
ment assumes  that  the  neglect  or  omission  to  use  a right  granted  to 
a corporation  as  part  of  their  franchise,  for  the  specific  purpose  for 
which  it  was  given,  necessarily  works  a forfeiture  of  the  right 
itself.  But  this  is  not  so,  unless  the  right  is  expressly  made  con- 
ditional on  the  use,  which  is  not  done  in  the  act  incorporating  the 
proprietors  of  the  canal.  The  right  is  given  absolutely,  and  with- 


Argument  of  Gen.  Butler. 


137 


out  expression  of  condition  or  limitation.  The  corporation  are 
still  in  existence.  But  the  rights  and  powers  conferred  on  them 
b}T  law,  and  comprehended  within  the  broad  terms  of  their  franchise, 
have  never  yet  been  legally  forfeited  or  extinguished.  Nor  can 
they  be,  except  by  a surrender  of  a charter,  and  its  acceptance  by 
the  government,  or  by  a forfeiture  declared  by  the  judgment  of  a 
competent  tribunal,  or  by  proceedings  under  St.  1852,  c.  55. 

“ In  the  absence  of  express  conditions,  in  an  act  of  incorporation, 
by  which  corporate  rights  and  powers  are  made  to  depend  on  their 
due  exercise,  a non-user  or  mis-user  of  them  does  not  operate  as  a 
surrender  or  forfeiture  of  the  charter.  Although  the  disuse  of  the 
canal,  and  its  abandonment  by  the  corporation,  may  be  a gross 
disregard  of  the  duty  imposed  on  them  by  law,  and  an  essential 
violation  of  the  terms  and  conditions  implied  from  the  contract 
entered  into  with  the  government  by  the  acceptance  of  the  charter, 
and  upon  due  proceedings  had,  might  be  sufficient  ground  upon 
which  to  decree  a forfeiture  of  all  their  corporate  rights  and  privi- 
leges, they  do  not  constitute  any  valid  ground  upon  which  the 
exercise  by  the  corporation  of  any  of  the  powers  conferred  by  their 
charter  can  be  defeated  or  denied  by  third  persons  in  collateral 
proceedings.  This  results  from  the  very  nature  of  an  act  of  incor- 
poration. It  is  not  a contract  between  the  corporate  body  on  the 
one  hand  and  individuals  whose  rights  and  interests  may  be  affected 
by  the  exercise  of  its  powers  on  the  other.  It  is  a compact  be- 
tween the  corporation  and  the  government  from  which  they  derive 
their  powers.  Individuals,  therefore,  cannot  take  it  upon  them- 
selves, in  the  assertion  of  their  private  rights,  to  insist  on  breaches 
of  the  contract  by  the  corporation  as  a ground  for  resisting  or  ^de- 
nying  the  exercise  of  a corporate  power.  That  can  be  done  o nly 
by  the  government  with  which  the  contract  was  made,  and  in  pro- 
ceedings duly  instituted  against  the  corporation.  It  would  not 
only  be  a great  anomaly  to  allow  persons  not  partial  to  a contract 
to  insist  on  its  breach  and  enforce  a penalty  for  its  violation  ; but 
it  would  be  against  public  policy,  and  lead  to  confusion  of  rights, 
if  corporate  powers  and  privileges  could  be  disputed  and  defeated 
by  every  person  who  might  be  aggrieved  by  their  exercise.  There- 
fore it  has  been  often  held  that  a cause  of  forfeiture,  however  great, 
cannot  be  taken  advantage  of  or  enforced  against  corporations  col- 
laterally or  incidentally,  or  in  any  other  mode  than  by  a direct 
proceeding  for  that  object  in  behalf  of  the  government. — Angell 
& Ames  on  Corp.,  § 777,  and  cases  cited.  Boston  Glass  Manufac- 
tory vs.  Langdon,  24, 49.  Quincy  Canal  vs.  Newcomb,  7 Met.,  276. 

u It  follows  from  these  principles  that  the  franchise  of  the  pro- 
prietors of  the  Middlesex  Canal,  which  includes  the  right  of  keep- 
ing up  and  maintaining  the  dam  which  flows  the  land  of  the 
complainant,  being  still  in  existence,  it  is  not  competent  for  him 
in  this  proceeding  to  show  a non-user  or  abandonment  of  the  canal 
as  a ground  for  denying  the  right  of  the  corporation  to  continue  the 
dam  ; and  as  the  respondents  hold  their  title  under  the  corporation, 
and  justify  the  flowing  of  the  complainant’s  land,  under  the  corpo- 
rate franchise,  there  is  no  ground  for  sustaining  the  present  com- 
plaint, under  the  mill  act,  against  the  respondents.  It  is  a 


138 


Essex  Company. 


sufficient  answer  to  this  suit  that  the  corporation  have  the  legal 
right  to  maintain  the  dam  as  against  the  complainant,  without  pay- 
ment of  damages.  This  view  of  the  case  renders  it  unnecessary  to 
determine  the  question  discussed  at  the  bar,  whether  the  right  to 
purchase  and  hold  mills,  which  was  conferred  oil  the  corporation 
by  the  act  of  1798,  was  the  grant  of  an  additional  and  distinct 
franchise  of  right,  which  may  be  used  and  enjoyed  by  the  corpora- 
tion or  their  grantees,  separately  from,  and  independently  of,  the 
building  and  maintaining  of  a canal ; or  whether  it  was  merely 
secondary  and  subordinate  to  the  making  of  a canal  and  the 
raising  of  water  for  its  supply,  and  was  to  cease  and  become 
extinguished  when  the  right  of  keeping  and  using  the  canal  should 
be  surrendered  or  forfeited.  Nor  have  we  occasion  to  decide 
whether  the  forfeiture  or  extinguishment  of  the  charter  of  the  cor- 
poration would  operate  to  defeat  the  title  of  the  grantees  of  the 
corporation  to  the  mills  and  water-power  which  had  been  obtained 
by  the  corporation  lawfully,  and  conveyed  to  the  respondents  by 
deeds  valid  at  the  time  they  were  made,  by  which  the  title  became 
vested  before  such  extinguishment  or  forfeiture  took  place.  Their- e 
are  important  and  interesting  questions  ; but  it  will  be  quite  time 
enough  to  settle  them  when  the  exigency  of  the  case  shall  require, 
in  order  to  adjudicate  upon  the  rights  of  parties,  that  they  should 
be  judicially  determined. 

ComplainanCnonsuit.” 

It  is  time  enough  to  decide  these  questions  when  they 
arise. 

Therefore,  I say  there  can  be  no  claim  of  any  twenty  years’ 
user  against  the  corporation,  because  the  Court  have  distinctly 
settled  that  they  have  a right  to  keep  them  up  or  let  them 
down,  or  do  whatever  they  please  with  them. 

Mr.  Merwin.  In  what  year  was  that  decision  ? 

Gen.  Butler.  That  was  in  1856.  I shall  have  occasion 
to  call  the  attention  of  the  commissioners  to  the  point,  that 
a mill-owner  below  acquires  no  right  in  the  water  above  on 
account  of  a mill  above,  and  the  fact  that  he  owns  the 
mill. 

Now,  then,  I say  that  at  the  time  that  this  act,  granting  the 
power  to  the  Essex  Company,  was  passed,  and  at  the  time 
they  went  into  active  operation,  all  this  water  was  diverted 
to  a public  use,  and  remained  diverted  to  a public  use  ever 
since,  so  far  as  they  are  concerned ; and  therefore  they  can- 
not say  that  they  are  damnified  by  the  Commonwealth’s  hav- 
ing the  right  to  it,  and  afterwards  granting  it  to  the  City  of 
Boston,  subject  to  paying  the  damages.  If  it  had  not  been 
for  that  grant,  it  is  very  clear  that  the  City  of  Boston  could 
not  have  taken  the  Sudbury  river.  And  there,  if  your 
Honors  hold  with  me,  seems  to  be  an  end  of  this  case,  — be- 
cause, I take  it,  nothing  is  clearer  than  that  if  the  title  of  this 
water  is  in  the  public,  it  is  not  in  the  Essex  Company. 


Argument  of  Gen.  Butler. 


139 


We  are  now  brought  to  the  next  question  in  this  case  — 
for  I propose  rather  to  indicate  the  questions  than  to  argue 
them.  The  next  question  in  the  case  is,  "What  are  the 
rights  of  the  Essex  Company,  independent  of  this  question 
about  their  subrogation  to  the  Middlesex  Canal?”  They 
were  granted  the  right  to  create  a water-power — a very 
happy  phrase,  I agree  with  my  brother,  — to  create  a 
water-power  on  the  Merrimack  river,  subject,  however,  to 
the  rights  of  navigation  in  that  river ; because  their  charter 
provides  that  they  shall  keep  a canal  and  locks  around  their 
dam,  — and  no  dam  has  ever  yet  been  granted  on  the  Merri- 
mack river,  either  in  the  State  of  New  Hampshire  or  the 
State  of  Massachusetts,  we  say,  that  has  not  a canal  and  locks 
around  it,  — so  that  in  the  olden  time,  the  Middlesex  Canal, 
coming  in  around  our  dam,  used  to  send  its  boats  to  Concord. 
Neither  State  has  ever  treated  this  river  other  than  as  a navi- 
gable river. 

The  original  act  incorporating  the  Essex  Company  made 
them  a corporation,  " For  the  purpose  of  constructing  a dam 
across  the  Merrimack  river,  and  constructing  one  or  more 
locks  and  canals  in  connection  with  said  dam,  to  remove  ob- 
structions in  said  river  by  falls  and  rapids,  from  Hunt’s  falls 
to  the  mouth  of  the  Shawshine  river,  and  to  create  a water- 
power to  use,  or  sell,  or  lease  to  other  persons  or  corpora- 
tions, to  use  for  manufacturing  and  mechanical  purposes.” 

That  was  the  way  that  this  act  was  got  through  the  Legis- 
lature, evidently.  People  always  put  their  best  foot  fore- 
most, and  the  best  hold  of  these  people  upon  the  Legislature 
was  to  say  that  they  wanted  to  improve  navigation  ou  the 
Merrimack  river,  and  remove  obstructions  between  Hunt’s 
falls  and  the  Shawshine ; and  then  they  wanted  to  put  in 
that  they  wished  to  create  a little  more  water-power  to  sell, 
— that  they  would  have  more  than  was  necessary  for  naviga- 
tion, and  would  like  to  sell  a little.  And  then  that  same  act 
authorizes  this  corporation  to  maintain  a dam  across  said 
river  at 

“ Some  point  in  said  river  between  said  falls,  and  all  such  canals 
and  locks  as  may  be  necessary  for  the  purposes  aforesaid ; and  for 
the  purpose  of  making  said  dam,  and  constructing  the  main  canal 
for  navigation  or  transports,  maj7  take,  occupy  and  enclose  any  of 
the  lands  adjoining  said  canals  and  locks  or  dam  which  may  be 
necessary  for  building  or  repairing  the  same,  for  towing-paths  and 
other  necessary  purposes,  not  exceeding  twenty  feet  on  each  side  of 
said  canal  or  locks,  and  may  blow  up  or  remove  any  rocks  in  said 
river,  and  dig  in  any  of  the  lands  near  to  said  river  in  which  it  may 
be  necessary  to  pass  said  main  canal : provided , that  said  corpora- 
tion shall  not  obstruct  the  passage  of  rafts,  masts  or  floats  of  timber 


140 


Essex  Company. 


down  said  river,  earlier  than  the  1st  day  of  June,  in  building  said 
dam,  nor  keep  the  same  obstructed  for  a longer  time  than  five 
months  before  the  opening  of  said  canal  for  the  passage  thereof.” 

And  then,  — 

u For  the  purpose  of  reimbursing  said  corporation”  (that  was 
the  way  they  were  to  get  paid)  “ in  part  for  the  cost  and  expense 
of  keeping  said  locks  and  canals  in  repair,  and  in  tending  the 
same,  and  in  clearing  the  passages  necessary  for  the  transit  of 
boats  and  merchandise  and  other  articles  through  said  canal,  the 
following  toll  is  hereby  established  and  granted  to  said  corpora- 
tion.” 

And  then  follows  the  toll  on  all  manner  of  articles  ; and 
then  a provision  was  made  how  long  the  locks  should  he,  — 
90  feet  long  and  20  feet  wide,  — all  of  which  never  has  been 
altered ; but,  on  the  contrary,  when  the  Legislature  allowed 
them  to  spend  their  money  up  to  Winnipiseogee,  they  took 
care  to  put  in  a provision  (which  my  brother  has  taken  care 
not  to  print),  that  they  may  spend 

“ Such  sums  of  money  as  the  said  company  may  deem  ex- 
pedient in  improving  the  power  of  the  Merrimack  river ; and  for 
this  purpose  the  said  company  may,  with  the  consent  of  the  State 
of  New  Hampshire,  acquire  by  purchase  and  hold  real  and  personal 
property  within  the  limits  of  that  State.” 

“ The  time  during  which  the  said  company  are  authorized  to 
obstruct  the  passage  of  rafts,  masts  or  floats  of  timber  down  the 
said  river  is  hereby  extended  for  a period  of  one  year : provided, 
however , that  during  the  said  year  it  shall  be  the  duty  of  the  said 
company  to  provide  and  keep  in  readiness  for  such  purposes  suffi- 
cient men  and  teams  to  transport  all  such  rafts,  masts  and  floats 
of  timber  around  such  obstruction  in  the  river,  so  as  to  cause  as 
little  delay  as  possible  in  the  navigation  thereof.” 

And  any  person  who  shall  suffer  any  damage  by  reason  of 
neglect  shall  have  his  remedy. 

I agree  perfectly  that  it  was  simply  a " tub  thrown  to  the 
whale  ; ” but  it  shows  precisely  that  the  Commonwealth  holds 
this  to  be  a navigable  river;  and  as  all  of  your  Honors 
know,  there  are  locks  around  the  falls  at  Lowell,  and  so  on 
up  to  Concord,  N.  H. 

Now,  then,  what  are  the  rights  of  a person  as  riparian 
proprietor,  getting  no  other  grant  from  the  Commonwealth, 
or  what  are  the  rights  of  a company  as  riparian  proprietor, 
in  creating  a water-power  on  a navigable  river,  or  creating 
slackwater  navigation  on  a navigable  river?  In  the  first 
place,  do  they  get  any  more  rights  than  any  other  riparian 
proprietor?  1 think  not,  but  fewer.  What  are  the  rights 
of  a riparian  proprietor  on  a navigable  stream  ? Are  they 
they  same,  or  other  and  different  from  the  rights  of  a riparian 


Argument  of  Gen.  Butler. 


141 


proprietor  on  streams  not  navigable  ? They  are  in  many  re- 
gards other  and  different.  In  the  first  place,  on  a navigable 
stream,  a riparian  proprietor  cannot  say  to  any  man,  "You 
shall  not  go.  up  and  down  my  land,  and  you  shall  not  land  on 
my  laud  in  any  case  of  necessity  or  convenience.”  That  is 
one  of  the  different  rights  of  a man  holding  land  on  a navi- 
gable stream.  You  cannot  obstruct  that  stream  as  you  can 
an  unnavigable  stream  on  your  own  land.  The  question 
never  yet  has  been  determined  in  this  Commonwealth,  as  to 
the  rights  to  the  middle  of  the  stream,  in  a navigable  stream, 
or  whether  those  rights  do  not  stop  with  the  shore,  at  the 
point  where  it  is  navigable.  Now,  then,  building  a dam  by 
permission,  to  still  keep  the  river  navigable  and  to  improve 
its  navigability,  does  the  riparian  proprietor,  having  got  that 
permission,  for  he  could  not  do  it  without  (on  any  other 
stream  he  could  have  done  it  without  any  permission)  ; hav- 
ing got  that  permission  to  obstruct  navigation,  can  he  say  to 
every  riparian  proprietor  on  every  tributary  of  that  stream, 
through  its  whole  length,  from  the  mountain  spring  that  be- 
gins it,  down  to  his  dam,  "You  cannot  divert  any  water  from 
this  river  without  paying  me  damages”?  If  the  man  that 
has  got  the  dam,  or  the  company  that  has  got  the  dam  on  the 
river,  has  that  right,  every  other  riparian  proprietor  has  the 
same  right.  And  if  we  proceed  here  upon  the  theory  that 
wherever  there  is  an  invasion  of  right  there  is  a remedy,  then 
every  man  that  owns  land  on  this  stream,  from  the  city’s  dam 
at  Saxonville,  down  to  Newbury  port  and  Plum  Island,  has 
his  right  of  action  for  the  water  that  is  diverted  from  Sud- 
bury river ; and  not  only  that,  but,  theoretically,  he  has  a 
right  of  action  for  every  drop  that  is  taken  beyond  the 
necessary  use,  — for  I suppose  I state  correctly  when  I say, 
that  all  the  rights  at  common  law  that  a riparian  proprietor 
above  has,  with  respect  to  a lower  proprietor,  are  to  use  so 
much  of  the  water  as  may  be  necessary  for  his  use,  with  due 
economy  and  care,  and  to  restore  it  when  used  to  the  stream, 
for  the  use  of  the  proprietor  below,  less  only  what  is  neces- 
sarily expended  in  that  economical  and  proper  use.  Those  I 
suppose  everybody  will  agree  are  the  rights  of  riparian  pro- 
prietors above  and  below  on  a stream.  I claim  further,  — 
and  I am  happy  to  say  that  I have  now  got  into  something 
that  has  been  settled  in  this  Commonwealth, — I claim  that 
every  man  on  a stream,  whether  be  owms  land  or  not,  — the 
inhabitants  on  a stream,  — have  a right  to  use  the  water  for 
domestic  purposes.  My  statement  of  rights  would  be  like 
this  : That  the  first  right  to  wrater  is  for  drink  and  domestic 

purposes,  and  that  I,  as  an  inhabitant  of  this  Commonwealth, 
have  a right  to  go  down  to  the  bank  of  every  navigable 


142 


Essex  Company. 


stream,  at  least,  or  to  go  down  to  any  stream  where  I can 
get  without  trespassing  upon  land  of  my  neighbor,  and  dip 
my  cup  in  and  take  up  as  much  water  as  I want  to  drink, 
and  dip  my  pail  in  and  take  water  to  water  my  horse,  or  fill 
my  tub  and  wash  my  shirt,  and  that  I am  not  to  be  sued  by 
any  mill-owner  for  taking  so  much  of  his  water.  That  I 
claim  is  the  first  right  of  any  man.  The  second  right  is  the 
right  of  navigation, — being  a natural  right, — the  right  of 
transportation.  The  third  right  is  the  right  of  the  party  who 
for  mill-water  purposes  stores  up  the  water.  Now,  I do  not 
claim,  Messrs.  Commissioners,  that  I have  any  right  to  any 
water  stored  up  by  anybody  else ; and,  therefore,  my  right 
as  an  upper  riparian  proprietor,  or  the  natural  right  which  I 
claim,  or  the  navigable  right  which  I claim,  only  affects  the 
natural  run  of  the  stream.  If  anybody  has  built  a dam  and 
stored  up  the  water  on  his  premises,  I have  no  more  right  to 
it  than  I have  a right  to  the  trout  that  he  puts  in  the  water 
and  keeps  there.  But  I have  an  equal  right  to  the  trout  that 
run  in  the  natural  stream,  as  I have  an  equal  right  to  the 
water  in  the  natural  stream.  Therefore,  you  have  no  right 
to  take  more  than  the  natural  run  of  the  river. 

Now,  then,  if  you  go  with  me,  — I don’t  ask  you  to  go  as 
far  as  these  last  propositions,  for  it  is  not  necessary  for  this 
case  ; but  at  the  same  time  I hope  to  see  them  established, 
and  it  is  very  necessary  to  have  them  established  for  the  ben- 
efit of  the  citizens  of  the  Commonwealth,  for  the  cities 
and  towns  of  this  Commonwealth  are  going  to  need  the 
w^ater  for  common  use,  and  if  they  have  got  to  buy  the  nat- 
ural run  of  the  stream  of  every  man  who  has  got  a mill, 
there  simply  will  be  trouble  with  mill-owners,  if  they  in- 
sist upon  their  rights, — and  I think  it  is  best  for  all  that 
they  should  not.  And,  fortunately  for  us  all,  the  amount 
used  for  domestic  purposes  is  very  small  compared  with  the 
amount  required  to  run  machinery. 

Well,  now,  where  is  the  limit  of  the  use  of  these  rights? 
Admitting  that  these  riparian  proprietors,  with  their  dam  at 
Essex,  have  a right  to  the  water,  I insist  that  they  have  no 
right  to  complain  at  all  of  any  water  taken  above,  because 
they  are  upon  a navigable  stream,  where  all  have  equal 
rights  to  the  use  of  the  water,  like  the  great  ponds  of  the 
Commonwealth.  They  are  upon  a navigable  stream,  and 
they  have  no  right  to  complain  of  a riparian  proprietor 
through  whose  land  a little  brook  runs,  from  one  to  another, 
— no  right  to  complain  that  the  law  which  is  made  for  the 
one  is  not  applicable  to  the  other.  As  I say,  I am  simply 
indicating  the  points,  without  stopping  to  argue  them. 

I come  next  to  see  where, — if  they  have  any  rights, — 


Argument  of  Gen.  Butler. 


143 


where  is  the  limit  to  the  exercise  of  the  right  of  reclamation 
of  damages  for  interference  ; because  it  would  be  monstrous 
to  agree  to  the  proposition  that  every  man  can  have  this 
action. 

Mr.  Abbott.  Every  man  who  is  injured  — 

Gen.  Butler.  Every  man  is  theoretically  injured  by  the 
taking  of  the  water.  I think  we  shall  have  to  come  to  that; 
brother  Abbott,  at  last,  that  a man  must  be  appreciably  in- 
jured before  he  can  complain.  That  is  my  next  proposition. 
That  is  the  very  point  I am  coming  to,  — that  he  must  be 
appreciably  injured ; that  he  shall  be  enabled  by  some  in- 
strument known  to  human  skill  to  measure  his  injury; 
that  he  shall  be  able  to  know  it  by  night  or  by  day ; and 
both  the  engineer  and  Mr.  Storrow  admitted  that  there  was 
no  human  instrumentality  at  present  by  which  they  could 
measure  the  amount  of  this  water,  or  determine  whether  it 
was  there  or  away. 

This  whole  question  has  been  very  much  discussed  in  the 
seventh  of  Barr’s  Pennsylvania  Reports,  page  348,  in  the 
case  of  Mayor  vs.  The  Commissioners  of  Spring  Garden. 
The  syllabus  of  the  case  is  very  much  stronger  than  I have 
put  the  law  : — 

“ The  grant  by  the  Legislature  of  an  exclusive  right  to  the 
water-power  of  a navigable  stream  does  not  pass  a title  to  the 
corpus  of  the  water,  or  prevent  its  use  for  the  ordinary  purposes 
of  life.” 

“ Hence,  where  the  Legislature  granted  the  privilege  and  title 
to  all  the  water-power  of  the  river  Schuylkill,  and  made  a subse- 
quent grant  to  the  districts  of  Spring  Garden  and  Northern  Lib- 
erties, of  the  right  to  erect  works  and  supply  their  inhabitants 
with  the  water  from  the  river  — and  such  works  were  erected  to 
be  propelled  by  steam  — such  grant  and  the  acts  done  thereunder 
are  not  in  violation  of  the  previous  grant  of  the  water-power.” 

There  is  where  the  Legislature,  by  express  enactment, 
granted  the  exclusive  right,  — which  they  have  not  done 
here,  by  any  means. 

“ The  bill  set  forth  that  Robert  Kennedy  was  authorized  by  the 
act  of  1807,  to  erect  a mill-race  near  the  falls  of  Schuylkill,  and 
draw  so  much  water  from  the  river  as  might  be  necessary  for  a 
grist  and  saw  mill,  provided  that  if  the  City  of  Philadelphia 
should  at  any  time  be  desirous  of  erecting  works  to  conduct  the 
water  of  the  river  into  the  city,  that  right  was  reserved ; but  if 
such  erections  should  injure  the  works  of  Kennedy,  his  expenses, 
with  seventy-five  per  cent,  addition,  should  be  paid  on  his  con- 
veying his  right  to  the  premises.  In  1810,  Kennedy  conveyed  all 
his  water-right  to  Josiah  White  in  fee.  That  by  the  acts  of  1815 
and  1816  the  corporation  of  the  Schuylkill  Navigation  Co.  were 


144 


Essex  Company. 


incorporated,  and  authorized  to  improve  the  navigation  of  the 
river  (between  points,  including  that  at  which  the  present  cause 
of  the  controvers}^  is  situated)  ; and  that  corporation  it  was 
thereby  declared  4 should  have  the  privilege,  and  be  entitled  to  all 
the  water-power  from  the  said  river,  sluices,  or  canals  ; to  propel 
such  machinery  as  they  may  think  proper  to  erect  on  the  land  ; or 
they  may  sell  in  fee  simple,  lease,  or  rent  for  one  or  more  years, 
the  said  water-power  to  any  person  or  persons,  to  be  used  in  such 
manner,  and  upon  such  terms,  as  they  may  think  proper.’  ” 

But  you  will  see  the  difference. 

“ Provided  it  shall  be  so  done,  that  it  shall  not,  at  any  time, 
impede  or  interrupt  the  navigation  ; and  the  company  shall  apply 
the  money  arising  from  the  sale  to  the  improvement  of  the  navi- 
gation, or  repairing  any  damage  that  the  locks  or  dams  might  have 
sustained. 

“ That,  by  the  articles  of  agreement  between  the  Navigation 
Company  and  Jo&iah  White,  the  latter  was  authorized  to  erect  a 
dam  at  the  falls,  and  was  vested  with  all  the  right  to  all  the  water- 
power there  created,  which  the  company  was  entitled  to  grant ; 
provided  it  was  so  drawn  off  as  not  to  impede  the  navigation  of 
the  river  or  canal.  That  a part  of  White’s  interest  became  vested 
in  Gillingham,  both  of  whom,  in  1819,  conveyed  to  the  corpor- 
ation (plaintiffs),  in  consideration  of  $150,000,  all  their  right  of 
water-power  at  the  falls,  and  generally  of  and  in  all  the  water- 
power of  the  river  and  all  the  rights  acquired  from  the  Navigation 
Company. 

“ That,  in  the  same  year,  the  plaintiffs  made  an  agreement  with 
the  Navigation  Company,  reciting  that  plaintiffs  were  desirous  of 
increasing  their  supply  of  water  for  the  use  of  the  city,  and  for 
the  purpose  of  vending  the  same  to  the  adjoining  districts,  by 
means  of  an  enlarged  power  to  be  obtained  by  a dam  to  be  built 
near  the  water  works,  and  that  the  Navigation  Company  were 
willing  to  give  effect  to  the  same.  It  was,  therefore,  agreed  that 
the  plaintiffs  would  erect  a dam  at  Fairmount,  to  raise  the  water 
as  high  as  was  contemplated  under  the  agreement  with  White,  and 
that  the  Navigation  Company  were  authorized  to  draw  off  as 
much  as  they  thought  necessary  for  the  navigation,  and  that  the 
plaintiffs  were  to  enjoy  the  residue  for  the  purposes  mentioned, 
but  not  to  sell,  lease  or  dispose  of  any  water-power,  nor  to  use  the 
water-power  for  manufacturing  purposes.  The  plaintiffs  also 
agreed  to  erect  guard-locks,  chambers,  tail-race,  toll-house,  etc., 
for  the  company,  and  pay  all  damages  occasioned  by  the  erecting . 
of  the  works  at  Fairmount. 

“ That,  in  the  year  1824,  in  consideration  of  $26,000  paid  to 
the  Navigation  Company^  the  plaintiffs  purchased  of  them  the 
right  to  take  all  the  water  and  water-power  that  remained,  after 
drawing  off  from  the  river  so  much  as  was  required  for  the  naviga- 
tion, and  to  use  and  sell  the  same  without  restriction. 

“ That,  upon  the  faith  of  these  agreements,  the  plaintiffs  had  ex 
pended  in  the  erection  of  the  dam,  machinery,  etc.,  to  supply  the 
city  and  adjoining  districts  with  water,  upwards  of  $1,000,000. 


Argument  of  Gen.  Butler. 


145 


And  that,  under  the  authority  of  Acts  of  Assembly,  they  had  con- 
tracted with  the  two  corporations  defendants  to  supply  their  in- 
habitants with  water,  and  had  complied  with  their  agreements ; 
but  that  the  defendants  had  employed  workmen,  collected  materi- 
als, and  were  about  erecting  buildings  and  machinery  to  take  and 
use  the  water  and  water-power,  of  and  from  the  pool  formed  by 
the  dam  at  Fairmount.  That  the  Act  of  1843,  under  which  they 
pretended  a right,  gave  no  such  authority,  because  of  the  clause 
saving  all  the  rights  of  the  Schuylkill  Navigation  Company,  and 
because  no  act  could  authorize  the  taking  and  use  of  the  water 
without  the  plaintiff’s  consent,  since  it  would  be  a violation  of 
the  tenth  section  of  this  constitution.” 

The  answers  set  up  that  the  defendants  were  simply  de- 
sirous of  using  the  water  for  the  Northern  Liberties  and 
Spring  Garden ; and  that  perhaps  is  sufficient  to  enable  the 
opinion  of  the  court  to  be  distinctly  understood. 

“ His  Honor,  in  ordering  the  injunction,  said,  with  reference  to 
the  title  of  the  complainants  to  the  exclusive  use  of  the  water , 
after  stating  the  general  rules  as  to  the  rights  of  riparian  owners 
of  private  streams,  and  that,  though  a public  highway,  the  State 
could  not  in  such  case  divert  the  water  to  injure  the  owners  of  the 
soil.  But  in  the  case  under  consideration  the  State  owned  the  bed 
of  the  river  at  Fairmount  dam  and  far  above  it,  and,  according  to 
the  principles  already  laid  down,  could  originally  have  granted  to 
any  individual,  or  number  of  individuals,  the  exclusive  right  to 
navigate  said  river,  which  would  have  been  the  greatest  privation 
to  the  public,  in  contemplation  of  law,  at  least,  that  can  well  be 
imagined ; and,  if  so,  it  cannot  be  questioned  that  she  may  grant 
the  whole  use  of  the  water  for  propelling  machinery  and  putting 
manufactories  into  operation,  or  for  supplying  the  citizens  of 
Philadelphia  with  water  for  drinking,  washing,  and  for  all  culinary 
purposes,  reserving  to  the  public  a sufficient  portion  thereof  for  all 
the  purposes  of  navigation.” 

Then  an  appeal  was  taken  to  another  court,  and  it  was 
very  fully  and  thoroughly  argued  by  lawyers  of  such  fame 
that  the  difficulty  of  puzzling  a Philadelphia  lawyer  has 
passed  into  a proverb,  — for  the  appellants  by  J.  M.  Read 
and  Mr.  Dallas ; for  the  appellees  by  Ormstead  and  Mere- 
dith. 

Gibson  was  the  Chief  Justice,  — and  when  Chief  Justice 
Gibson  speaks  he  generally  speaks  as  much  law  as  anybody. 
He  says  : — 

“ Notwithstanding  the  range  which  the  argument  has  taken,  the 
ground  of  this  controversy  lies  in  a narrow  space.  Instead  of 
depending  on  general  or  constitutional  law,  the  question  before  us 
depends  on  the  interpretation  of  a short  and  isolated  section  of 
the  statutes  ; but  the  quotation  from  the  civilians  and  from  Lord 


146 


Essex  Company. 


Hale  bear  strongly  upon  it.  They  establish  that  the  use  of  water, 
flowing  in  its  natural  channel,  like  the  use  of  heat,  light,  or  air, 
has  been  held  by  every  civilized  nation,  from  the  earliest  times,  to 
be  common  by  the  law  of  nature,  and  not  merely  public,  like  the 
use  of  a river  or  a park,  which  is  subject  to  municipal  regulation 
by  the  law  of  the  place.  They  establish  also  that  the  domestic 
uses  of  water  are  its  necessary  and  primary  ones.  Air  is  not 
more  indispensable  to  the  support  of  animal  or  vegetable  life. 
Water  is  borne  by  the  air,  in  the  form  of  vapor,  to  the  remotest 
regions  of  the  earth  for  the  free  use  and  common  refreshment  of 
mankind  ; and  to  interdict  the  use  of  the  one  within  any  particular 
locality  would  be  as  monstrous  and  subversive  of  the  scheme  of 
animal  existence  as  it  would  be  to  interdict  the  use  of  the  other. 
It  is  only  when  it  has  been  received  oa  the  surface  of  the  earth, 
not  while  it  is  falling  from  the  clouds,  that  it  can  be  made  to 
minister  to  the  ordinary  wants  of  life ; and,  if  it  be  common 
at  first,  it  must  continue  to  be  so  while  it  is  returning  by  its 
natural  channels  to  the  ocean.  No  one,  therefore,  can  have  an 
exclusive  right  to  the  aggregated  drops  that  compose  the  masses 
thus  flowing,  without  contravening  one  of  the  most  peremptory 
laws  of  nature.  Water  may  be  exclusively  appropriated  by  being 
separated  from  the  mass  of  the  stream  and  confined  in  tanks  or 
trunks  ; but  then  it  would  have  ceased  to  be  aqua  projluens. 

“ It  does  uot  cease  to  be  so,  however,  by  being  merely  impeded 
in  its  natural  channel  by  a dam.  That  a law  of  nature  may  be 
displaced  by  even  legislative  might  has  been  stoutly  denied  by 
high  authority,  though  perhaps  without  conclusive  effect  where 
the  question  is  one  of  right  and  not  of  power ; but  where  a court 
has  to  deal  with  a question  of  construction,  and  not  of  power,  the 
protection  of  such  a right  from  violation  by  superior  force  must 
always  turn  the  scale.  Nothing  but  the  most  clear  and  imperative 
expression  of  the  legislative  will  could  prevent  it.  What  we  have 
to  do,  then,  is  to  see  whether  the  LegislatureShas  indisputably  de- 
barred all  mankind  from  drawing  water  from  the  Schuylkill  river, 
except  by  permission  of  the  Schuylkill  Navigation  Company,  or 
the  city  of  Philadelphia,  its  alienee. 

“ Now,  a grant  of  water-powder  is  not  a grant  of  the  water  for  any- 
thing else  than  the  propulsion  of  machinery  ; and  it  consequently 
does  not  exclude  the  use  of  it  by  any  one  else,  in  a way  which  does 
not  injure  or  decrease  the  pow’er.  It  is  not  a grant  of  property  in 
the  corpus  of  the  water  as  a chattel ; and  this  does  not  seem  to 
have  been  doubted  by  the  judge  who  decided  the  cause  below.  A 
right  may  doubtless  be  granted,  if  a grant  were  necessary,  to  in- 
tercept running  w'ater,  and  confine  it  in  reservoirs  for  separate 
use ; but  the  grant  of  such  a right  would  not  be  the  grant  of  a 
water-power.  No  two  things  can  be  more  distinct  and  dissimilar. 
The  respondents,  therefore,  would  not  be  answerable  in  equity  for 
taking  the  free  and  running  water  of  the  river,  or  for  anything  less 
than  a nuisance  to  the  complainants  by  decreasing  the  volume  and 
force  of  the  current ; for  on  no  other  ground  could  the  extraordi- 
nary  jurisdiction  of  a chancellor,  which  in  case  of  nuisance  is  only 
the  handmaid  and  protectress  of  the  legal  title,  be  invoked  to  re- 


Argument  of  Gen.  Butler. 


147 


strain  the  diverting  of  a water-course.  The  authorities  to  the 
point  are  collected  in  Eden  on  Injunctions,  c.  11,  p.  157,  in  which 
it  is  shown  that,  though  it  is  the  practice  to  enjoin  in  clear  cases 
of  nuisance,  without  a trial  to  establish  the  right  at  law,  yet  the 
courts  of  equitjr  are  exceedingly  unwilling  to  do  so ; and  my  first 
impression  was  that  the  injunction  ought  to  have  been  refused  on 
that  ground.  But  granting  for  the  occasion  that  the  bill,  answer, 
and  proofs,  establish  the  existence  of  an  actual  nuisance,  yet  as 
injunctions,  without  exception,  are  discretionary  and  grantable  on 
the  circumstances  of  the  particular  case,  I am  far  from  clear  that 
it  would  not  be  our  duty  to  leave  the  complainants  to  their  remedy 
at  law,  until  they  could  make  out  a case  of  substantial  and  appre- 
ciable injury  to  a part  of  their  water-power,  which  they  otherwise 
would  have  put  in  use ; and  no  such  injury  is  made  out  by  the 
proofs. 

“ The  estimates  are,  that  about  two  millions  of  gallons  are  daily 
taken  by  the  respondents  from  the  pool,  while  irom  one  hundred 
and  fifty  to  five  hundred  millions  are  suffered,  in  the  same  time, 
to  tumble  over  the  dam.  Whatever,  therefore,  may  be  the  growth 
of  the  districts  and  their  wants,  it  is  pretty  certain  that  the  com- 
plainants will  be  free  from  actual  damage  from  the  respondent’s 
works  in  all  time  to  come.  The  number  of  the  population  at 
present  is  computed  to  be  one  hundred  thousand  ; and  should  it 
in  time  be  equal  to  the  population  of  London  and  its  environs,  — a 
thing  that  is  barely  within  the  bounds  of  possibility,  — the  daily 
consumption,  according  to  the  present  ratio,  would  be  no  more 
than  forty  millions  of  gallons ; leaving  an  immense  surplus, 
which  the  complainants  do  not,  and  probably  never  can,  use.” 

He  would  seem  to  have  had  the  Essex  case  in  mind  : — 

“ But  should  the  case  turn  out,  in  process  of  time,  to  be  other- 
wise, it  would  be  time  enough  to  apply  the  strong  arm  of  a chan- 
cellor to  it.  But,  according  to  Pastorius  vs.  Fisher,  1 Rawle,  27, 
a plaintiff  is  entitled  to  nominal  damages  from  one  who  floods  his 
land  without  actual  damage,  because  every  invasion  of  a right  is, 
in  contemplation  of  law,  a constructive  damage,  calling  for  com- 
pensation in  proportion  to  its  importance.  We  must  not  forget, 
however,  that  an  action  is  of  right,  and  that  an  injunction  is  of 
grace.  Viewing  the  case  as  if  the  complainants  had  established 
their  right  by  a verdict  at  law,  it  would  not  follow  that  a subse- 
quent jury,  performing  the  office  of  a chancellor  under  our  mixed 
system,  as  necessity  has  sometimes  compelled  them  to  do,  would 
be  bound,  on  the  principle  of  Clyde  vs.  Clyde,  1 Yeates,  92,  to 
coerce  the  respondents,  by  means  of  vindicatory  damages,  to  abate 
their  works. 

“ The  preceding  remarks  have  been  hazarded  on  the  foot  of  a 
momentary  concession  that  the  respondent’s  works  are  a nuisance 
in  contemplation  of  law  ; but  are  they  so?  The  affirmative  must 
be  rested  on  an  assumption  that  any  abstraction  of  the  water  for 
domestic  purposes  is  a technical  injury  to  the  complainants’  water- 
power ; and  this,  whether  it  were  drawn  from  the  pool  or  from  the 


148 


Essex  Company. 


stream  above ; for  the  volume  of  the  water  would  be  equally 
lessened  by  it  in  either  case.  According  to  the  argument  it  would 
be  an  infringement  of  the  company’s  right  to  draw  water  from  the 
river,  even  above  the  charter-ground.  But  is  it  possible  to  think 
that  in  granting  the  company  authority  to  use  or  sell  the  power  of 
the  surplus  water,  the  Legislature  intended  to  appropriate  the  whole 
stream,  for  every  purpose,  to  its  exclusive  use,  and  to  debar  the 
inhabitants  of  the  contiguous  villages  and  farms  from  using  any 
part  of  it  for  drinking,  cooking,  washing,  or  any  other  domestic 
purpose?  It  would  be  monstrous  to  suppose  it.  The  very  ex- 
travagance of  the  pretension  is  an  irresistible  argument  against  it. 
The  intent  of  the  Legislature  was  to  give  the  company  a monopoly 
of  the  power  incidentally  created  by  its  works,  and  to  give  it  no 
more ; for  the  words  of  the  section  go  no  further.  The  water  in 
its  pools  was  not  to  be  drawn  from  them  for  application  to  ma- 
chinery elsewhere  without  its  consent ; for  that  is  the  extent  of 
the  enactment,  and  it  contains  no  express  or  implied  prohibition 
of  any  other  use  of  it.  The  river  above  the  charter-ground  was 
left  subject  to  the  common  law,  which  allows  every  riparian  owner 
to  divert  the  stream  for  purposes  of  irrigation  or  power,  subject 
only  to  return  the  residue  of  it  to  its  natural  channel  on  his  own 
ground ; yet  even  he  would  be  liable,  on  the  principle  of  the  argu- 
ment, for  the  least  imaginable  diminution  or  consumption  of  it. 
Even  within  the  extent  of  the  charter-ground  there  was  to  be  no 
sacrifice  of  the  natural  and  inherent  rights  to  the  merely  collateral 
creation  of  water-power,  which  was  not  the  object  for  which  the 
company  was  incorporated,  but  merely  auxiliary  to  it.  The 
Legislature  would  not  have  ventured  to  abridge  a right  so  sacred 
to  accomplish  a subordinate  purpose,  however  meritorious ; and 
had  the  interpretation  attempted  been  propounded  to  it  as  neces- 
sary and  inevitable,  the  bill  would  certainly  have  been  rejected. 
What,  then,  have  the  respondents  done?  The  inhabitants  of  the 
districts  might  have  lawfully  dipped  from  the  margin  of  the  pool 
water  enough  for  their  several  necessities  ; but,  instead  of  drawing 
it  by  hand  or  by  horses,  they'  have  combined  their  funds  to  pro- 
duce a cheaper  — a better  transportation.  True,  the}"  have  laid 
pipes  in  the  pool,  as  they  might  have  laid  them  in  the  bed  of 
the  river  had  not  the  dam  been  erected ; but  what  has  that 
to  do  with  the  supposed  production  of  an  injury  to  the  com- 
plainants by  decreasing  the  volume  and  force  of  the  stream? 
Certainly  no  more  than  the  transportation  of  the  water,  when 
separated  from  the  mass,  has  to  do  with  it.  Unless  the  com- 
plainants have  a specific  property  in  the  water  itself,  — and  all  the 
writers  on  natural  or  conventional  law  agree  that  they  have  not,  — 
they  have  no  equity.  To  state  their  case  is  to  decide  it.  We  are, 
therefore,  compelled  to  differ  from  the  opinion  expressed  by  our 
lhte  brother  Kennedy,  and  to  reverse  his  decree. 

“ Injunction  dissolved  and  bill  dismissed.” 

That,  I think,  sustains  my  view  of  the  law  in  this  case 
farther  than  you  need  to  go.  Here  is  no  grant  of  water- 
power, but  leave  to  create  water-power  out  of  the  water 
flowing  in  the  river,  and  not  to  take  anybody  else’s  rights. 


Argument  of  Gen.  Butler. 


149 


Before  I read  the  next  case,  I want  to  come  to  exactly 
what  is  proved  here.  It  is  now  in  evidence  (and  I have  not 
seen  occasion  to  controvert  that  evidence,  but  will  try  to 
state  the  fair  result  of  it) , that  the  Essex  Company  have  a per- 
manent water-power,  which  they  can  use, — if  they  get  some- 
body to  buy  it, — up  to  2,400  cubic  feet  per  second.  Beyond 
that  it  gets  uncontrollable  in  surplus,  and  they  say  they  do  not 
even  measure  it;  but  up  to  2,400  cubic  feet  per  second 
they  do.  And  that  furnishes  them  186  mill-powers  of  thirty 
cubic  feet  each.  They  have  their  capacity  in  the  way  they 
can  use  it,  in  twelve  hours  a day  ; and  of  course  there  are  two- 
twelfths  more  if  used  only  ten  hours  a day.  Mr.  Storrow 
says  he  thinks  Mr.  Mills  has  been  by  far  too  modest  about  it, 
and  that  they  have  got  more.  Well,  I think  they  have  too. 

Now,  the  most  that  they  claim  is,  that  less  than  two  per 
cent,  of  that  is  taken  away  from  them, — that  is  the  extent  of 
their  claim;  by  the  water-shed — two  per  cent., — one  fifty- 
seventh  part.  Well,  they  come  here  and  admit  to  you  that 
it  is  impossible  for  them  to  measure  how  much  they  have  got 
rid  of,  within  three  per  cent. ; that  to  tell  whether  they  have 
lost  it  or  got  it  is  impossible. 

But  that  is  not  all ; they  admit  that  this  two  per  cent,  is 
not  of  any  use  to  them  nine  months  in  the  year,  because  they 
have  a surplus  which  they  never  can  use.  Then  the  actual 
loss  is  to  be  one-quarter  of  two  per  cent.,  that  is,  for  a quar- 
ter of  a year,  or  a half  of  one  per  cent.  That  is  the  actual  loss 
out  of  their  water-power ; a half  of  one  per  cent. , upon  the 
highest  claim,  too,  you  will  observe.  And  they  cannot 
measure  within  three  per  cent,  at  the  lowest ; and  they  are 
as  skilled  as  anybody  else.  That  they  admit,  and  they  testify 
that  human  ingenuity  has  not  fixed  it  so  that  they  can  meas- 
ure the  gain  at  all. 

But  we  do  not  stop  there.  That  is  upon  an  assumption 
that  this  old  map  has  shown  the  water-shed  of  the  river  on 
one  side,  as  against  our  new  map  on  the  other.  Well,  upon 
that  evidence,  the  later  maps  give  four  hundred  miles  more 
water-shed  than  this  old  one  does.  I did  not  think  to  ask 
my  young  friend  on  which  side  of  that  water-shed  line  he  put 
his  dividers  upon  the  scale  on  which  this  map  is  drawn.  This 
line  is  so  broad  that  if  he  had  put  them  on  the  inside  instead 
of  the  outside  of  that  line,  it  would  have  made  a difference 
larger  in  amount  than  the  whole  water-shed  of  the  Sudbury 
river.  If  you  take  that  broad  line  and  measure  from  the 
inside  of  it,  and  not  the  outside,  it  will  make  all  that  differ- 
ence in  the  water-shed. 

But  this  is  corrected  by  the  fact  that  their  engineer,  Mr. 
Mills,  says  he  don’t  think  that  in  the  summer  time  there  is 


150 


Essex  Company. 


more  than  forty-five  cubic  feet  gets  down  there,  which  is,  they 
say,  a mill-power  and  a half,  or  an  average  of  that.  That 
is  his  largest  estimate  of  the  amount  that  they  get  down  there. 
Well,  their  water-shed  should  call  for  two,  and  considerable 
more,  and  he  could  not  quite  come  up  to  that ; and  they 
agree  that  there  is  a waste  in  their  water-shed ; that  is  his 
idea.  But  we  have  Mr.  Storrow  himself  in  connection  with 
the  water-shed  (and  they  do  not  bring  him  to  contradict  it) , — 
we  have  Mr.  Storrow  himself  charged  with  the  duty  of 
settling  between  these  meadow-owners  and  Mr.  Talbot  as  a 
commissioner  of  the  State,  sending  there  Mr.  Mills  and 
thirty  other  assistants,  and  reporting  to  the  State  that,  re- 
ducing this  river  without  the  dam,  and  finding  exactly  what 
runs  in  it,  they  believe  it  is  less  than  a hundred  cubic  feet  a 
second  in  a dry  season,  and  they  say  that  that  is  a fair  ordi- 
nary measure  for  the  summer. 

Is  not  that  what  they  say  ? I believe  I have  stated  it  with 
accuracy.  Now,  then,  Sudbury  river  is  one-fifth  of  that, 
i.  e.,  twenty  cubic  feet  in  the  summer,  that  is,  two-thirds  of 
a mill-power,  and  they  say  they  cannot  measure  within  three 
per  cent.,  — five  mill-powers  and  some  odd,  — of  what  they 
have.  If  it  was  two  hundred,  it  would  be  just  six  mill- 
powers. 

Now,  is  not  this  theoretical  damage,  gentlemen?  And 
can  you  give  this  under  a statute  which  says  they  shall  not 
have  it  until  the  water  is  withdrawn  from  them  and  they  are 
affected  thereby  ? That  is  the  point.  Now,  have  they  been 
affected  by  any  draught  of  water  yet  ? Is  it  not  a misuse  of 
terms  to  say  that  they  have  been  affected  by  the  use  of  water 
here? 

“ And  if  the  owner  of  any  land,  water  or  water-rights,  which 
shall  be  taken  as  aforesaid,  or  other  person  who  shall  sustain  dam- 
ages, as  aforesaid,  shall  not  agree  upon  the  damages  to  be  paid 
therefor,  he  may  apply,  by  petition,  for  the  assessment  of  his 
damages  at  any  time  within  three  years  from  the  taking  of  the  said 
land,  water,  or  water-rights,  as  aforesaid,  and  not  afterwards,  to 
the  Court  of  Common  Pleas  in  the  county  in  which  the  same  are 
situate.” 

• 

Then  in  the  eighth  section  of  the  Act  of  1846  : — 

“ No  application  shall  be  made  to  the  court  for  the  taking  of 
any  water-rights  until  the  water  shall  be  actually  withdrawn  or 
diverted  by  the  said  city,  under  the  authority  of  this  act ; and  any 
person  or  corporation  whose  water-rights  may  be  thus  taken  or 
affected,  may  make  his  application  aforesaid  at  any  time  with- 
in three  years  from  the  time  when  the  waters  shall  be  first  actually 
withdrawn  or  diverted,  as  aforesaid.” 


Argument  of  Gen.  Butler. 


151 


Then  the  man  affected  shall  have  his  right  to  petition.  It 
means,  I say,  to  deal  with  damages.  Now,  we  have  a term 
in  the  law,  which  is  very  familiar  to  us  all,  and  1 never  saw 
a case  where  I thought  it  was  more  applicable,  — damnum 
absque  injuria , loss  without  an  injury,  — and  that  is  exactly 
the  condition  of  these  complaints,  as  I shall  proceed  to  show 
you. 

I come  to  another  of  the  questions  to  which  I wish  to  call 
your  attention.  What  are  the  rights  of  riparian  proprietors 
in  a stream?  Why,  it  is  agreed  that  they  are  only  the 
rights  in  the  natural  stream.  Now,  what  would  be  the  dis- 
charge of  the  natural  Sudbury  river  in  the  summer  months 
without  any  reservoirs?  Mr.  Storrow  very  frankly  and 
fairly  tells  you  that  every  reservoir  built  aids  the  water- 
power. Mr.  Mills  tells  you  that  the  more  reservoirs  the 
less  valuable  they  are  in  summer  time ; but  I don’t  think 
that  is  the  general  belief.  At  any  rate,  nobody  acts  upon  it. 
Now,  on  Sudbury  river  there  are  thirteen  mill-dams  and 
reservoirs.  The  Essex  Company  have  no  right  to  those 
reservoirs.  They  have  no  right  in  those  dams.  They  can 
let  them  go  to  decay,  as  in  the  case  of  the  old  machine-shop 
dam  up  on  Stony  brook,  and  the  Essex  Company  cannot 
say  "Why  do  ye  so?”  They  can  shut  them  up.  They  have 
only  the  right  to  the  natural  run  of  the  stream  — to  let  it 
flow  in  its  natural  course.  Every  proprietor  below  the 
city’s  dam  has  no  other  right  than  that,  unless  he  takes  the 
natural  flow  of  the  stream,  as  in  Simpson’s  case.  That  will 
flow  back,  and  he  then  has  more  rights.  But  the  men  below 
have  no  right  to  the  reservoirs  of  Simpson’s  dam  nor  have 
they  any  right  to  the  Talbot  dam.  Each  dam  goes  to  make 
up  this  volume  of  water,  and  all  agree  that  the  streams  are 
growing  better  as  water-power  by  the  building  of  the  reser- 
voirs. 

Now,  what  I desire  to  impress  upon  you  is,  that  the  only 
right  that  a riparian  proprietor  has  below  is  the  natural  right 
to  the  stream;  the  right  to  the  natural  flow  of  the  stream, — 
all  that  is  above  that  does  not  belong  to  him.  That  is  stored 
up.  He  has  paid  nothing  for  it  and  he  can  claim  nothing  for 
it.  That  comes  down  to  him  by  accident  and  he  can  claim 
nothing  for  it.  And  my  brother  Abbott  will  remember  when 
the  Cochituate  water  was  taken,  how  fully  that  principle  was 
applied  to  us.  The  Middlesex  Company  and  Mr.  Whipple’s 
Company  brought  an  action  for  very  large  damages,  because 
they  said  that  the  Middlesex  Canal  (which  was  then  in  exist- 
ence) had  taken  pretty  much  all  the  water  of  the  Concord  river 
in  the  summer  time,  and  Boston  was  going  to  take  the  rest, 
and  that  there  would  not  be  enough  left  to  grind  our  corn 
even  up  to  Billerica.  The  suit  went  to  trial,  and  we  got  our 


152 


Essex  Company. 


notions  as  much  inflated  as  my  Essex  friends  have  theirs  as 
to  what  the  damages  were.  There  had  been,  since  1794,  a 
dam  at  Cochituate,  which  had  been  flowed  six  feet,  and  that 
water  had  been  drawn  ofl*  and  used  as  water-power.  But  the 
court  ruled  that  we  had  no  right  to  that  water  ; that  all  the 
right  we  had  was  to  the  water  which  would  flow  out  of  that 
pond  in  the  dry  season,  in  a state  of  nature  ; and  they  produced 
gentlemen  from  that  neighborhood,  I know,  to  testify  that  it 
would  all  flow  through  an  inch  pipe  in  the  winter  time,  and 
that  there  was  an  inch  pipe  that  went  up  to  somebody’s  house 
that  soaked  it  all  up  in  the  dry  season.  The  result  of  those 
suits  is  told  in  this  book,  the  “History  of  the  Water 
Works”:  — 

“ Two  of  these  claim  suits  were  tried  ; in  one  the  jury  could  not 
agree  on  a verdict,  and  in  the  other,  when  the  damage  claimed  was 
$150,000,  they  awarded  $500.  A proposition  was  then  made  for 
the  discharge  of  all  the  claims,  and  they  were  finally  settled  and 
the  suits  discontinued  by  the  payment  of  the  sum  of  $6,678.90  on 
the  part  of  the  city.” 

But  the  whole  question  there  depended  on  what  the  right 
was,  and  the  right  was  only  to  the  natural  flow. 

Then  I say,  if  that  is  the  right,  we  have  not  even  got  down 
to  the  natural  flow  of  twenty  cubic  feet  per  second,  one-fifth 
of  the  hundred  cubic  feet  per  second,  in  the  summer  time ; 
because  all  these  reservoirs  above  were  supplying  the  water, 
so  that,  although  we  had  the  natural  run  between  Sudbury 
and  Concord,  by  taking  down  Concord’s  dam,  yet  we  did  not 
get  the  natural  run  above,  because  it  was  dammed  above  and 
there  were  reservoirs  above.  So  that  that  twenty  feet  per 
second,  one-fifth  of  the  hundred  feet  which  was  measured  by 
the  commissioners  in  1861,  when  they  had  no  interest  as  be- 
tween anybody  below  or  above,  but  simply  to  determine  the 
flow  for  the  purpose  of  determining  the  amount  of  flowage, 
and  which  Mr.  Storrow  signed  his  name  to,  — that  twenty 
feet  was  inflated,  if  you  please,  or  enhanced  by  the  reservoirs 
above.  So  that  we  are  brought  down  to  less  than  twenty 
feet  a second,  — when  they  admit  they  cannot  measure  within 
ninety  feet  a second  by  any  means  known  to  human  power ; 
yes,  six  mill-powers,  one  hundred  and  eighty  feet  per 
second* — six  mill-powers.  If  there  are  two  hundred  there, 
as  they  claim  there  are,  they  cannot  measure  within  six  mill- 
powers.  And  we  are  reduced  to  two-thirds,  or  about  one- 
half  a mill-power  a second,  a percentage  inappreciable,  and 
which  they  admit  they  can  never  find  out  and  never  know. 
True,  they  say  if  they  had  the  water  down  there  and  knew 
it,  they  could  sell  it  for  a considerable  sum.  I agree.  But 
it  is  exactly  like  the  question  of  weighing  hay  on  hay-scales, 


Argument  of  Gen.  Butler. 


153 


— you  do  not  expect  your  scales  to  turn  within  four  or  five 
pounds  on  a load  of  hay ; you  expect  that  much  friction. 
When  you  come  to  weighing  diamonds,  you  have  a very  dif- 
ferent sort  of  scale,  and  measure  very  differently.  But  a 
matter  like  water  is  measured  precisely  as  you  would  meas- 
ure hay,  and  the  half  of  one  per  cent,  on  a load  of  hay 
would  be  thought  very  small  to  be  looked  up  by  a farmer, 
would  it  not?  Yet  see  what  elaborate  preparation  has  been 
made  by  great  corporations  to  get  a half  of  one  per  cent,  on 
water ! True,  they  can,  by  taking  half  of  one  per  cent,  on 
six  mill-powers,  and  inflating  it  by  an  exaggeration  of  prices, 
render  it  very  large  in  figures,  theoretically.  But  they  have  at 
last  to  swear  that  they  cannot  measure  it,  nor  measure  any- 
where near  it. 

Now,  then,  I will  read  a case  which  is  familiar  to  you, 
from  Welsby,  Hurlstone  and  Gordon’s  Exchequer  Reports, 
Yo.  6,  — the  case  of  Embrey  vs.  Owen,  p.  370.  Speaking 
of  how  much  may  be  carried  away  without  returning  it,  the 
Court  says : — 

“ In  America,  as  may  be  inferred  from  this  extract,  and  as  is 
stated  in  the  judgment  of  the  Court  of  Exchequer,  in  Wood  vs. 
Waud,  a very  liberal  use  of  the  stream  for  the  purposes 
of  irrigation,  and  for  carrying  on  manufactures,  is  permitted. 
So  in  France,  where  every  one  may  use  it  “ en  bon  pere  de  famille, 
et  pour  son  plus  grand  avantage.”  Code  Civil,  Art.  640,  note  a, 
by  Pailliet  (a).  He  may  make  trenches  to  conduct  the  water  to 
irrigate  his  land,  if  he  returns  it  with  no  other  loss  than  that  which 
irrigation  caused.  In  the  above-cited  case  of  Wood  vs.  Waud,  it 
was  observed,  that  in  England  it  is  not  clear  that  an  user  to  that 
extent  would  be  permitted ; nor  do  we  mean  to  la}7-  down  that  it 
would  in  every  case  be  deemed  a lawful  enjoyment  of  the  water,  if 
it  was  again  returned  into  the  river  with  no  other  diminution  than 
that  which  was  caused  by  the  absorption  and  evaporation  attendant 
on  the  irrigation  of  the  lands  of  the  adjoining  proprietor.  This 
must  depend  upon  the  circumstances  of  each  case.  On  the  one 
hand,  it  could  not  be  permitted  that  the  owner  of  a tract  of  many 
thousand  acres  of  porous  soil,  abutting  on  one  part  of  the  stream, 
could  be  permitted  to  irrigate  them  continually  by  canals  and 
drains,  and  so  cause  a serious  diminution  of  the  quantity  of  water, 
though  there  was  no  other  loss  to  the  natural  stream  than  that 
arising  from  the  necessary  absorption  and  evaporation  of  the  water 
employed  for  that  purpose  ; on  the  other  hand,  one’s  common  sense 
would  be  shocked  by  supposing  that  a riparian  owner  could  not 
dip  a watering-pot  into  the  stream,  in  order  to  water  his  garden,  or 
allow  his  family  or  his  cattle  to  drink  it.  It  is  entirely  a question 
of  degree,  and  it  is  very  difficult,  indeed  impossible,  to  define  pre- 
cisely the  limits  which  separate  the  reasonable  and  permitted  use 
of  the  stream  from  its  wrongful  application  ; but  there  is  often  no 
difficulty  in  deciding  whether  a particular  case  falls  within  the  per- 


154 


Essex  Company, 


mitted  limits  or  not ; and  in  this  we  think,  that  as  the  irrigation 
took  place,  not  continuously,  but  only  at  intermittent  periods, 
when  the  river  was  full,  and  no  damage  was  done  thereby  to  the 
working  of  the  mill,  and  the  diminution  of  the  water  was  not  per- 
ceptible to  the  eye,  it  was  such  a reasonable  use  of  the  water  as 
not  to  be  prohibited  by  law.  If  so,  it  was  no  infringement  of  the 
plaintiff’s  right  at  all ; it  was  only  the  exercise  of  an  equal  right 
which  the  defendant  had  to  the  usufruct  of  the  stream. 

“We  are  therefore  of  opinion  that  there  has  been  no  injury  in  fact 
or  in  law  in  this  case,  and  consequently  that  the  verdict  for  the 
defendant  ought  not  to  be  disturbed,” 

To  reduce  it  to  a question  of  practical  use,  it  did  not 
diminish  the  working  of  the  mill  perceptibly,  nor  was  it  per- 
ceptible to  the  eye,  — they  could  not  diminish  it  by  its  use 
for  purposes  of  irrigation,  so  as  to  create  a diminution  which 
would  be  an  infringement  of  the  plaintiff’s  right,  — a very  dif- 
ferent case  from  the  case  of  Simpson,  where  there  was  an 
actual  diminution  of  a large  portion  of  the  water. 

The  next  case  is  that  of  Wood  vs.  Waud,  in  the  third 
of  Welsby,  Hurlstone  and  Gordon’s  Exchequer  Reports, 
p.  780:  — 

“ The  next  question  is  also  one  of  considerable  nicety.  It  is, 
whether  the  verdict  should  be  entered  for  the  plaintiffs  on  the  pleas 
of  not  guilty,  as  to  the  third  count,  complaining  of  the  abstraction 
of  the  water  from  the  Bowling  Sough,  and  the  fourth,  complaining 
of  the  abstraction  and  detention  of  the  water  from  the  Low  Moor 
Sough. 

“ The  defendants  contend  that  the  diminution  of  the  water  by 
five  per  cent.,  and  the  altering  the  flow  of  the  water,  are  injuries 
too  trifling  to  be  the  subject  of  an  action. 

“ In  considering  this  question,  it  is  to  be  assumed  that  the 
plaintiff’s  right  is  established  to  the  use  of  the  water.  It  is  said 
that  the  true  rule  on  this  subject  is  laid  down  by  Chancellor  Kent, 
3 Com.,  439,  440,  that  streams  are  meant  for  the  use  of  men,  and 
that  it  would  be  unreasonable,  and  contrary  to  the  universal  con- 
sent of  mankind,  to  debar  each  riparian  proprietor  from  the  appli- 
cation of  the  water  to  domestic,  agricultural  or  manufacturing 
purposes,  provided  the  use  of  it  be  made  so  as  to  work  no  material 
injury  or  annoyance  to  his  neighbor,  and  though  there  will  no 
doubt  be,  in  the  exercise  of  a proper  use  of  water,  some  evapor- 
ation and  decrease  of  it,  — some  variation  in  the  weight  and 
velocity  of  the  current ; but  the  maxim  ‘ de  minimis  non  curat  lex  * 
applies,  and  a right  of  action  by  the  proprietor  below  would  not 
necessarily  flow  from  such  use, — it  would  depend  on  the  nature 
and  extent  of  the  injury,  and  the  manner  of  using  the  water. 

“ In  America,  a very  liberal  use  of  the  water,  for  the  purpose  of 
irrigation,  and  for  carrying  on  manufactures,  has  been  allowed. 
In  France,  also,  the  right  of  the  riparian  proprietor  to  the  use  of 
the  water  is  not  strictly  construed.  He  may  use  it  ‘ en  bon  pere 


Argument  of  Gen.  Butler. 


155 


de  famille,  a son  plus  grand  avantage.*  (Code  Civil,  Art.  640,  note 
by  Pailliet  (a)).  He  may  make  trenches  to  conduct  the  water  to 
irrigate  his  land,  if  he  return  it  with  no  other  loss  than  that  which 
irrigation  caused.  In  England,  it  is  not  very  clear  that  such  a 
user  would  be  permitted,  as  arising  out  of  the  right  to  the  use  of 
the  water  jure  natural;  but,  no  doubt,  if  the  stream  were  only  used 
b3'  the  riparian  proprietor  and  his  family  by  drinking  it,  or  for  the 
supply  for  domestic  purposes,  no  action  would  lie  for  this  ordinary 
use  of  it ; and  it  may  be  conceived,  that  if  a field  be  covered  with 
houses,  the  ordinary  use  by  the  inhabitants  might  sensibly  diminish 
the  stream,  jTet  no  action  would,  we  apprehend,  lie,  any  more  than 
if  the  air  was  rendered  less  pure  and  healthy  by  the  increase  of  in- 
habitants in  the  neighborhood,  and  by  the  smoke  issuing  from  the 
chimneys  of  an  increased  number  of  houses.  But,  on  the  other 
hand,  as  the  establishment  of  a manufacture  rendering  the  air 
sensibly  impure  by  emitting  noxious  gases  would  be  actionable, 
so  would  it  be  if  it  rendered  the  water  less  pure  by  the  admixture 
of  noxious  substances ; and  if  a mode  of  enjoyment  quite  different 
from  the  ordinary  one  is  adopted,  by  which  the  water  is  diverted 
into  a reservoir,  and  there  delayed  for  the  purposes  of  a manufac- 
ture, an  action  seems  to  us  to  be  maintainable ; and  so  if  by  that 
mode  of  dealing  with  the  water  it  is  sensibly  diminished  in 
quantity. 

“We  think,  therefore,  that  the  issue  on  not  guilty,  so  far  as  re- 
lates to  both  Bowling  Sough  and  Low  Moor  Sough,  should  be  found 
for  the  plaintiffs.” 

“ In  the  case  of  Evans  vs.  Merri weather,  3 Scammon’s  Illinois 
Reports,  492,  it  was  held  that  each  riparian  proprietor  is  bound  to 
make  such  a use  of  running  water  as  to  do  as  little  injury  to  those 
below  him  as  is  consistent  with  a valuable  benefit  to  himself ; that 
where  the  stream  is  small,  and  does  not  furnish  water  more 
than  sufficient  to  supply  the  natural  wants  of  the  different  pro- 
prietors living  on  it,  none  of  the  proprietors  can  use  the  water 
for  either  irrigation  or  manufactures  ; that  where  all  have  a right 
to  participate  in  a common  benefit,  and  no  one  can  have  an  ex- 
clusive enjoyment,  no  rule,  from  the  very  nature  of  the  case,  can 
be  laid  down  as  to  how  much  each  may  use  without  infringing 
upon  the  rights  of  others.  In  such  cases,  it  must  be  left  to  the 
jury  to  determine  whether  the  party  complained  of  has  used,  under 
all  the  circumstances,  more  than  his  just  proportion. 

“ This  was  an  action  on  the  case  for  obstructing  and  diverting  a 
water-course.  A verdict  was  obtained  in  the  lower  court  for  the  plain- 
tiff, to  which  the  defendant  excepted.  The  case  was  heard  on  an 
agreed  statement  of  facts,  to  wit : That  Smith  & Baker,  in  1834, 
bought  of  T.  Carlin  six  acres  of  land,  through  which  a branch  run, 
and  erected  a steam-mill  thereon.  They  depended  upon  a well  and  the 
branch  for  water  in  running  their  engine.  About  one  or  two  years 
afterwards,  John  Evans  bought  of  T.  Carlin  six  acres  of  land  on 
the  same  branch,  above  and  immediately  adjoining  the  lot  owned 
by  Smith  & Baker,  and  erected  thereon  a steam-mill,  depending 
upon  a well  and  the  branch  for  water  in  running  his  engine. 


156 


Essex  Company. 


“ Smith  & Baker,  after  the  erection  of  Evans’  mill,  in  1836  or 
1837,  sold  the  mill  and  appurtenances  to  Merriweather  for  about 
$8,000.  Evans’  mill  was  supposed  to  be  worth  $12,000.  Ordi- 
narily, there  was  an  abundance  of  water  for  both  mills  ; but,  in  the 
fall  of  1837,  there  being  a drought,  the  branch  failed  so  far  that 
it  did  not  afford  water  sufficient  to  run  the  upper  mill  continually. 
Evans  directed  his  hands  not  to  stop  or  divert  the  water  in  the 
branch  ; but  one  of  them  employed  about  the  mill  did  make  a dam 
across  the  branch  just  below  Evans’  mill,  and  thereby  diverted  all 
the  water  in  the  branch  into  Evans’  well.  Evans  was  at  home, 
half  a mile  from  the  mill,  and  was  frequently  about  his  mill,  and 
evidence  was  introduced  conducing  to  prove  that  he  might  have 
known  that  the  water  of  the  branch  was  diverted  into  his  well. 
After  the  diversion  of  the  water  into  Evans’  well  as  aforesaid,  the 
branch  went  dry  below,  and  Merriweather’s  mill  could  not,  and  did 
not,  run  in  consequence  of  it  more  than  one  day  in  a week,  and 
was  then  supplied  with  water  from  his  well.  Merriweather  then 
brought  this  suit  in  three  or  four  weeks  after  the  putting  of  the 
dam  across  the  branch  for  the  diversion  of  the  water,  and  obtained 
a verdict  for  $150.  This  suit,  it  is  admitted,  is  the  first  between 
the  parties  litigating  .the  right  as  to  the  use  of  the  water.  It  is 
further  agreed  that  the  branch  afforded  usually  sufficient  water  for 
the  supply  of  both  mills  without  materially  affecting  the  size  of 
the  current,  though  the  branch  was  not  depended  upon  exclusively 
for  that  purpose.  Furthermore,  that  at  the  time  of  the  grievances 
complained  of  by  the  plaintiff  below,  the  defendant  had  water 
hauled  in  part  for  the  supply  of  his  boilers.  That  the  dam  was 
made  below  the  defendant’s  well,  across  the  branch,  which  diverted 
as  well  the  water  hauled  and  poured  out  into  the  branch  above  the 
well,  as  the  water  of  the  branch  into  the  defendant’s  well. 

“After  quoting  the  opinion  of  Mr.  Justice  Story,  in  Tyler  vs.  Wil- 
kinson, 4 Mason,  400,  the  Court  say,  c This  doctrine  is  fully  sus- 
tained by  English  and  American  cases.  In  the  case  of  Arnold  vs. 
Foot,  12  Wend.,  330,  it  was  held,  where  a defendant  had  diverted 
the  water  from  a spring  rising  on  his  land  to  irrigate  his  meadow, 
“ that  he  had  a right  to  use  so  much  as  is  necessary  for  his  family 
and  his  cattle,  but  he  has  no  right  to  use  it  for  irrigating  his 
meadow,  if  thereby  he  deprive  the  plaintiff  of  the  reasonable  use 
of  the  water  in  its  natural  channel.”  ’ 

“ Each  riparian  proprietor  is  bound  to  make  such  a use  of 
running  water  as  to  do  as  little  injury  to  those  below  him  as  is 
consistent  with  a valuable  benefit  to  himself.  The  use  must  be  a 
reasonable  one.  Now,  the  question  fairly  arises,  is  that  a reason- 
able use  of  running  water  by  the  upper  proprietor,  by  which  the 
fluid  itself  is  entirely  consumed?  To  answer  this  question  satis- 
factorily, it  is  proper  to  consider  the  wants  of  man  in  regard  to 
the  element  of  water.  These  wants  are  either  natural  or  artificial. 
Natural  are  such  as  are  absolutely  necessary  to  be  supplied  in 
order  to  his  existence.  Artificial,  such  only  as  by  supplying 
them  his  comfort  and  prosperity  are  increased.  To  quench 
thirst,  and  for  household  purposes,  water  is  absolutely  indispen- 
sable. In  civilized  life,  water  for  cattle  is  also  necessary.  These 
wants  must  be  supplied,  or  both  man  and  beast  will  perish. 


Argument  of  Gen.  Butler. 


157 


“ The  supply  of  man’s  artificial  wants  is  not  essential  to  his 
existence  ; it  is  not  indispensable ; he  could  live  if  water  was  not 
employed  in  irrigating  land,  or  propelling  his  machinerj'.  In 
countries  differently  situated  from  ours,  with  a hot  and  arid 
climate,  water  doubtless  is  absolutely  indispensable  to  the  cultiva- 
tion of  the  soil,  and  in  them  water  for  irrigation  would  be  a 
, natural  want.  Here  it  might  increase  the  products  of  the  soil, 
but  it  is  by  no  means  essential,  and  cannot  therefore  be  considered 
a natural  want  of  man.  So  of  manufactures,  they  promote  the 
prosperity  and  comfort  of  mankind,  but  cannot  be  considered 
absolutely  necessary  to  his  existence ; nor  need  the  machinery 
which  he  employs  be  set  in  motion  by  steam. 

“ From  these  premises  would  result  this  conclusion  : that  an 
individual  owning  a spring  on  his  land,  from  which  water  flows  in 
a current  through  his  neighbor’s  land,  would  have  the  right  to  use 
the  whole  of  it,  if  necessary  to  satisfy  his  natural  wants.  He 
may  consume  all  the  water  for  his  domestic  purposes,  including 
water  for  his  stock.  If  he  desires  to  use  it  for  irrigation  or  man- 
ufactures, and  there  be  a lower  proprietor  to  whom  its  use  is 
essential  to  supply  his  natural  wants,  or  for  his  stock,  he  must 
use  the  water  so  as  to  leave  enough  for  such  lower  proprietor. 
Where  the  stream  is  small,  and  does  not  supply  water  more  than 
sufficient  to  answer  the  natural  wants  of  the  different  proprietors 
living  on  it,  none  of  the  proprietors  can  use  the  water  for  either 
irrigation  or  manufactures.  So  far , then,  as  natural  wants  are 
concerned , there  is  no  difficulty  in  furnishing  a rule  by  which  riparian 
proprietors  may  use  flowing  water  to  supply  such  natural  wants. 
Each  proprietor  in  his  turn  may,  if  necessary,  consume  all  the  water 
for  these  purposes.  But  where  the  water  is  not  wanted  to  supply 
natural  wants,  and  there  is  not  sufficient  for  each  proprietor  living 
on  the  stream  to  carry  on  his  manufacturing  purposes,  how  shall 
the  water  be  divided?  We  have  seen  that  without  a contract  or 
grant,  neither  has  a right  to  use  all  the  water ; all  have  a right  to 
participate  in  its  benefits.  Where  all  have  a right  to  participate 
in  a common  benefit,  and  none  can  have  an  exclusive  enjoyment, 
no  rules,  from  the  very  nature  of  the  case,  can  be  laid  down,  as 
to  how  much  each  may  use  without  infringing  upon  the  rights  of 
others.  In  such  cases,  the  question  must  be  left  to  the  judgment 
of  the  jury,  whether  the  party  complained  of  has  used,  under  all 
the  circumstances,  more  than  his  just  proportion.” 

Let  me  say  here,  that  the  Essex  Company  and  the  people 
at  Lawrence  had  a great  deal  better  have  the  people  of  Bos- 
ton kept  clean,  well  washed  and  healthy,  so  that  they  can 
.wear jl  great  deal  of  cotton  cloth  and  woollen  cloth,  than 
have  them  die  off  for  want  of  water,  and  the  company  get 
their  pay  for  the  water.  The  balance  of  convenience  will  be 
wholly  on  that  side. 

“ In  Wadsworth  vs.  Tillotson,  15  Conn.,  366,  the  Supreme  Court 
of  Errors  held,  that  where  the  Court,  on  the  trial  of  an  action  for 


158 


Essex  Company. 


the  diversion  of  a water-course,  instructed  the  jury,  that  if  the 
defendant  had  taken  the  water  in  question  from  a spring  on  his 
land,  by  an  aqueduct,  to  his  house  and  barn,  and  had  there  suffered 
it  to  flow  constantly,  at  all  seasons,  in  larger  quantities  than  he 
needed,  and  used  for  domestic  and  culinary  purposes,  and  for 
watering  his  cattle,  and  none  of  it  returned  into  its  natural  chan- 
nel, and  what  was  not  so  needed  or  used  ran  on  to  the  land  of  the 
defendant,  or  was  lost,  he  had  infringed  the  rights  of  the  plaintiff, 
the  riparian  proprietor  below,  for  which  the  plaintiff  was  entitled 
to  recovery,  this  was  a misdirection,  as  it  should  have  been  sub- 
mitted to  the  jury  to  decide,  upon  the  evidence,  whether  the  de- 
fendant had  used  the  water  in  a proper  and  reasonable  manner. 

“ The  Court  say : Every  proprietor  of  land,  through  which  a 
natural  water-course  runs,  has  an  equal  right  to  the  use  of  the 
water  for  every  useful  purpose  to  which  it  can  be  applied,  as  it  is 
wont  to  run,  without  diminution  or  alteration.  This  right  is  not 
an  easement  or  appurtenance ; but  is  irreparably  annexed  to  the 
soil,  and  is  parcel  of  the  land  itself.  Consequently,  no  proprietor 
has  the  right  to  use  the  water  to  the  prejudice  of  any  other  pro- 
prietor above  or  below  him,  unless  he  has  acquired  a right  to  use 
the  water  in  some  peculiar  manner,  and  differently  from  what  he 
would  be  entitled  to  do,  as  mere  riparian  proprietor ; which  he 
may  do,  by  an  actual  grant  or  license  from  the  proprietor  affected 
b}^  his  operations,  or  an  uninterrupted  enjoyment  for  such  a length 
of  time  as  would  afford  a conclusive  presumption  of  a grant 
which,  in  this  State,  is  fifteen  years.  But,  whatever  may  be  the 
right  of  any  proprietor,  or  however  acquired,  it  must  be  exercised 
in  a reasonable  manner,  and  so  as  not  unnecessarily  to  injure 
the  right  of  others.  (Twiss  vs.  Baldwin,  9 Conn.  Rep.,  291.) 

“Each  of  the  parties,  in  this  case,  was  entitled  to  those  rights 
in  the  water  flowing  from  the  spring  in  question,  which  are  an- 
nexed to  land  through  which  runs  a natural  water-course ; it  being 
conceded,  on  the  trial,  that  no  such  use  had  been  made  of  said 
spring,  or  the  water  flowing  therefrom,  as  to  vary  the  natural 
riparian  rights  of  the  parties  thereto.  The  defendant,  therefore, 
as  proprietor  of  the  land  on  which  the  spring  was,  had  the  un- 
doubted right  to  use  the  water  of  it,  for  the  purposes  for  which  she 
used  it,  namely,  for  her  domestic  and  culinary  purposes,  and 
watering  her  cattle.  This  has  not  been  questioned.  The  question 
then  is,  whether  she  exercised  this  right  in  an  improper  manner, 
or  so  as  to  violate  the  rights  of  the  plaintiff. 

“ It  is  claimed  that  there  has  been  an  improper  diversion  or 
waste  of  the  water,  by  reason  of  the  surplus  not  being  returned  to 
the  natural  channel  of  the  stream.  Now,  it  is  obvious  that  there 
is  scarcely  any  mode  whatever,  whether  artificial  or  not,  by  which 
water  can  be  beneficially  used  which  would  not  be  necessarily  at- 
tended with  some  degree  of  loss.  It  is  not  practicable  for  every 
particle  of  it  which  is  not  used  or  consumed  to  be  returned  to  the 
original  stream.  It  does  not,  however,  necessarily  follow  that  in 
such  cases  there  has  been  an  improper  use  of  one’s  own  rights,  or 
an  infringement  of  the  rights  of  others.  The  principles  on  this 
subject,  as  they  are  generally,  and  with  substantial  accuracy  stated 


Argument  of  Gen.  Butler. 


159 


in  the  books,  that  each  proprietor  through  whose  land  the  stream 
runs  is  entitled  to  its  use,  as  it  is  wont  to  run  (ut  currere  solebat) 
without  diminution  or  alteration  ; and,  that  the  water  cannot  be 
diverted,  in  whole  or  part,  but  must  be  returned,  after  it  is  used, 
to  its  ordinary  channel,  are  not  to  be  understood  so  literally  as  to 
prevent  that  small  or  unessential  or  insensible  diminution,  varia- 
tion or  loss  of  the  water  which  is  necessarily  consequent  upon  the 
beneficial  and  proper  enjoyment  of  it ; for  such  a strictness  of  con- 
struction would  be  wholly  incompatible  with  the  nature  of  the  ele- 
ment and  most  of  the  important  purposes  for  which  it  was  created  ; 
and,  indeed,  in  most  cases,  would  prevent  its  beneficial  enjoyment 
at  all.  As  remarked  by  Chancellor  Kent,  4 There  will,  no  doubt, 
inevitably  be,  in  the  exercise  of  the  perfect  right  to  the  use  of  the 
water,  some  evaporation  and  decrease  of  it,  and  some  variations 
in  the  weight  and  velocity  of  the  current.  But  de  minimis  non 
curat  lex , and  a right  of  action  by  the  proprietor  below  would  not 
necessarily  flow  from  such  consequences,  but  would  depend  upon 
the  nature  and  extent  of  the  complaint  or  injury,  and  the  manner 
of  using  the  water.  All  that  the  law  requires  of  the  party  by  or 
over  whose  land  a stream  passes,  is,  that  he  should  use  the  water 
in  a reasonable  manner,  and  so  as  not  to  destroy  or  render  useless, 
or  materially  diminish  or  affect  the  application  of  the  water  by  the 
proprietors  below  on  the  stream.’  3 Kent,  439.  In  Palmer  v.  Mil- 
ligan, 3 Caines,  312,  Spencer,  J.,  said,  4 The  act  of  erecting  a dam, 
by  the  defendants,  was  a lawful  act,  and,  though  in  its  conse- 
quences slightly  injurious  to  the  plaintiffs,  they  are  remediless. 
The  erection  of  dams  on  all  rivers  is  injurious,  in  some  degree,  to 
those  who  have  mills  on  the  same  stream  below,  in  withholding  the 
water,  and  by  a greater  degree  of  evaporation  in  consequence  of 
an  increased  surface ; yet  such  injuries,  I believe,  were  never 
thought  to  afford  a ground  of  action.’  And  in  Platt  vs.  Johnson, 
15  Johns.  Rep.  218,  Judge  Thompson  says  : 4 Although  some  con- 
flict may  be  produced  in  the  use  and  enjoyment  of  such  rights,  it 
cannot  be  considered,  in  judgment  of  law,  an  infringement  of  the 
right.  If  it  becomes  less  useful  to  one,  in  consequence  of  the  en- 
joyment by  another,  it  is  by  accident,  and  because  it  is  dependent 
on  the  exercise  by  the  equal  rights  of  others.’ 

44  The  loss  of  water,  which  is  merely  incidental  to  the  proper 
use  and  enjoyment  of  it,  cannot,  therefore,  be  considered  an  in- 
jurious diversion  of  the  stream.  The  increased  evaporation,  pro- 
duced by  the  exposure  of  a larger  surface,  by  means  of  the 
erection  of  a dam,  w’ould  be,  in  a loose  sense  of  the  term,  a 
diversion  of  the  water;  but  it  is  not  a diversion,  in  the  technical 
sense  in  which  it  is  used,  when  it  is  intended  to  denote  that 
peculiar  species  of  injury.  The  constant  escape  of  the  water 
from  the  defendant’s  penstocks  was  indeed  literal!}'  a diversion  of 
a portion  of  the  stream  ; but  the  occurrence  of  the  loss  by  this 
means  might,  notwithstanding,  be  merely  incidental  to  the  use  of 
the  water,  and  the  particular  purposes  for  which  it  was  used,  in 
this  instance,  by  the  defendant,  and  should  be  governed  by  no 
other  rule  than  what  would  apply  to  an  incidental  escape  by  any 
other  means.  If,  therefore,  the  defendant  has  not  made  an  un- 


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reasonable  use  of  the  water,  if  she  has  used  it  with  a prudent  and 
cautious  regard  to  the  rights  of  the  plaintiff,  she  is  not  liable, 
although  in  so  doing  there  may  have  been  some  loss  of  the  water. 
If,  on  the  other  hand,  such  use  was  unreasonable,  and,  from  a 
want  of  such  prudence  and  caution,  the  water  was  unnecessarily 
wasted,  the  defendant  is  answerable  for  the  consequences.  . . . 

“ There  being,  therefore,  nothing  wrong  in  using  the  water  by 
means  of  an  artificial  aqueduct,  and  the  defendant  not  being 
necessarily  liable,  because  a portion  of  the  water  not  used  has  not 
returned  to  its  ordinary  channel,  the  question  was,  whether  she 
used  the  water  in  a proper  and  reasonable  manner.  We  think, 
therefore,  notwithstanding  the  facts  admitted  by  the  defendant,  she 
should  have  had  the  benefit  of  having  those  which  she  claimed  to 
have  proved  submitted  to  the  jury,  with  a view  of  ascertaining 
whether  she  was  obnoxious  to  the  charge  of  not  having  done  so.” 

In  other  words,  it  all  comes  back  to  this : in  this  great 
element,  as  it  is  called,  — great  necessity  for  the  existence 
of  mankind,  — will  a small  diminution  on  a navigable  river, 
made  by  taking  one  of  its  sources  for  the  supply  ot  man,  be 
such  an  injury  that  the  party  having  the  right  of  water- 
power below  has  a right  to  complain,  and  say  that  he  is  to 
be  compensated  in  damages  ? 

\_Becess  till  o'clock  P.  M.~\ 

AFTERNOON  SESSION. 

Continuation  of  Gen.  Butler’s  Argument. 

Mr . Chairman  and  Gentlemen : — I now  proceed  to  the 
question,  What  should  be  the  amount  of  damages?  I have 
discussed  thus  far  the  proposition  that  no  damages  should  be 
paid  at  all.  Although  the  matter  in  the  aggregate,  theoreti- 
cally, looks  large,  yet  taken  in  conjunction  with  the  sub- 
ject-matter which  we  were  discussing,  it  is  like  the  weighing 
of  a load  of  hay  by  a scale  that  only  turns  with  four  pounds, 
and  which,  after  many  millions  of  pounds  had  been  weighed, 
would  show  a large  diminution  ; but  in  the  practical  affairs 
of  life,  it  is  only  the  immaterial  things  which  cannot  be 
measured.  But  assuming  now  that  some  twenty  cubic  feet 
(which  I think  is  the  largest  amount  which  is  proved  here) 
per  second  is,  in  the  dry  season,  diverted  from  their  dam, 
of  course  in  any  other  season,  when  they  have  all  that  they 
can  use,  there  is  no  damage,  and  therefore  there  are  no  dam- 
ages to  be  allowed ; and  it  does  not  make  any  difference 
upon  the  question  as  to  the  use  of  the  water,  whether  it  is 
used  by  riparian  proprietors  or  by  others,  because  the  cases 
which  I have  already  read  to  you  carefully  distinguish  be- 


Argument  of  Gen.  Butler. 


161 


tween  a public  right  and  a common  right.  That  is,  the  use 
of  water  for  domestic  purposes  is  a common  right,  common 
to  the  whole  people  ; therefore,  this  being  taken  by  the  Com- 
monwealth for  the  common  use  of  the  people,  certainly, 
where  no  sensible  diminution  is  proved,  — I mean  sensible, 
not  a theory  of  mathematics,  but  sensible  to  the  actual  dimi- 
nution of  the  value  of  the  property,  — there  can  be  no 
claim,  any  more  than  there  can  be  a claim  on  a small  stream 
that  anybody  shall  be  excluded  from  taking  water  himself  or 
watering  his  animals  or  washing  his  clothes  from  its  banks. 
And  it  makes  no  difference  where  the  water  is  carried. 
In  that  regard  I will  give  you  one  or  two  citations. 

I cite  the  Earl  of  Norbury  vs.  Kitchin,  7th  Law  Times, 
page  685,  decided  January  31st,  1863,  in  England  : — 

“ We  are  of  opinion,”  says  Pollock,  C.  B.,  “ that  this  rule  ought 
to  be  discharged.  My  brother  Channell,  who  is  not  now  present, 
was  of  the  same  opinion.  The  action  was  brought  for  withdraw- 
ing water  from  Lord  Norbury’s  service,  and  the  verdict  was  found 
for  the  defendant,  in  respect  of  one  question,  which  is  the  only  im- 
portant question,  namely,  whether  the  defendant  had  taken  an  un- 
reasonable quantity  under  all  the  circumstances.  My  brother 
Martin  laid  down  at  the  trial,  that  no  taking  of  the  water  for  pur- 
poses other  than  those  of  utility  could  be  justified.  The  jury 
therefore,  in  accordance  with  my  brother  Martin’s  direction,  found 
that  the  taking  the  water  for  those  other  purposes  was  not  justi- 
fiable, and  therefore  found  a verdict  for  the  plaintiff,  but  gave  a 
farthing  damages  in  respect  of  those  matters  which  were 
complained  of.  . As  my  brother  Martin,  in  the  course  of 

the  argument,  I think  very  properly,  pointed  out  to  Mr.  Bovill,  to 
what  end  complain  that  it  has  been  improperly  laid  down  that  a 
riparian  proprietor  majr  take  the  whole  in  a case  where  the  flow  of 
water  was  upwards  of  300,000  gallons,  and  it  was  quite  clear  that 
the  defendant  had  never  taken  more  than  from  6,000  to  9,000  gal- 
lons? Whatever,  therefore,  may  be  the  law  in  a case  that  would, 
I should  think,  very  rarely  occur,  and  which  in  my  professional  ex- 
perience I never  met  with,  where  the  riparian  proprietors  were 
contending  about  a few  pints  of  water  flowing  down,  and  who 
should  have  the  smaller  quantity,  yet  in  a case  where  the 
quantity  is  so  abundant  as  in  the  present  case,  to  what  end  com- 
plain that  an  extreme  case  was  alluded  to  and  an  opinion  adopted  of 
a learned  judge  in  a matter,  as  far  as  this  case  is  concerned,  I think, 
purely  hypothetical?  For  whether  or  not  a riparian  proprietor 
may  take  the  whole,  to  the  utter  disregard  of  the  wants  of  those 
to  whom  the  water  is  to  flow,  is  a matter  wholly  immaterial  to  the 
present  question.  . . . The  questions  whether  the  defendant 

had  a right  to  use  the  machinery,  whether  he  had  a right  to  apply 
the  water  to  wash  gas  pipes,  or  to  purify  the  gas  itself,  or  to  use  it 
for  any  other  extraordinary  purposes  of  domestic  life,  not  known 
to  our  ancestors,  do  not  at  all  arise.  None  of  these  questions  were 
so  specifically  presented  as  to  be  in  any  degree  the  foundations  for 
a just  application  for  a new  trial.”  Then  Wilde,  B.,says,  “ I have 


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looked,  with  great  care,  at  the  two  reports  that  have  been  handed 
to  me,  — : the  one  a printed  report  of  nisi  prius  cases,  by  Messrs. 
Foster  & Finalson ; and,  in  that  report,  I find  that  the  learned 
judge  told  the  jury  this  : 4 That  the  defendant  had  no  right  to  take 
more  by  means  of  his  wheels  and  water-works  than  he  would  have 
a right  to  take  otherwise ; but  he  had  a right  to  take  as  much  as 
he  wanted,  so  that  it  was  not  an  unreasonable  quantity,  with  refer- 
ence to  his  neighbor’s  rights.’  Then,  again,  in  the  shorthand 
writer’s  notes,  I find  the  expressions  repeated  over  and  over  again, 
to  this  effect : ‘ This  right  depends  upon  the  reasonable  use  of  the 

water ; according  to  the  law  laid  down  by  Lord  Kingsdown,  it  does 
appear  to  me,  that  the  question  for  you  to  consider  is,  whether  the 
quantity  of  water  that  Mr.  Kitchin  abstracted  is  a reasonable  quan- 
tity. According  to  that  you  have  the  evidence  of  Mr.  Easton. 
And  then  the  learned  judge  reads  the  evidence,  and  then  he  remarks 
upon  what  was  said  about  pumping  out,  and  then  he  again  repeats, 
4 he  is  not  entitled  to  take  more  by  means  of  pumps  than  other- 
wise.’ Then  he  also  remarks  this  : 4 That  it  might  not  be  reason- 

able to  take  a certain  quantity  in  respect  to  a small  stream ; ’ he 
says,  4 It  is  impossible  for  the  human  mind  not  to  compare  quan- 
tities ; when  you  are  talking  of  a reasonable  use,  you  must  con- 
sider the  size  of  the  stream.  Therefore  upon  that  first  question 
you  will  say  whether  or  not  the  use  made  of  this  water  which  the 
defendant  is  entitled  to  use,  not  as  of  favor,  but  as  of  right,  is 
more  than  the  reasonable  use  for  the  purposes  of  his  house,  and 
those  other  matters.’  Then,  finally,  he  disposes  of  the  other 
question  about  damming-up,  and  when  the  question  goes  to  the 
jury,  it  goes  in  this  way,  4 The  substantial  question  is,  aye  or  no, 
is  the  quantity  of  water  that  the  defendaut  has  taken  from  this 
place,  a reasonable  quantity,  with  a view  to  all  the  circumstances  of 
the  case?  That  is  the  real  and  substantial  point.’” 

And  Martin,  B.,  says  : — 

44  Neither  Mr.  Lush  nor  Mr.  Honyman  relied  upon  that,  nor 
Mr.  Bovill  to  any  great  extent.  Here  were  two  persons  who  were 
riparian  proprietors  in  this  stream,  which  flowed  at  the  rate  of 
330,000  gallons  a day  ; and  at  the  outside,  as  was  proved  by  the 
plaintiff’s  witnesses,  the  defendant  took  from  it  6,000  to  9,000 
gallons  a day.  The  real  question  was  whether  a man  who  had  left 
to  him  321,000  gallons  a day,  at  the  outside,  could  complain  of 
his  neighbor  taking  9,000  gallons  or  10,000  gallons  a day ; that 
was  the  real  question.  My  brother  Wilde  has  read  the  terms  in 
which  I left  the  question  to  the  jury ; and  I can  only  say  that,  if 
I had  the  same  question  to  leave  to  the  jury  again,  I would  leave 
it  in  the  same  way.  I believe  it  is  quite  correct,  and  that  in  fact 
there  was  no  other  mode  of  dealing  with  it.  I agree,  with  the 
rest  of  the  court,  that  our  judgment  must  be  to  discharge  the  rule 
for  a new  trial  ” . . . 44  It  appeared  that  the  water-course  in 

question  was  a natural  stream,  which  rose  from  a farm  of  the  de- 
fendant’s called  Piper’s  farm,  adjoining  the  plaintiff’s  park.  From 
the  defendant’s  farm  it  flowed  down  into  the  plaintiff’s  park, 


Argument  of  Gen.  Butler. 


163 


through  a pond  on  the  farm,  just  outside  the  park,  called  Cutmill 
pond.  Here,  in  1858,  the  defendant  had  erected  water-wheels 
and  machinery,  the  effect  of  which  was  to  pump  up  the  water  in 
the  pond  about  150  feet  above  its  level,  and  then  direct  it  by  a 
pipe  to  a supply-tank,  and  thence  to  an  artificial  pond  or  lake  on 
another  property  of  the  defendant’s  called  the  Dunsdale  estate, 
also  adjoining,  and  formerly  forming  one  estate,  with  Valence  or 
Hill  park,  belonging  to  plaintiff.  From  Cutmill  pond  the  natural 
stream  ran  through  the  plaintiff’s  park  to  and  through  several  or- 
namental ponds  or  lakes  therein,  and  to  the  plaintiff’s  mansions ; 
and  the  effect  of  the  defendant’s  work  had  been,  as  was  alleged, 
to  lessen  the  flow  of  water  thereto.  Between  the  park  and  the 
Dunsdale  property  there  is  a ridge  of  land  about  160  feet  above 
the  level  of  Cutmill  pond,  so  that  but  for  the  artificial  works 
the  water  could  not  be  brought  to  the  Dunsdale  estate.  The 
wheel  was  between  Cutmill  pond  and  the  park,  just  inside  the  de- 
fendant’s farm,  so  as  to  intercept  the  stream  as  it  ran  from  the 
pond  into  the  park.  The  wheel  was  a common  water-wheel  con- 
structed with  buckets,  into  which  the  water  fell ; and  the  water 
ran  from  the  pond  upon  it.  The  wheel  worked  two  pumps,  which 
raised  the  water,  and  it  was  then  taken  through  pipes  to  the  reser- 
voir or  supply  tank  on  the  defendant’s  property.  The  tank  was 
153  feet  above  the  level  of  the  pond,  and  it  was  capable  of  con- 
taining 13,000  gallons.  From  that  reservoir  the  water  was  taken 
in  pipes  down  to  the  defendant’s  house.  There  was  also  a waste- 
pipe  connected  with  the  water-works,  by  which  the  water,  which  was 
pumped  up  in  excess  beyond  the  capacity  of  the  reservoir  to  con- 
tain it,  was  carried  off  &nd  discharged  into  the  stream  below  the 
plaintiff’s  premises,  and  out  of  his  reach. 

“ The  cause  was  tried  before  Martin,  B.,  and  a special  jury,  at 
the  Maidstone  summer  assizes,  in  July,  1862,  when  it  appeared  by 
the  plaintiff’s  evidence  that  the  supply  of  the  water  to  the 
plaintiff’s  park  had  been  greatly  lessened  and  deteriorated  ; some- 
times the  supply  had  been  wholly  stopped  by  the  action  of  the 
wheel,  and  at  times  also  it  had  flowed  down  in  a foul  and  dirty 
condition.  The  stream  runs  into  the  river  Darent,  and  the  water- 
bailiff  employed  by  the  mill-owners  on  that  river  was  called  to 
prove  a diminution  in  the  quantity  of  the  water  poured  into  the 
river  from  the  stream  since  the  works  in  question.  The  wheel 
raised  and  diverted  about  10  gallons  a minute,  or  600  gallons  an 
hour ; but  the  water-bailiff  had  not  reported  it  to  the  mill-owners 
since  January,  1859. 

“ On  behalf  of  the  defendant  it  was  contended  that  he  had  a 
right  to  take  away  a reasonable  portion  of  the  water,  so  that  he 
did  not  sensibly  or  materially  diminish  the  quantity  of  water 
available  for  the  plaintiff.  He  denied  that  he  had  done  so  'per- 
manently,although  in  the  course  of  the  erection  of  the  works,  etc., 
or  in  cleaning  the  pond,  etc.,  there  may  have  been  a temporary 
obstruction  of  the  flow  of  water.  The  defendant’s  evidence 
showed  that  the  works  took  up,  on  an  average,  from  6,000  to 
9,000  gallons  a day,  or  one-fortieth  part  of  the  whole  bulk  of  water 
which  ran  into  Cutmill  pond.  The  highest  quantity  of  the  entire 


164 


Essex  Company. 


flow  was  332,000  gallons  a day,  and  9,000  gallons  a day  might 
possibly  be  taken  up  by  the  pumps,  i.  e.,  about  one-thirt3r-seventh 
part  of  the  whole,  and  that  this  was  a proportion  of  the  water 
which,  although  appreciable,  was  not  really  material.” 

" Although  appreciable  was  not  really  material”  That  was 
used  upon  another  estate ; so  that  this  right  to  water  is  a 
common  right.  If  a man  can  get  it  without  trespass,  he 
has  a right  to  use  it  to  a reasonable  extent.  That  reason- 
able extent  is  always,  even  when  he  uses  it  to  inap- 
preciable limits,  to  the  use  of  the  water  below  that.  But 
assuming  that  this  party  had  the  right  to  remuneration, 
let  us  see  what  it  should  be.  And  that  requires  some  little 
consideration.  The  City  of  Boston  ought  to  pay  what 
it  is  worth,  really  worth,  and  no  more.  If  they  pay  more, 
you  do  the  tax-payers  of  the  City  of  Boston  a great  wrong : 
if  they  pay  less,  you  do  a wrong  of  substantially  the 
same  kind  to  the  complainants.  Now,  I believe  that  the 
natural  flow  of  Sudbury  river,  where  we  take  the  water, 
if  left  to  itself,  would  not  give  more  than  20  cubic  feet 
per  second  a day  in  the  dry  season,  when  alone  it 
would  be  valuable.  They  don’t  claim  that  it  gives  more 
than  45,  reckoning  the  wastage,  as  Mr.  Mills  testified. 
Let  us  try  it  from  the  higher  level,  45.  That  is  a mill- 
power  and  a half.  They  have  put  in  a great  deal  of  testi- 
mony to  show  how  very  much  they  expect  to  make  out  of 
their  lands  by  the  use  of  water-power,  all  of  which  is  true, 
and  all  of  which  I hope  they  will  make  ; but  they  have  to 
admit  that  they  would  not  alter  anything  in  the  price  of 
lands  if  they  had  not  this  power.  They  would  think  it  would 
be  more  valuable  if  they  had  so  much  more  water-power, 
but  they  say  they  should  not  alter  the  sale  of  lands  or  the 
price  of  lands.  I think  all  those  considerations  are  too 
remote,  but  there  is  another  class  of  considerations  to  which 
I wish  to  bring  your  very  careful  attention,  because  this  is 
practical.  Suppose  it  is  a mill-power  and  a half.  That,  at 
their  price,  would  be  $30,000 ; $20,000  the  mill-power,  and 
$1,200  a year  they  let  it  for,  which  would  be  6 per  cent. 
When  are  they  going  to  suffer  that  damage  ? Why,  they 
admit  they  are  not  the  sufferers  until  they  have  exhausted 
their  mill-power.  When  will  that  be  done  ? They  have  got 
200,  more  or  less,  — 186  they  admit,  the  smallest  sum,  — and 
they  expect  to  get  more,  and  Mr.  Storrow  thinks  they  have 
got  more.  Now,  they  began  their  works  in  1846,  began 
selling,  and  received  large  payments  then  in  proportion  to 
what  was  sold  them.  Of  course,  they  wanted  their  money  to 
put  up  their  works,  and  now  they  have  got  their  works  up 
they  let  at  about  the  same  sum,  $1,200  a year.  Now,  they 


Argument  of  Gen.  Butler. 


165 


have  been  thirty  years  selling  122  mill-powers,  building  up 
a great  city,  and  of  course  the  earlier  sales  were  very  much 
the  most  rapid.  You  will  find  in  the  table  which  I had  put 
in  this  morning  an  answer  to  very  much  of  this  talk  of  the  great 
addition,  by  selling  powers,  to  the  value  of  the  land.  You 
will  find  they  made  no  difference  in  price  whether  they  sold 
one  twelfth  of  a mill-power,  or  whether  they  sold  a whole 
mill-power,  or  six  mill-powers,  or  eight  mill-powers,  and 
forty  mill-powers  would  bring  a large  population,  while  one 
twelfth  would  bring  a very  small  one,  and  undoubtedly  the 
proprietor  would  live  in  the  same  house  and  board  himself ; 
so  that  cannot  be  taken  into  consideration ; and  the  last 
seven  years,  since  1869,  taking  the  fair  average  of  the  years, 
they  have  sold  about  one  mill-power  a year. 

They  have  therefore  got  66  to  sell ; and  at  this  average  it 
will  take  them  66  years  to  sell  out,  to  know,  to  a certain 
extent,  whether  they  had  the  Sudbury  river  empty  or  not. 
Will  it  not,  at  that  rate?  At  the  rate  they  have  gone  on, 
they  have  sold  less  than  six  a year,  all  told,  to  everybody. 
Now  you  see  the  wisdom  of  the  statute  in  fixing  that  you 
shall  not  begin  to  pay  until  you  take  the  water,  and  I will 
show  you  why.  Suppose  you  paid  them  what  the  water  is 
worth  to-day,  and  before  they  are  affected  by  it.  If  they 
do  not  want  to  sell  any  faster  than  they  have  for  the  last 
seven  years,  it  would  be  66  years  before  they  would  be  in- 
jured. You  pay  them  $30,000  to-day,  and  what  would  be  their 
position  ? Put  that  at  6 per  cent. , and  it  would  double  once 
in  ten  years,  and  in  66  years  it  would  get  to  be  about  $640,000  ; 
that  is,  if  you  give  them  $30,000  to-day  for  this  mill- 
power  and  a half,  which  they  will  want  to  use  66  years  hence, 
that  money  capitalized  would  be  greater  than  their  capital 
stock  to-day  before  they  can  be  injured,  and  it  will  take  30 
years  to  go  on  and  sell  out  at  about  the  same  rate  that  they 
have  been  selling  out,  and  that  doubled  would  quadruple  the 
amount.  Now  this  is  not  fanciful  by  any  manner  of  means. 
If  you  will  look  into  the  English  books  of  engineers  making 
estimates,  you  will  find  they  always  take  this  into  account  in 
what  they  call  " capitalization  of  the  property,”  capitaliza- 
tion of  the  sum ; and  this  is  practically  inappreciable,  is  it 
not  ? They  will  not  be  harmed  until  they  come  to  the  time 
when  this  amount  of  water-power  makes  a difference  with 
them ; until  their  water-power  gets  so  low  that  they  can  use 
so  much  more  and  need  so  much  more,  and  they  can  tell  that 
they  have  lost  it.  They  cannot  tell  now  that  they  have  lost 
it.  They  admit  that  they  cannot  tell  whether  they  have  lost 
nearly  four  times  as  much,  certainly  nearly  three  times  as 


166 


Essex  Company. 


much ; they  cannot  tell  to-day.  Now,  they  will  not  be 
harmed  until  they  use  up  this  water-power,  until  they  want 
their  last  mill-power.  As  long  as  this  turns  and  runs  over 
the  dam  to  waste,  it  is  of  no  more  use  than  the  spring  flood, 
not  a bit.  Now,  if  you  give  them  a sum  of  money  equal  to 
$30,000,  doubling  once  in  ten  years,  and  if  it  were  30  years, 
take  it  at  the  same  rate,  it  would  get  to  be  $180,000,  at  6 
per  cent. , which  is  the  basis  upon  which  they  made  all  their 
calculations  ; if  it  goes  to  66  years,  which  is  the  rate  of  sell- 
ing mill-powers  as  that  table  shows  for  the  last  seven  years, 
it  would  double  six  times  and  get  up  to  something  like 
$640,000, — I mean  to  say,  more  or  less.  Therefore,  if  you 
should  give  them  a sum  to-day  of  $1,000,  that,  put  at  in- 
terest at  6 per  cent.,  would  be  worth  more  than  the  whole 
power  would  be  worth  to-day  ; and  you  are  to  pay  them  what 
they  are  damnified;  and  they  all  admit,  everybody  admits, 
that  until  they  have  sold  their  water  (for  they  simply  sell  and 
have  the  water  for  sale) , until  they  have  sold  their  water  down 
66  mill-powers  more,  at  the  lowest  calculation,  they  will 
not  miss  this  water.  How  are  they  damaged?  How  are 
they  damnified  ? Now,  what  sum  are  you  going  to  give  them  ? 
Do  you  propose  to  take  a sum  out  of  the  City  of  Boston, 
before  the  City  of  Boston  makes  one  hair  white  or  black,  or 
takes  one  drop  of  water  which  they  can  use  from  them,  that 
will  amount  to  more  than  their  capital  stock  ? I thiuk  not. 
You  will  find  it  in  the  various  works  of  the  leading  engineers, 
where  they  take  this  question  of  capitalization  into  account, 
as  it  ought  to  be  taken  into  account.  I put  it  to  you,  just  and 
sensible  and  fair  men,  sitting  here  to  deal  between  party  and 
party,  how  much  will  you  give  to-day  for  water  technically 
taken  which  would  simply  run  over  the  dam?  And  you 
might  just  as  well  give  them  damages  for  that  which  runs  in 
the  spring,  when  they  cannot  use  it,  as  for  this  which  runs 
in  the  summer,  when  they  cannot  use  it,  and  which  is  flowing 
over  the  dam  as  we  saw  it  when  we  were  there.  I think 
this  is  a matter  which  -is  worthy  of  your  careful  and  serious 
consideration. 

There  is  another  question  which  I want  to  put  to  you,  al- 
though we  had  a little  fencing  about  it,  and  my  friend,  Mr. 
Storrow,  when  he  was  on  the  stand,  testified  in  relation  to 
it,  being  the  expense  of  $200,000.  Gentlemen,  they  have 
got  a reservoir  up  at  Winnipiseogee  which  affords  them  400 
cubic  feet  per  day,  and  I say  we  don’t  take  but  20  in  the  dry 
season.  They  could  build  another  reservoir  somewhere  else, 
and  they  would  have  more  than  enough  to  pay  for  Winnipi- 
seogee before  this  loss  would  harm  them,  if  you  should  give 
them  $5,000  in  the  reasonable  and  ordinary  sales  that  they 


Argument  of  Gen.  Butler. 


167 


make  of  their  water,  and  the  average  sales  they  have 
made  for  the  last  seven  years.  Now,  all  I ask  is  justice  be- 
tween man  and  man.  I am  not  going  to  detain  you  to  go 
into  these  very  elaborate  tables,  or  the  very  elaborate  calcu- 
lations that  have  been  made  about  the  value  of  these  sales  of 
land.  I don’t  think  they  belong  to  this  case.  I think  they 
are  too  remote.  I think  this  is  a class  of  considerations 
which  does  not  enter  into  this  question.  This  is  a practical 
question,  because,  don’t  you  see,  if  you  charge  us,  or  we 
should  pay,  you  charge  us  for  all  their  expected  profits,  for 
the  loss  of  a mill-power  and  a half,  and  the  expected  profits 
of  all  their  land,  when  they  can  put  up  a steam-engine  for  a 
thousand  dollars,  or  $1,500,  which  would  give  them  a mill- 
power  and  a half,  and  they  would  have  all  the  power,  which 
this  mill-power  and  a half  would  give  them,  to  draw  round  a 
population  to  enable  them  to  sell  their  land  ? Why,  that  will 
not  do.  Therefore,  I say,  all  that  is  too  remote ; but  the 
simple  practical  question,  brought  down  to  its  lowest  terms, 
is,  what  expenditure  would  make  them  whole  when  they  feel 
the  loss,  and  give  them  that.  Of  course,  I don’t  mean  to  say 
that  you  must  not  include  a sum  of  interest  which  would  be 
appropriate  ; but  interest  would  not  be  a fair  compensation. 
But  I say  again,  that  this  is  not  going  to  affect  them  for  a long 
series  of  years,  and  whatever  sum  they  may  be  allowed,  put 
at  interest,  will  very  much  more  than  compensate  them.  I 
don’t  know  that  I can  aid  you  in  any  other  matter.  W e have 
not  calculated  the  water-shed  of  the  Merrimack  river,  and  for 
the  reason  that  we  did  not  think  there  were  any  maps  of  such 
reliability  that  we  could  calculate  it.  We  have  calculated 
with  care  the  water-shed  of  Sudbury  river,  and  we  do  not 
find  any  occasion  to  dispute  the  calculation  of  that,  because 
the  maps  are  so  perfect  that  we  find  we  cannot  dispute  that 
amount.  One  caution,  perhaps.  I am  not  carrying  this  ar- 
gument to  a place  where  there  is  a sensible  or  reasonable 
diminution  of  water.  I am  confining  it  wholly  to  the  Essex 
Company.  The  views  which  I have  presented  to  you  apply  to 
many  of  the  cases  — to  all  below  Mr.  Simpson’s  dam  ; and  I 
have  been  a little  careful  in  speaking  thus  at  large  in  this 
case,  because  I do  not  propose  in  future  arguments  to  recur 
to  them  again,  but  to  let  each  case  stand  upon  its  own  peculiar 
merits,  so  far  as  argument  is  concerned,  and  in  settling  the 
particulars  respecting  which  we  differ,  and  the  facts. 

I have  only  one  more,  and  a very  pleasant  duty  to  per- 
form, and  that  is  to  thank  you  for  the  careful  and  quiet  and 
patient  attention  with  which  you  have  listened  to  me,  and  to 
express  my  obligations  for  the  hearing  which  I have  received. 


168 


Essex  Company. 


Closing  Argument  of  Elias  Merwin,  Esq.,  for  the 
Petitioners. 

Mr.  Chairman  and  Gentlemen: — Before  proceeding  to  dis- 
cuss what  I conceive  to  be  the  substantial  question  upon 
which  you  are  to  pass,  I will  briefly  consider  some  prelim- 
inary objections  which  have  been  submitted  in  behalf  of  the 
respondents  to  the  allowance  of  this  petition  for  the  assess- 
ment of  any  damages  in  behalf  of  the  Essex  Company.  The 
first  objection  taken  is,  that  there  is  no  evidence  that  any  de- 
mand was  made  upon  the  City  of  Boston  for  the  payment  of 
damages  prior  to  the  institution  of  this  petition.  My  answer 
to  that  is  that  the  act  under  which  this  petition  is  brought 
requires  no  such  demand.  The  only  provision  having  any 
possible  relation  to  that  subject  is  in  the  sixth  section  of  the 
original  act,  and  is  as  follows  — 

“ And  if  the  owner  of  any  land,  water,  or  water-rights  which 
shall  be  taken  as  aforesaid,  or  other  person  who  shall  sustain  dam- 
ages aforesaid,  shall  not  agree  upon  the  damages  to  be  paid  there- 
for, he  may  apply,  by  petition,  for  the  assessment  of  his  damages/’ 
etc. 

Not  to  detain  the  board  with  any  general  argument  on 
that  matter,  it  is  enough  to  say  that  this  precise  question 
arose  in  the  case  of  Burt  vs.  Brigham,  117  Mass.  R.  307,  in 
relation  to  the  land  taken  for  the  United  States  post-ofiice 
building,  and  in  which  the  Supreme  Court  have  held  that 
this  provision,  or  a provision  similar  in  its  terms  to  this, 
does  not  require  any  proof  of  any  preliminary  action  between 
the  parties  upon  the  matter ; but  the  very  fact  that  the  peti- 
tion is  instituted  is  sufficient  evidence  that  the  parties  have 
not  agreed  upon  the  damages  which  the  one  shall  pay  and 
the  other  shall  receive.  The  petition  is  of  itself  the  best 
evidence  that  the  parties  have  not  " agreed.” 

Commissioner  Russell.  On  the  ground  that  it  is  always 
competent  for  a petitioner  not  to  agree  ? 

Mr.  Merwin.  Yes,  sir.  The  case  is  perfectly  familiar 
to  the  chairman,  and  therefore  I do  not  dwell  upon  it. 

The  next  objection  is  that  there  is  no  proof  that  this  water 
has  actually  been  diverted  or  withdrawn. 

In  reference  to  the  first  objection,  I am  reminded  to  call 


Argument  for  the  Petitioners. 


169 


your  attention  further  to  the  fact  and  consideration  that  the 
petition  alleges  that  the  city  have  not  agreed  upon  the  dam- 
ages to  be  paid  therefor,  and  have  not  offered  to  pay  to  the 
petitioner  any  sum  whatever  for  such  damages  ; and  that 
allegation  is  not  denied  nor  in  any  way  met  by  the  answer. 

I therefore  pass  to  the  second  objection,  which  is,  that  there 
is  no  proof  that  the  water  has  actually  been  withdrawn  or 
virtually  diverted  by  the  city  under  the  authority  of  this  act, 
and  that  such  preliminary  withdrawal  or  diversion  is  neces- 
sary before  any  application  for  damages  can  be  made.  Upon 
'that  point  I desire  only  to  refer  to  the  evidence  of  Mr. 
Frost;  and  for  the  sake  of  accuracy  I will  read  from  the 
report  of  his  testimony  one  or  two  questions  and  answers  : — 

44  Q.  Can  yon  tell  me  whether  the  City  of  Boston  diverted  the 
water  of  the  Sudbury  river,  and  stopped  it  from  their  dam  and 
from  flowing  down  at  any  time  of  the  year,  — the  year  of  1875? 

44  A.  Yes,  sir  ; they  did. 

44  Q.  When? 

44  A.  During  part  of  the  months  of  July  and  August. 

44  Q.  Did  you  have  any  occasion  to  notice  it  at  that  time,  and 
did  you  notice  it  particularly  ? 

u A.  Yes,  sir. 

44  Q.  Have  they  done  it  since  then? 

44  A.  Yes,  sir.” 

The  board  will  recollect  that  there  was  no  cross-examina- 
tion of  the  witness  upon  this  point. 

General  Butler.  Oh,  yes,  there  was.  I asked  him  if 
it  flowed  down  the  old  channel  of  1872. 

Mr.  Merwin.  Very  well.  It  is  immaterial  through  what 
channel  it  passed  after  it  was  diverted  by  the  city.  It  was 
diverted  by  their  dam,  and  I take  it  as  a piece  of  the  history 
of  this  case  that  the  attention  of  the  commissioners  was 
drawn  by  the  city,  through  their  counsel,  to  the  dam  and  the 
position  of  it ; and  we  have  the  fact  that  by  that  dam  the 
water  was  diverted,  certainly  for  portions  of  two  months  in 
the  year  1875,  so  that  we  are  willing  to  proceed  upon  the 
testimony  which  is  before  you  upon  that  point  without  further 
discussion  of  it. 

It  is  next  said  that  certain  rights  existed  in  the  Middlesex 
canal  to  the  waters  of  the  Concord  river,  and  that,  if  I un- 
derstood the  argument,  that  right  reverted  to  the  Common- 
wealth, and  has  passed  to  the  City  of  Boston,  and  that  so  far 
as  any  right  to  the  water  of  the  Merrimack  river  has  been  ac- 
quired in  that  way  by  the  City  of  Boston,  these  petitioners 
have  no  claim  for  any  damages  which  they  may  have  suffered 


170 


Essex  Company. 


by  the  appropriation  by  the  City  of  Boston  of  the  water  of 
the  Sudbury  to  that  extent. 

General  Butler.  Not  quite  that  the  city  had  acquired 
it,  but  that  you  had  lost  it.  You  never  had  it. 

Mr.  Merwin.  Well,  taking  the  proposition  in  that  form, 
whether  acquired  by  the  city  or  not,  that  the  Essex  Company 
have  no  right  to  it.  Now,  let  us  see.  It  appears  that  a 
charter  was  granted  to  the  Middlesex  Canal,  including  a 
right  to  appropriate  the  water  of  the  Concord  river,  to  a cer- 
tain extent,  for  the  purposes  of  navigation ; that  in  the  year 
1859  a decree  of  the  Supreme  Judicial  Court  of  this  Com- 
monwealth, in  a suit  instituted  by  the  authority  and  direc- 
tion of  the  Legislature  against  this  corporation,  annulled  the 
charter,  and  annulled  any  rights  which  the  Middlesex  Canal 
had  held  under  that  charter ; and  that  an  act  of  the  Legisla- 
ture, to  which  you  were  referred  this  morning  by  the  learned 
counsel  for  the  respondents,  was  subsequently  passed  (St. 
1860,  ch.  203),  undertaking  to  confirm  the  decree  of  the 
Supreme  Court  in  that  respect ; and  by  the  terms  of  that  act 
all  rights  of  this  corporation  were  annulled,  — not  transferred 
to  the  Commonwealth  or  to  any  other  body  or  person,  — but 
were  annulled. 

General  Butler.  " Seized  to  the  Commonwealth.” 

Mr.  Merwin.  " Seized  and  annulled;  ” and  therefore  they 
ceased  to  exist,  precisely  as  if  no  such  charter  had  ever  ex- 
isted. There  was  no  transfer  or  conveyance  in  legal  effect, 
by  that  decree  or  by  the  act  of  the  Legislature,  from  the 
Middlesex  Canal  to  any  other  person  or  body,  but  an  annihi- 
lation of  all  the  rights  and  franchises  and  titles  which  had 
previously  existed  in  the  Middlesex  Canal,  by  virtue  of  their 
charter,  and  any  acts  lawfully  done  in  pursuance  of  it.  If 
that  is  so,  then,  of  course,  the  rights  of  all  parties,  so  far  as 
they  have  any,  to  the  water  of  the  Concord  river  are  to  be 
’determined  precisely  as  if  the  Middlesex  Canal  never  had  had 
an  existence.  That  is  our  first  answer  to  the  proposition  of 
the  learned  gentleman. 

The  second  is,  that  if  any  right  remained  to  the  use  of  this 
water  for  the  purposes  of  navigation  it  has  been  lost  by  ad- 
verse use  by  the  Essex  Company,  in  common  with  the  other 
riparian  proprietors  of  this  stream,  for  a period  of  more  than 
twenty  years.  The  decision  referred  to  this  morning,  of  7th 
Gray,  is  not  in  conflict  with  that  proposition,  which  depends 
upon  the  plain  fact,  that  there  has  been  this  adverse  use  for 
a period  of  more  than  twenty  years,  beginning  with  the  time 
when  the  Middlesex  Canal  Company  ceased  to  use  the  canal 
as  a canal,  namely,  in  1851.  The  case  in  7th  Gray  merely 
determined  that  at  that  time  (the  decision  was  made  in  1856) 


Argument  for  the  Petitioners. 


171 


the  mere  non-user  by  this  corporation  of  its  franchises  or  cor- 
porate rights  did  not  amount  at  that  time  to  a forfeiture  or 
an  abandonment  of  their  corporate  rights,  but  it  does  not  de- 
termine that  if  the  Essex  Company  have,  adversely  to  the 
clams  of  this  corporation,  used  all  the  water  of  this  stream 
for  twenty  years,  the  Middlesex  Canal  Company  has  not  now 
lost  — in  1875  or  1876  — whatever  title  it  may  have  origi- 
nally possessed  to  the  waters  of  this  stream  for  the  purposes 
of  navigation,  by  adverse  use. 

But,  in  the  third  place,  we  submit  that  if  there  is  any  title 
existing  anywhere  — or  (as  was  once  said  in  reference  to  an 
unpublished  decision  of  our  Supreme  Court)  " lurking  ” any- 
where around  in  the  Commonwealth, — a title  in  the  Com- 
monwealth itself,  or  in  anybody  else,  to  use  the  waters  of 
this  river  for  the  purposes  of  navigation  in  that  canal,  we 
submit,  as  a matter  of  fact,  that  that  right,  in  the  estimation 
of  this  board,  will  not  diminish  to  the  extent  of  one  dollar 
the  value  of  the  water  power  of  the  Essex  Company  at  Law- 
rence ; because,  in  view  of  the  condition  of  things,  of  the 
canal  itself,  of  what  has  taken  place  for  the  last  twenty  or 
thirty  years  — - the  competition  which  the  canal  would  suffer  by 
the  railroad  which  runs  along  its  line  — it  is  not  within  the 
bounds  of  human  probability  that  anybody,  not  even  the 
Commonwealth,  would  deem  it  to  its  financial  advantage  to 
operate  that  canal  as  a means  of  navigation,  or  turn  the 
waters  of  the  Merrimack  into  it  for  that  purpose  ; and,  there- 
fore, that  it  is  not  a consideration  to  be  weighed  as  among 
the  probabilities  that  such  an  outstanding  right,  if  such  right 
did  exist,  would  be  likely  to  be  exercised  so  as  to  diminish 
practically  the  value  of  any  mill-power  upon  that  stream. 
And  you  will  judge,  gentlemen,  if  you  have  any  doubt  upon 
these  considerations,  as  to  whether  such  a title  is  extant,  or 
whether  it  is  extinct,  how  far  that  fact  affects,  if  at  all,  the 
value  of  the  water-power  of  the  Essex  Company ; and  I imag- 
ine you  will  find  it  to  be  of  that  inappreciable  and  unmeas- 
urable value  and  extent  of  which  my  learned  friend  on  the 
other  side  has  had  so  much  to  say. 

Much  of  the  learned  counsel’s  argument,  and  the  cases 
which  he  has  cited  in  support  of  it,  have  had  reference  to  the 
simple  proposition  that  the  riparian  proprietor  upon  the  bor- 
ders of  a stream  has,  to  a certain  extent,  a right  to  the  use 
of  the  waters  of  that  stream,  and  if  the  use  which  he  thus 
makes  of  it  is  within  reasonable  limits,  for  domestic  and 
agricultural  and  other  well-defined  and  known  purposes,  a 
mill-owner  below,  on  the  same  stream,  or  any  other  person 
having  a right  to  the  natural  flow  of  the  water  on  the  same 


172 


Essex  Company. 


stream  below  him,  cannot  object ; and  such  use  by  the  ripa- 
rian proprietor  furnishes  no  legal  ground  of  action  if  he  does 
not  go  beyond  this  reasonable  and  ordinary  and  accustomed 
use  of  the  water  of  the  stream.  But,  gentlemen,  we  are  not 
considering  any  such  case  as  that  here.  I have  yet  to  learn 
that  the  City  of  Boston  dwells  on  the  banks  of  the  Sudbury, 
and  that  they  propose  to  use  the  water  of  that  stream  in  this 
natural  and  accustomed  manner,  returning  it  to  its  natural 
channel  after  they  have  used  it  in  this  reasonable  and  ordi- 
nary method.  My  learned  friend’s  argument,  if  he  will  allow 
me  to  criticise  it  so,  is  an  entire  fallacy.  He  presents  to 
your  consideration,  and  cites  authorities  to  maintain,  a famil- 
iar principle  of  law  which  has  no  application  whatever  to  the 
facts  of  this  case. 

The  question  here  is  not  between  the  Essex  Company  and 
the  riparian  proprietor  upon  the  banks  of  the  Sudbury,  or 
upon  the  banks  of  the  Merrimack.  We  are  not  saying  to 
Mr.  A or  Mr.  B,  upon  the  banks  of  either  of  those  rivers, 
" You  shall  not  water  your  cattle  from  those  streams,  or  ap- 
ply so  much  of  the  water  of  this  stream  as  is  necessary  for 
your  domestic  or  ordinary  agricultural  purposes.”  On  the 
contrary,  the  City  of  Boston  has  taken,  not  any  per  cent., 
but  the  whole  of  this  upper  Sudbury.  They  appropriate  the 
whole  of  it.  Not  by  virtue  of  any  natural  right,  not  by  vir- 
tue of  any  artificial  right,  or  any  right  growing  out  of  the 
usage  of  society  as  dwellers  upon  the  banks  of  that  stream ; 
and  but  for  the  act  of  the  Legislature,  under  which  they 
assume  to  proceed,  their  diversion  of  the  water  would  be  a 
trespass.  They  undertake  to  divert  the  whole,  the  hundred 
per  cent,  of  the  waters  of  the  stream  above  that  dam  for 
their  own  purposes.  And  they  do  this,  sir,  not  merely  for 
domestic  purposes,  not  merely  for  the  purpose  of  affording 
water  to  drink  to  the  inhabitants  of  the  City  of  Boston,  but 
under  the  terms  of  the  act  they  propose  to  divert  it  for  any 
and  for  all  purposes  to  which  they  may  choose  to  apply  it, 
or  sell  it  to  others  to  be  applied ; for  creating  mill-power, 
and  running  machinery  if  they  find  it  to  their  profit  to  use  it 
in  that  way,  or  for  supplying  the  inhabitants  of  the  city  with 
water  to  drink,  or  to  wash  their  clothes  with,  so  that  they 
may  present  a respectable  appearance  to  my  learned  friend 
on  the  other  side.  And  as  an  illustration  of  this  I know 
nothing  better  than  the  case  cited  by  my  friend  this 
morning.  I mean  the  case  against  the  members  of  the 
Water  Board  by  the  Wamesit  Company,  where  the  Court 
held  that  the  diversion  by  these  gentlemen  of  this  water, 
unless  sanctioned  by  the  express  terms  of  this  act,  although 


Argument  for  the  Petitioners. 


173 


it  was  to  be  used  by  the  City  of  Boston,  was  an  uulawful 
act,  and  therefore  clearly  was  not  such  an  act  as  came 
within  the  exercise  of  any  right  of  a riparian  proprie- 
tor or  otherwise.  And  this  act  under  which  alone  they 
take  requires  them  to  pay  damages  for  all  they  take. 

We  thus  come,  I think,  gentlemen,  to  the  consideration 
of  the  real  issue  in  this  case.  By  virtue  of  the  act,  to 
which  you  have  been  frequently  referred,  the  City  of  Boston 
was  authorized  to  take  and  appropriate  the  waters  of  this 
Sudbury  river,  paying  to  all  persons  or  parties  who  were 
injured  in  any  respect,  in  their  legal  rights  or  property,  by 
this  taking,  such  damages  as  these  commissioners  or  the 
commissioner  provided  for  by  the  act  should  assess ; those 
damages  being,  of  course,  that  amount  which  the  parties 
respectively,  in  the  consideration  of  the  tribunal  to  whom 
that  question  was  referred,  had  actually  suffered.  And  the 
question  here  is,  What  damages  have  the  Essex  Company 
sustained,  or  will  they  sustain,  by  virtue  of  the  diversion  of 
this  water  by  the  City  of  Boston  ? As  a preliminary  con- 
sideration, I desire  to  call  your  attention  to  the  fact,  which 
is  a very  familiar  one,  of  course,  to  this  board,  that  the  com- 
pensation which  is  to  be  awarded  to  the  Essex  Company  is 
to  be  awarded  now  for  all  time.  Under  the  decisions  of 
the  Supreme  Court  of  this  State,  under  acts  similar  to  this, 
it  has  been  held  that  in  legal  contemplation  the  injury  to  the 
party  is  done  when  the  taking  is  effected  by  the  city  or  the 
corporation,  or  the  party  who,  under  the  act,  is  authorized  to 
take  the  property  or  do  the  act  which  results  in  the  damage  ; 
and  that  the  tribunal  to  whom  the  assessment  of  damages  is 
referred  is  to  consider  and  decide,  once  for  all,  not  merely 
what  the  party  has  suffered  up  to  the  time  of  the  filing  of 
the  petition  or  the  hearing  of  the  case,  but  what  he  will 
suffer,  during  all  time,  from  the  act  which  is  the  ground  of 
the  claim  of  damage ; and  therefore,  sir,  the  amount  which 
you  are  to  assess  in  this  case  is  such  as  will  indemnify  the 
Essex  Company  from  this  time  forth  forevermore  for  the  act 
of  the  City  of  Boston  in  diverting  the  waters  of  the  Sudbury 
river  at  the  point  where  they  have  diverted  them. 

The  measure  of  our  damages  is,  not  what  we  have  already 
appreciably  suffered,  but  whatever  we  may,  under  any  pos- 
sible contingency,  hereafter  suffer  by  the  diversion  of  the 
Sudbury  river.  And  that  indemnity  must  be  given  now , — 
once  for  all.  If  any  injustice  is  now  done,  by  reason  of 
insufficient  compensation,  it  can  never  be  redressed  here- 
after. (Ipswich  Mills  vs,  County  Commissioners,  108 
Mass.,  364.) 

It  is  wholly  immaterial,  in  our  view  of  this  case,  whether 


174 


Essex  Company. 


the  actual  damage  up  to  the  present  time  has  been  appreci- 
able or  not,  if  we  satisfy  you  that,  by  the  diversion  of  this 
water,  our  water-power  is,  or  will  be,  so  materially  reduced 
that  we  shall  lose  financially  by  reason  of  that  taking  or 
diversion.  And  now  that  brings  me  to  the  real  question  in 
this  case,  which  is,  To  what  extent  does  the  diversion  of  this 
water  diminish,  or  will  it  diminish,  the  water-power  of  the 
Essex  Company?  I am  relieved,  gentlemen,  from  the  neces- 
sity of  going  into  much  detail  in  discussing  that  question,  by 
the  fact  that  the  testimony  which  we  have  submitted  to  you, 
for  the  purpose  of  showing  what  amount  of  water  passes  the 
dam  of  the  Essex  Company  at  Lawrence,  and  what  amount 
of  mill-power  is  furnished  by  it,  is  not  controverted  seriously 
by  the  respondents  in  this  case.  We  have  submitted  to  you, 
by  the  testimony  of  Mr.  Storrow  and  Mr.  Mills,  certain  ta- 
bles and  measurements,  and  certain  conclusions  derived  from 
them,  which  fix  the  quantity  of  the  water  and  the  amount  of 
the  mill-power  at  those  points,  and  I have  no  doubt  it  will 
be  a great  satisfaction  to  you,  as  it  certainly  is  a great  relief 
to  the  petitioners,  that  those  conclusions  and  statements,  and 
that  that  evidence  in  detail,  may  be  assumed  to  be  as  abso- 
lutely correct  and  reliable  as  human  skill,  and  fidelity,  and 
truth  applied  to  such  topics,  can  make  it.  The  City  of  Bos- 
ton has  been  aided,  and  is  aided  to-day,  by  a skilful  and 
competent  engineer  ; it  has  all  the  facilities  which  can  possi- 
bly exist  in  the  nature  of  things  for  showing  any  error  or 
mistake  in  the  calculations  which  have  been  submitted  to 
you  on  the  part  of  the  petitioners,  if  such  mistakes  exist, 
or  any  statement  or  omission  which  affects  the  conclusions 
stated  by  those  witnesses ; and  we  have,  directly  and  indi- 
rectly, the  most  significant  and  conclusive  admission,  that  at 
least  the  basis  upon  which  we  proceed,  and  upon  which  we 
ask  you  to  proceed,  in  the  assessment  of  these  damages,  is 
practically,  and  I might  almost  say,  absolutely  and  mathe- 
matically, correct.  So  that,  gentlemen,  your  only  anxiety 
and  scrutiny  will  be  to  see  that  no  false  conclusion  is  drawn 
from  premises  which  we  may  all  assume  to  be  absolutely  cor- 
rect, and  to  be  all  that  bear  materially  upon  these  questions. 
It  is,  then,  conceded  that  the  Merrimack,  previous  to  the 
diversion  of  the  Sudbury  by  the  City  of  Boston,  furnished  a 
minimum  at  Lawrence  of  2,400  cubic  feet  a second  during 
twenty-four  hours,  and  that  is  equivalent  to  145  mill-powers 
for  sixteen  hours,  or  165  mill-powers  for  fourteen  hours,  or 
185  mill-powers  for  twelve  hours.  How  much  of  that  was 
supplied  by  the  Sudbury,  which  has  been  diverted,  is  the 
next  question.  Well,  gentlemen,  upon  that  question  there 
can  be  no  doubt. 


Argument  for  the  Petitioners. 


175 


It  has  been  stated  to  you  by  these  gentlemen,  that  human 
skill  and  experience  have  devised  no  better  way  of  reaching 
a proper  answer  to  that  question  than  by  the  mode  adopted 
by  them  in  this  case,  and  that  is  to  ascertain,  in  the  first 
place,  the  area  of  the  whole  water-shed  of  the  Essex  Company 
producing  this  2,400  cubic  feet  per  second  for  twenty-four 
hours,  and  then  ascertaining  what  proportion  of  that  water- 
shed belongs  to  the  Sudbury,  which  has  been  diverted ; and 
if  the  geographical  proportion  of  the  water-shed  which  has 
been  diverted  is,  say  ^y  of  the  whole  area,  and  if  that  ^y  is 
at  least  as  good  a productive  area  as  the  remaining  then 
for  all  human  and  practical  purposes  you  have  the  best  and 
surest  method  of  arriving  at  the  amount  which  is  furnished 
by  that  Jy  in  the  one  case,  and  which  is  lost  to  us  by  its 
diversion  in  the  other.  Well,  now,  upon  that  point,  gentle- 
men, there  is,  — I think  I do  not  state  it  too  strongly,  — 
there  is  absolutely  no  contradiction ; and  you  will  not  fail  to 
give  to  that  consideration  all  the  force  to  which  it  is  entitled 
when  you  perceive  how  vital  it  is,  not  only  to  the  petition- 
ers but  to  the  respondents,  in  arriving  at  a true  conclusion 
in  this  case,  and  how  open  and  accessible  to  the  respondents 
have  been  all  the  means  desirable  to  controvert  the  position 
which  we  have  taken  in  this  respect,  if  that  position  were  in 
any  particular,  or  to  any  extent,  incorrect  or  unsound.  If 
there  had  been  the  least  exaggeration  on  the  part  of  our  wit- 
nesses in  defining  the  limits  of  this  area,  or  in  characterizing 
it  as  a water-shed,  the  respondents  have  been  in  the  position, 
unquestionably,  to  meet  and  to  criticise,  and  to  overcome 
whatever  was  wrong  or  exaggerated,  and  to  give  to  you  the 
precise  state  of  the  case.  I therefore  submit,  sir,  as  I did 
upon  the  other  point,  that  in  proceeding  in  the  consideration 
of  this  case  you  may,  to  a degree,  beyond  what  ordinarily, 
indeed  seldom,  happens  in  the  course  of  judicial  investiga- 
tions, take  as  absolutely  true  that  the  area  of  the  Sudbury  is 
-gty  of  our  total  water-shed,  and  that  in  production  it  is  at 
least  -gty  of  the  whole  area  of  the  petitioners’  water-shed,  and 
that  therefore  the  amount  which  is  diverted  by  the  action  of 
the  city,  — the  result  of  their  action  is  to  divert  Jy  of  the  water 
which  has  previously  flowed  to  our  dam  and  furnished  us 
with  mill-power. 

Mr.  Child.  We  don’t  understand  that  the  city  admit 
that,  Mr.  Merwin.  We  don’t  understand  that  the  city  admit 
that  the  amount  of  water  is  ^y,  although  we  understand  the 
area  is  jfe. 

Mr.  Merwin.  I am  coming  to  that,  sir.  I don’t  mean 
to  say  they  admit  in  terms,  although  I have  not  heard  it  denied 
till  now,  and  the  whole  argument  of  General  Butler  pro- 


176 


Essex  Company. 


ceeded  upon  the  assumption  that  it  was  not  only  ^y  jn  area, 
but  in  productiveness,  and  I have  heard  no  intimation  to 
the  contrary ; and  in  reply  to  the  suggestion  which  has  been 
made,  it  was  distinctly  admitted,  — when  we  proposed  to  offer 
proof  of  the  point, — it  was  distinctly  admitted  by  respondents 
that  the  Sudbury  area  was,  at  least,  as  good  as  the  remain- 
ing portion  of  the  petitioners’  area. 

Mr.  Child.  We  don’t  deny  the  areas,  but  we  do  deny 
that  the  Sudbury  dam  is  -g*y  of  the  area. 

Mr.  Merwin.  I don’t  care  to  discuss  words  with  the 
learned  gentleman,  but  this  fact  cannot  be  removed  from  the 
case.  We  offered,  or  proposed  to  offer,  testimony  to  show 
that  the  upper  Sudbury  area  was  as  good,  at  least  as  good, 
as  any  other  portion  of  the  petitioners’  area  for  producing 
water  and  putting  it  upon  their  dam  at  Lawrence. 

Commissioner  Russell.  As  the  average,  was  it  not? 

Mr.  Merwin.  As  good  as  the  average. 

Mr.  Child.  We  deny  that.  It  is  simply  this,  that  the 
storage  basins  on  the  Merrimack  river  and  Lake  Winni- 
piseogee  make  a great  difference. 

Mr.  Merwin.  That  brings  me  to  a consideration  that  I 
was  about  to  advert  to  in  another  connection,  but  I might  as 
well  dispose  of  it  here  ; and  that  is  the  suggestion  on  the  part 
of  the  respondents  that  these  petitioners  are  only  entitled  to 
what  the  respondents  have  been  pleased  to  call  "the  natural 
flow  of  the  stream.”  What  the  natural  flow  of  the  Merrimack 
or  of  the  Sudbury,  or  any  other  stream  in  Massachusetts,  is,  or 
what  is  meant  by  that  expression,  I am  at  a little  loss  to  know. 
If  the  gentleman’s  position  or  theory  is  correct,  if  I understand 
it,  he  would  remit  us  to  a state  of  nature,  and  you  are  to  look 
at  this  stream  and  your  calculations  are  to  be  based  upon  the 
condition  in  which  this  stream  would  be  if  civilization  did  not 
exist  in  Massachusetts  ; if  the  primeval  forests  still  bordered 
on  the  stream,  and  population  had  not  existed  for  cen- 
turies in  the  vicinity.  Well,  I beg  to  submit,  gentlemen, 
that  that  is  another  gross  fallacy  and  absurdity.  The 
question  you  are  to  determine  is,  What  is  the  value  of  a mill- 
power  to  the  Essex  Co.  — of  all  their  mill-power,  what  is 
the  value  to  them  of  2,400  cubic  feet  a second  for  twenty- 
four  hours,  as  they  receive  it,  and  as  they  have  been 
accustomed  to  receive  it  for  the  last  thirty  years?  You  are 
to  take  things  as  they  exist,  and  as,  in  all  human  probability, 
according  to  your  judgment,  they  will  exist  in  the  future; 
and  if,  because  Massachusetts  is  a populous  State,  and,  to 
some  extent,  a manufacturing  State  ; and  if,  because  Sudbury 
and  Merrimack  rivers  have  been  used  for  manufacturing  pur- 
poses, a larger  or  smaller  quantity  of  water  is  enjoyed  at  the 


Argument  for  the  Petitioners. 


177 


petitioners’  dam  in  Lawrence  ; and  if  you  believe  that  in  all 
human  probability  that  state  of  facts  not  only  exists,  but  will 
continue  to  exist,  then  the  value  of  that  water-power  at 
Lawrence  is  to  be  determined  with  reference  to  those  con- 
siderations. 

Why,  Mr.  Chairman,  you  are  called  upon,  for  instance,  to 
assess  damages  for  taking  a building  upon  State  street,  in  the 
city  of  Boston,  and  the  owner  comes  and  testifies  to  his 
opinion  of  its  value.  He  is  then  cross-examined  by  the 
learned  counsel.  Why  do  you  appraise  it  at  that  value? 
Is  not  your  opinion  influenced  by  the  consideration  that  at 
this  time,  and  up  to  this  time,  for  the  last  twenty  or  thirty 
years,  State  street  has  been  a populous  and  important  com- 
mercial centre  ; that  banks  are  there  ; that  insurance  offices 
are  there  ; that  large  commission  houses  are  there  ? Do  you 
not  base  your  estimate  somewhat  upon  these  facts,  and  upon 
the  probability  that  that  state  of  facts  will  continue  ? And 
Mr.  Storrow,  if  thus  examined,  would  admit  (as  he  does  in 
this  case,  which  is  a parallel  case),  "I  do,  most  certainly.” 
And  is  my  learned  friend,  on  the  other  side  to  say  that  in  so 
doing,  you  are  putting  a value  upon  this  property  derived 
from  artificial  considerations?  that  you  must  take  it  in  a 
state  of  nature  ; that  you  have  no  right  to  say  that  the  banks 
shall  remain  there,  the  insurance  companies  shall  remain 
there,  or  that  commerce  shall  use  it  as  a land  channel,  daily 
and  hourly,  for  the  next  fifty  years  as  it  has  for  the  last ; that 
you  must  take  it  in  a state  of  nature?  I answer,  in  that  case, 
precisely  what  I answer  in  this  case.  You  take  the  case  as 
it  is  ; and  if,  as  sensible  men,  exercising  your  judgment, 
your  experience,  and  your  recollections  of  the  past,  you  be- 
lieve that  that  state  of  things  will  substantially  exist  for  the 
future,  then  those  elements  enter  into  the  value  of  that  prop- 
erty just  as  much  as  the  brick,  and  the  mortar,  and  the 
lumber  of  which  it  is  composed  ; and,  in  fact,  they  are  the 
things  that  give  it  substantially  its  value. 

Therefore,  gentlemen,  if  you  believe  that  in  the  future,  as 
in  the  past,  the  water  of  the  Merrimack  will  be  used,  pru- 
dently and  carefully,  by  the  locks  and  canals,  and  the  other 
proprietors  upon  that  stream  whose  interest  it  is  thus  to  use 
it,  and  that  no  material  change  for  the  worse  will  occur  in 
that  respect,  then  most  certainly  you  do  not  go  amiss  when 
you  give  us  at  least  what  we  enjoy  to-day  at  Lawrence ; be- 
cause the  evidence,  as  pressed  by  the  learned  counsel  from 
the  witnesses,  was  that  the  reasonable  expectation  is,  not 
that  the  value  of  that  privilege  will  diminish,  but  that  it  will 
increase  from  year  to  year  as  these  concurrent  streams  are 


178 


Essex  Company. 


more  and  more  economized,  and  the  water  used  to  better  ad- 
vantage. • 

I therefore  submit,  gentlemen, — for  I only  propose, 
within  the  limited  time,  to  indicate  rather  than  discuss  very 
largely  the  view  which  the  petitioners  take  in  this  case,  and 
I think  that  is  all  that  will  be  necessary  before  this  tribunal, 

— I therefore  submit,  that  the  City  of  Boston  have  diverted 
from  the  petitioners  and  appropriated  what  furnishes  them 

of  their  power  at  Lawrence ; and  the  value  of  what  they 
have  thus  taken  is  to  be  estimated  in  view  of  the  circum- 
stances as  they  exist  to-day,  and  as  they  will  probably  con- 
tinue to  exist,  according  to  your  best  judgment,  in  the  fu- 
ture ; and  by  the  uncontradicted  testimony  of  Mr.  Mills 
(p.  90),  Mr.  Storrow  and  Mr.  Frost,  every  gallon  diverted 
at  Framingham  is  just  so  much  less  to  be  enjoyed  at  Law- 
rence. 

Now,  what  is  the  pecuniary  value  of  the  property  whidh 
has  thus  been  appropriated  by  the  city?  In  the  first  place, 
I beg  to  submit,  that  when  we  are  deprived  of  the  opportun- 
ity of  selling,  I will  say,  as  an  illustration,  three  perma- 
nent mill-powers,  as  defined  and  explained  by  Mr.  Stor- 
row in  this  case,  that  is  not  the  limit  of  the  damage  which 
we  suffer,  or  of  the  property  which  is  taken  from  us ; for  the 
testimony  in  this  case  also  proves  conclusively  — and  it  is 
the  result,  not  of  conjecture,  not  of  mere  estimate,  but  it  is 
the  conclusion  from  the  experience  of  the  past  thirty  years 

— that  the  sale  of  a permanent  mill-power  by  the  Essex 
Company  means  not  only  that,  produces  not  only  that,  but 
also  implies  and  amounts  to  the  sale  of  what  is  equivalent 
to  one-third  of  a mill-power  more.  I mean  one-third  of  a 
mill-power  for  every  single  mill-power.  So  that  if  three 
permanent  mill-powers  are  taken  from  us,  or  the  capacity  to 
sell  three  permanent  mill-powers  is  taken  from  us,  we  also 
lose,  in  fact,  what  is  equivalent  to  an  additional  mill-power. 
The  evidence  upon  that  point  is  briefly  this  : that  those  to 
whom  the  permanent  mill-powers  have  been  sold,  upon  an 
average,  at  the  prices  which  they  have  been  charged,  and 
which  the  lessees  have  been  very  glad  to  pay  for  surplus 
power,  have  used  and  paid  for  such  surplus  power  as  one 
to  three  ; that  the  amount  received  from  the  sale  of  surplus 
power  has  been  from  thirty  to  thirty-three  per  cent,  of  the 
amount  received  from  the  sale  of  the  permanent  powers. 
You  have  the  evidence,  gentlemen,  that  that  has  been  the 
case  during  the  whole  experience  of  the  Essex  Company. 
You  have  the  fact  that  perhaps  every  owner  of  a mill-power 
there  has  machinery  which  he  can  employ  in  large  excess  of 
the  permanent  mill-powers  of  which  he  has  a lease  from  the 


Argument  for  the  Petitioners. 


179 


Essex  Company,  and  that  the  mill-owners  are  glad  to  use, 
from  time  to  time,  as  their  business  requires,  this  surplus 
power,  which,  at  any  rate,  will  be  cheaper  to  them  than 
steam  power,  even  with  the  engines  already  provided  and  in 
their  mills.  So  that  if  by  the  deprivation  of  the  Sudbury 
water  the  Essex  Company  have  been  deprived,  or  willbe 
deprived  of  three  permanent  mill-powers,  as  they  certainly 
will  upon  the  admitted  calculations,  our  loss  does  not  stop 
there ; but,  judging  of  the  future  by  the  past,  we  could 
sell  not  only  these  three  permanent  mill-powers,  but  we 
could  sell  to  the  lessees  of  these  three  permanent  mill-pow- 
ers sufficient  surplus  power  to  amount  to  at  least  one  other 
power ; and  that  is  just  as  valid  an  element  in  our  damage 
as  every  one  of  the  permanent  powers,  and  it  is  just  as  much 
a loss  to  us  as  a loss  of  either  of  the  permanent  powers. 

Now,  as  illustrating  the  reliance  which  the  mill-owners 
place  upon  this  surplus  power,  and  the  good  reason  they 
have  for  relying  upon  it,  you  will  not  fail  to  notice  the 
terms  upon  which  all  these  leases  are  granted.  It  is  a right 
to  draw  in  every  second  so  many  cubic  feet  of  water.  If, 
in  that  second,  that  amount  of  water  is  not  drawn,  then  the 
right  of  the  lessee  does  not  exist  for  that  quantity  of  water ; 
he  cannot  use  it  in  any  other  second,  and  all  that  is  not 
thus  drawn  is  the  property  of  the  Essex  Company,  to  be  dis- 
posed of  the  same  as  any  of  their  unsold  water-power ; and 
the  amount  of  rent  which  the  lessee  agrees  to  pay  in  his 
lease  is  predicated,  among  other  things,  and  quite  as  much, 
upon  that  as  upon  other  things,  upon  that  very  consider- 
ation. The  amount  of  rent  is  fixed  in  view  of  the  fact,  as 
well  as  of  other  facts,  that  if  he  does  not  use  the  power  each 
second,  it  does  not  belong  to  him,  but  reverts  to  the  Essex 
Company.  Every  bargain  is  made  upon  that  basis,  and  the 
price  which  the  lessee  is  to  pay  is  regulated  by  that  consider- 
ation as  well  as  by  the  others  which  enter  into  the  terms  of 
that  contract ; and,  therefore,  you  see  that  in  dry  times,  in 
seasons  when  the  river  is  supplying  only  this  minimum  of 
2,400  cubic  feet  per  second,  a valuable  property  exists  in 
the  Essex  Company  besides  the  145,  or  165, or  185  permanent 
mill-powers,  according  to  the  way  in  which  it  is  used.  They 
have  a valuable  property  in  that  portion  of  the  permanent 
mill-powers  which  is  not  used  by  the  respective  lessees. 

Now,  it  has  been  put  into  this  case,  by  the  learned  counsel 
for  the  respondents,  that  by  law  a lessee  can  run  his  mill 
but  ten  hours  in  the  day.  Well,  making  an  allowance  for 
getting  the  mill  into  operation,  etc.,  suppose  that  this 
amount  of  water  is  drawn  but  twelve  hours  in  the  day  — which 
would  be  a liberal  allowance,  — there  are  four  hours  of  the 


180 


Essex  Company. 


evening,  practically,  every  day  during  the  dry  season,  when 
the  Essex  Company  can  store  up  for  use  the  next  day  this 
amount  of  surplus  power  to  be  sold ; and  thus  you  see  that 
any  mill-owner  on  that  stream,  knowing  that  fact,  knowing 
the  condition  of  the  Essex  Company,  knowing  that  he  can 
rely  upon  the  Essex  Company  to  answer  permanently  his 
call  for  surplus  power  even  after  they  have  sold  all  their 
permanent  sixteen-hour  power,  will  provide,  in  erecting  his 
mill  and  furnishing  it  with  machinery,  the  means  of  giving 
the  Essex  Company  a market  for  that  surplus  power,  and 
also  for  power  which  is  not  permanent,  but  depends  on  the 
stages  of  the  river ; and,  as  the  evidence  shows,  they  have 
done  it  to  an  extent  which  in  figures  amounts  to  thirty,  or 
thirty-three  per  cent.,  in  dollars  and  cents,  of  all  that  has 
been  received  from  the  sale  of  permanent  power.  And  thus, 
gentlemen,  when  we  come  down  to  figures,  we  find  that  if 
these  mill-powers  are  used  fourteen  hours  a day  instead  of 
twelve,  the  admitted  quantity  of  water  at  Lawrence  furnishes 
us  with  165  mill-powers,  and  ^ of  that  is  substantially  three 
mill-powers,  which  we  claim  — following  to  a mathematical 
result  the  data  which  have  been  given  to  you  by  these 
gentlemen  — is  the  amount  of  mill-power  diverted  from  us  by 
the  action  of  the  city  in  taking  the  water  of  the  upper 
Sudbury ; and  to  that  should  be  added  one  mill-power  in 
value  on  account  of  the  loss  of  the  surplus  power  which  we 
should  inevitably,  in  all  human  probability,  sell  to  the 
owners  of  those  three  permanent  mill-powers,  if  the  ex- 
perience of  the  future  is  to  correspond  in  any  substantial 
degree  to  the  experience  of  the  past  in  that  respect. 

Although  no  testimony  whatever  has  been  introduced  by 
respondents  to  impeach  in  any  degree  the  accuracy  of  the 
estimates  submitted  by  the  petitioners  as  to  the  amount  of 
water  furnished  by  the  Sudbury  or  Concord  river,  some  at- 
tempt was  made  in  that  direction  in  the  argument  of  counsel, 
by  the  use  which  he  made  of  a passage  found  in  the  report 
of  the  Sudbury  River  Commissioners  of  1862.  The  pas- 
sage is  as  follows,  page  21  : "The  four  days  commented 

upon  above  followed  after  a long-continued  period  of  dry 
weather,  some  of  which  had  been  exceedingly  hot,  and  the 
quantity  of  water  then  running  in  the  river  [the  Concord] 
(there  was  being  discharged  at  the  dam  about  100  cubic  feet 
per  second)  was  probably  not  greater  than  the  ordinary 
summer  flow  of  the  river.” 

If  Mr.  Storrow,  who  was  one  of  the  Sudbury  commissioners, 
concurred  in  that  statement  at  the  time  it  was  made,  and  if 
it  is  in  any  degree  inconsistent  with  any  testimony  which  he 
has  given  in  the  case  (and  it  certainly  is  not),  such  incon- 


Argument  for  the  Petitioners. 


181 


sistency  might  be  relied  upon  by  the  respondents  to  disparage 
the  value  of  Mr.  Storrow’s  testimony  in  this  case,  but  for  no 
other  purpose.  The  attempt  which  was  made  in  the  argu- 
ment to  use  this  passage  as  substantive  proof  as  to  the 
amount  of  water  in  the  Concord  river  at  any  time  was  clearly 
contrary  to  the  well-settled  rules  of  evidence.  This  attempt 
had  much  more  of  ingenuity  than  candor  in  it,  for,  if  the 
respondents  believe  that  100  cubic  feet  per  second  is  the 
minimum  constant  of  the  Concord  river  at  the  Billerica  dam  ; 
if  they  believe,  or  ask  you  to  believe,  that  the  capacity  of  any 
of  these  contributing  rivers  is  less  than  our  estimates,  why 
have  they  not  introduced  some  testimony  upon  that  subject  ? 

Could  they  not  measure,  have  they  not  measured , not  only 
the  Concord,  but  the  upper  Sudbury?  and  if  those  measure- 
ments are  now  withheld,  can  it  be  for  any  other  reason  than 
that  they  would  fully  confirm  the  conclusions  which  the  pe- 
titioners ask  you  to  adopt  ? 

What,  then,  in  dollars  and  cents,  having  ascertained  the 
amount  of  mill-power  which  is  taken  from  us,  is  the  com- 
pensation which  we  are  entitled  to?  In  other  words,  what 
sum  will  place  the  Essex  Company  in  a position  equivalent 
to  that  which  they  would  occupy  if  these  three  or  four  mill- 
powers  had  not  been,  in  fact,  destroyed? 

Well,  gentlemen,  what  is  the  value  of  a mill-power  to  the 
Essex  Company  at  Lawrence?  Ordinarily,  where  sales  of 
any  article  have  taken  place  for  a series  of  years,  the  amount 
thus  realized  furnishes  a fair  test  or  criterion  of  the  value  of 
the  article,  and  the  damages  that  will  be  allowed  for  it.  But 
all  the  conditions  and  circumstances  under  which  that  sale  is 
made,  and  that  price  is  fixed,  certainly  are  very  material  to 
be  taken  into  account  in  determining  the  question  of  value. 
It  is  certainly  so  in  the  present  case,  where  these  mill-powers 
are  not  taken  to  be  used  upon  the  premises,  or  upon  the 
lands  of  the  Essex  Company,  but  where  the  power  is,  in  one 
sense,  I may  say,  annihilated  ; where  the  power  is  taken  to  be 
used  in  the  City  of  Boston  instead  of  upon  the  banks  of  the 
canals  of  the  Essex  Company  at  Lawrence. 

Now,  the  average  price  for  several  years  past  of  a mill- 
power  sold  by  the  Essex  Company  has,  under  certain  con- 
ditions and  circumstances  expressed  in  the  grant,  been 
$20,000,  it  is  true ; but  it  is  also  true,  that  those  sales  have 
been  made  to  persons  who  were  also  to  purchase  lands  for  a 
mill-site,  factory,  dwellings,  and  all  the  other  buildings 
which  are  commonly  incident  to  such  an  institution  ; and,  as 
you  have  heard  from  the  testimony  of  Mr.  Storrow,  the  sale 
of  a mill-power  financially  means,  taking  into  consideration 
these  attendant  circumstances,  $35,000  to  $40,000,  at  least, 


182 


Essex  Company. 


to  the  Essex  Company  ; and  in  the  illustration  which  he  gave 
of  a sale  to  Mr.  Greenbank,  I believe  the  actual  amount  was 
$36,000  ; hut  the  average  is  from  $35,000  to  $40,000. 

Now,  gentlemen,  it  would  be  great  injustice  to  the  Essex 
Company,  in  determining  what  amount  of  damages  they 
have  sustained  at  the  hands  of  the  City  of  Boston,  to  measure 
their  mill-power  thus  taken  away  by  the  sum  of  $20,000, 
because  they  never  sold,  never  would  sell,  and  could  not  sell, 
profitably,  or  judiciously,  a mill-power  in  that  way  for  the 
sum  of  $20,000. 

What  the  Essex  Company  have  sold  for  $20,000  has  not 
been  an  absolute  right  to  a mill-power,  but  a right  to  be  ex- 
ercised under  certain  conditions  and  limitations.  These  con- 
ditions enter  into  and  make  a part  of  the  consideration  for 
which  the  mill-power  is  sold,  quite  as  much  as  the  cash  pay- 
ment, and  their  pecuniary  value  to  the  Essex  Company  has 
been,  on  an  average,  not  less  than  from  $15,000  to  $20,000 
for  each  mill-power  sold. 

Now,  if  a mill-power  is  to  be  sold,  or,  rather,  is  to  be  seized 
from  the  Essex  Company  and  enjoyed  by  the  City  of  Boston, 
freed  from  these  conditions,  its  full  value,  including  the 
value  of  these  conditions,  is  the  criterion  of  value  fixed  by  the 
sale,  and  is  the  measure  of  the  amount  of  damages  which 
should  be  paid  to  the  Essex  Company.  If  less  is  paid,  full 
compensation  will  not  be  made,  and  injustice  will  be  done. 

There  is  also  another  class  of  considerations  bearing  upon 
this  question. 

When  a manufacturer  owns  a mill-site  upon  the  banks  of 
a stream,  and  you  are  called  upon  to  estimate  the  damage 
which  he  sustains  by  the  destruction  of  his  water-power,  you 
must  take  into  consideration,  of  course  you  would  take  into 
consideration,  his  investment,  the  situation  of  his  mill,  and 
other  incidents ; and  it  is  the  damage  to  the  entire  property 
which  is  the  loss  he  suffers,  and  not  merely  to  any  abstract 
valuation  of  the  water-power  as  an  entirety  by  itself,  and  as 
distinct  from  the  other  incidents  which  belong  to  it.  So  in 
this  case,  you  find  the  Essex  Company  the  owners  of  this 
water-power  and  the  land  upon  which  the  factory  is  to  be 
erected,  and  the  work  carried  on.  For  purposes  of  conven- 
ience to  themselves  they  have  distinguished  between  one 
and  the  other  in  making  a sale  to  any  particular  lessee  ; but 
a mill-power,  in  effect,  means  the  sum  of  from  $35,000  to 
$40,000  ; and  by  no  other  rule  can  you  arrive  at  substantial 
justice  in  this  case,  because  you  cannot  exclude  from  your 
consideration  the  conditions  under  which  these  sales  for 
$20,000  have  been  made,  any  more  than  you  would  exclude 
from  your  consideration  the  fact  that  a mill-owner  had  built 


Argument  for  the  Petitioners. 


183 


upon  his  mill-site  a factory,  and  placed  in  it  machinery,  and 
had  otherwise  equipped  himself  for  the  purpose  of  carrying 
on  his  business,  when  you  came  to  estimate  his  damages  by 
the  withdrawal  of  his  water-power. 

I am  not  asking,  you  see,  gentlemen,  in  this  connection,  for 
any  damages  which,  according  to  the  definition  of  my 
learned  friend  on  the  other  side,  can  be  considered  as  re- 
mote, or  indefinite,  or  contingent.  It  is  damage  which  we 
suffer  by  the  destruction  of  our  mill-power,  to  the  power 
itself,  and  to  the  property  which  is  legally  incident  to  that 
power ; the  mill-site  itself,  the  property  which  goes  with 
it,  enters  into  it,  and  makes  a part  of  it  just  as  much  as  the 
water  of  the  stream  does. 

But  there  is  another  view  to  be  taken  of  this  subject,  and 
it  will  enable  you,  I think,  to  arrive  at  what  is  just  and  proper 
under  these  circumstances.  The  Essex  Company  own  a 
certain  amount  of  mill-power  upon  that  stream.  They  have 
the  right  to  sell  it,  or  they  have  the  right  to  use  it.  You 
can  only  indemnify  them  by  placing  them  in  a position  where 
they  can  buy  the  amount  of  power  of  which  they  are  de- 
prived. I know  of  no  other  rule  of  justice  or  of  law  than 
this  : If  you  deprive  a man  of  his  property,  which  has  a 
fixed  value,  you  must  give  him  a sum  which  will  enable  him 
to  supply  its  place  with  its  equivalent ; and,  certainly,  in  ref- 
erence to  a mill-power  there  can  be  no  other  rule  of  justice 
than  this,  and  especially  where  a large  investment  has  been 
made,  as  in  this  case,  or  in  any  case  where  a mill  proprietor 
has  established  his  works.  If  you  take  away  his  water-power 
you  must  give  him  money  enough  to  perform  the  work  of 
the  water-power  which  you  have  taken  away.  If  you  have 
taken  away  from  him  sixty  horse-power,  or  one  hundred 
horse-power,  and  that  power  has  been  a permanent  power  — 
not  a fluctuating  one,  to  be  used  one  day  in  a week  or  one 
day  in  a month  — but  if  it  has  been  a permanent  sixty  or  one 
hundred  horse-power,  you  fail  to  indemnify  him,  you  fail  to 
do  the  duty  which  the  statute  has  committed  to  you,  unless 
you  give  him  such  a sum  as  will  enable  him  to  supply,  from 
other  sources,  the  power  of  which  you  have  deprived  him. 
In  other  words,  unless  you  give  him  the  means  to  create  by 
steam  (which  is  the  cheapest  and  best  known  equivalent  at 
this  day  for  water-power)  the  power  of  which  he  has  been 
deprived.  Well,  gentlemen,  what  is  the  evidence  upon  that 
point?  You  have  this  fact  as  fixing  what  that  amount  is  — 
that  the  mill-owners  upon  that  stream  (and  probably  they 
are  as  good  judges  of  what  is  expedient  and  right  as  any 
men  — the  largest  proprietors  in  this  direction  of  any  we 
know)  are  glad  to  pay  twelve  dollars  per  mill-power  per  day 


184 


Essex  Company. 


rather  than  start  the  engines  which  they  have  upon  their 
premises  to  create  this  steam-power.  I think,  therefore, 
gentlemen,  you  may  safely  assume  that  $60,000  is  a moder- 
ate estimate  of  the  value  to  us,  or  to  anybody  upon  that 
stream,  of  a mill-power ; for,  according  to  the  lowest  esti- 
mate, it  will  cost  that  sum  to  substitute  by  steam  the  power 
of  which  we  have  been  deprived.  Four  dollars  a day  is 
$20,000  for  the  water-power,  and  twelve  dollars  per  day  is 
$60,000 ; and  when  the  City  of  Boston  took,  as  they  have 
taken,  from  the  petitioners  these  four  mill-powers,  the  only 
mode  in  which  full  indemnity  can  be  secured  to  the  Essex 
Company  for  that  deprivation  is  by  giving  them  a sum  which 
will  reproduce  those  mill-powers  at  that  spot,  which  is  the 
sum  of  $60,000  a mill-power. 

The  just  amount  of  our  compensation  is  not  to  be  affected 
by  the  suggestion  that  these  mill-powers  might  not  have 
been  used  by  the  Essex  Company  for  an  indefinite  period. 

There  is  but  one  rule  of  law  or  of  justice  on  this  subject. 
When  property  is  thus  taken,  its  full  market  value,  at  the 
time , must  be  paid,  and  the  moment  that  you  undertake  to  dis- 
count anything  because  the  sale  takes  place  now,  the  price 
from  which  the  discount  is  to  be  made  is  not  the  price  at 
which  sales  take  place  now,  but  the  price  of  the  distant 
future  — and  that  is  too  indefinite  for  you  to  fix.  The  inference 
that  only  one  power  is  sold  each  year  is  based  on  starting, 
Oct.  2,  1869;  thirteen  powers  were  sold  Oct.  1,  and  we 
might  as  well  say  that  thirteen  a day  is  the  rate. 

These  mill -powers  are,  in  legal  effect,  now  sold  to  the  City 
of  Boston,  and  they  should  not  stand,  certainly,  in  any  bet- 
ter position  than  an  ordinary  purchaser,  because  the  sale  is 
compulsory,  and  at  their  election,  and  not  ours  ! 

There  is  another  item  of  damage  which  comes  within  the 
objection  of  the  learned  counsel  on  the  other  side.  I do  not 
mean  to  say  that  the  objection  is  valid ; but  I mean  that  his 
objection  applies  to  it ; and  that  is,  the  damage  which  is  sus- 
tained by  the  Essex  Company  to  their  other  lands  by  virtue 
of  their  water-power  being  diminished.  I do  not  propose  to 
add  anything  in  reference  to  that  particular  claim  to  what 
appears  before  you  by  the  tables  and  the  considerations 
which  have  been  submitted  to  you  by  Mr.  Storrow  in  his 
testimony.  Whatever  you  deem  just  and  reasonable  on 
account  of  that  you  will  allow  as  a distinct  sum. 

There  is  only  one  remark  which  I wish  to  make  in  answer 
to  an  argument  which  was  very  much  pressed  by  my  learned 
friend  on  the  other  side.  I have  substantially  answered  it,  I 
think.  The  counsel  for  the  respondents  has  much  to  say  in 
reference  to  the  proposition  that  we  were  entitled  to  no  dam- 


Argument  for  the  Petitioners. 


185 


ages,  unless  we  had  suffered  an  " appreciable  ” loss,  and  that 
we  had  suffered  no  " appreciable  ” loss.  That  argument  was 
based  upon  the  assumption  that  Mr.  Storrow  and  Mr.  Mills 
had  testified  that  they  had  suffered  no  appreciable  loss. 
Well,  that  is  an  entire  misrepresentation,  or  mistake  of  the 
testimony,  or  its  effect.  The  testimony  of  those  gentlemen 
was,  that  in  that  large  stream,  and  with  the  fluctuations  to 
which  it  is  naturally  subject,  a variation  of  three  per  cent,  in 
the  amount  flowing  on  any  particular  day,  more  or  less,  as 
compared  with  any  previous  day,  could  not  be  mathematically 
ascertained  and  determined.  But,  to  show  the  fallacy  of 
this  argument,  — is  it  to  be  pretended  that  when  the  City  of 
Boston  took  the  whole  of  Sudbury  river  above  their  dam, 
amounting  to  millions  of  gallons  a day,  which,  confessedly, 
under  any  estimate  (I  mean  by  the  concession  of  the  other 
side),  amounts  to  from  one  to  three  mill-powers,  and  a mill- 
power,  according  to  any  estimate,  is  worth  $20,000,  that 
there  is  no  appreciable  damage  in  this  case  ? Have  the  City 
of  Boston  appropriated  and  expended  millions  of  dollars  in 
the  diversion  of  Sudbury  river  for  the  purpose  of  getting 
the  benefit  of  a stream  which  is  of  no  appreciable  value, 
or  measurable  quantity?  Why,  gentlemen,  let  us  pursue 
this  for  a moment.  The  City  of  Boston  have  taken  of  our 
water,  and  with  it  -^y  of  our  water-power.  That  cannot  be 
measured  to-day  on  the  dam  of  the  Essex  Company ; but 
suppose,  as  we  may  well  suppose,  that  fifty-six  other  parties, 
under  fifty-six  other  acts  of  the  Legislature  of  the  State  of 
Massachusetts,  or  upon  their  own  authority,  took  each  one 
of  our  water  area,  and  our  water  supply,  and  our  water- 
power. They  are  concurrent  acts,  or  substantially  concur- 
rent acts,  and  the  cases  come  before  you  for  the  assessment 
of  damages.  Well,  each  case  is  tried  separately.  My 
learned  friend,  General  Butler,  begins,  as  he  did  in  this  case, 
" Can  you  measure  your  three  per  cent.,  or  two  per  cent.  ?” 
" No.” — Well,  case  number  two  is  called. — " Can  you  meas- 
ure your  two  or  three  per  cent.  ? ” as  the  case  may  be. 
"No;”  and  the  grand  result  of  that  mode  of  argument  is, 
that  we  lose  our  and  still  have  suffered  no  " appreciable  ” 
damage,  and  should  go  without  day  ! 

Gentlemen,  I have  only  to  conclude,  as  my  learned  friend 
on  the  other  side  did,  by  expressing  my  obligations  to  the 
Commission  for  the  patience  and  kindness  with  which  they 
have  listened  to  both  sides  of  this  case. 

Commissioner  Russell.  Before  you  close,  there  is  one 
argument  which  I think  you  have  not  adverted  to,  upon 
which  I would  like  to  hear  what  is  to  be  said,  and  which,  I 


186 


Essex  Company. 


think,  should  be  met.  The  question  is,  whether  there  is  any 
difference  between  a navigable  stream,  and  one  not  naviga- 
ble, with  respect  to  the  rights  of  riparian  proprietors,  and 
whether  there  is  anything  which  makes  the  Merrimack  a nav- 
igable stream,  which  applies  to  that  question?  A case  has 
been  cited  in  Pennsylvania,  which  I have  not  had  an  oppor- 
tunity to  examine. 

Mr.  Merwin.  I meant  to  have  adverted  to  that  in  the 
early  part  of  my  argument,  but  forgot  it.  I intended  simply 
to  say  upon  that  subject  that  there  is  no  evidence  in  the 
case,  and  no  fact  stated  in  any  other  case,  which  authorizes 
the  assumption  that  the  Merrimack  is  a navigable  stream,  in 
the  ordinary  and  legal  sense  of  that  phrase  ; but,  on  the  con- 
trary, that  the  charter  of  the  Essex  Company  indicates,  as 
far  as  anything  is  indicated  on  that  subject,  that  it  is  not 
navigable,  except  for  the  purposes  of  floating  rafts  and  logs, 
and  for  similar  purposes.  There  is  an  act  of  the  Legislature, 
to  which  I should  like  to  refer  the  Commission,  by  which 
some  persons,  not  unknown  in  this  case,  are  incorporated  for 
the  purpose  of  rendering  the  Merrimack  navigable,  and,  in 
case  they  do,  authorizing  them  to  take  a certain  amount  of 
toll. 

Mr.  Storrow.  It  is  the  charter  of  the  Pentucket  Compa- 
ny. It  provides  that  if  they  will  make  it  navigable  for  boats 
of  five  tons,  then  they  are  to  have  the  right  to  take  toll  for- 
ever, a right  which  the  State  could  not  grant  upon  a navigable 
stream.  (Chap.  115,  Acts  of  1867.) 

Mr.  Merwin.  In  the  next  place,  the  mill  acts  of  this 
Commonwealth,  as  uniformly  expounded  and  applied,  apply 
to  all  streams,  whether  navigable  or  not,  above  the  ebb  and 
flow  of  the  tide,  in  the  next  place,  the  right  of  a riparian 
proprietor  on  a navigable  stream,  as  far  as  this  question  is 
concerned,  cannot  be  in  any  respect  different  from  one  that 
is  not  navigable,  in  the  nature  of  things ; the  right  to  the 
flow  of  the  stream  for  power  must  exist,  so  far  as  its  fall  fur- 
nishes power,  which  the  law  has  given  us  the  right  to  use. 
And,  in  the  last  place,  the  distinction  thus  raised  by  General 
Butler  has  no  application  to  this  case,  because  the  city  of 
Boston  is  no  riparian  proprietor,  either  on  the  Merrimack  or 
on  the  Sudbury,  and  has  no  rights  as  a riparian  proprietor. 

Commissioner  Russell.  It  was  with  regard  to  the  rights 
of  the  Essex  Company,  rather  than  the  rights  of  Boston,  that 
the  question  arose. 

Mr.  Merwin.  In  reference  to  that,  I propose  to  refer  to 
our  charter,  which  is  conclusive,  as  it  seems  to  me,  upon  that 
part  of  the  argument  of  General  Butler.  That  is  what  I 
forgot,  and  1 am  glad  to  have  had  my  attention  called  to  it. 


Argument  for  the  Petitioners. 


187 


Our  charter  gives  the  company  the  right  to  create  a water- 
power by  the  erection  of  a dam,  and  not  only  that,  but  it 
defines  the  limits  to  which  that  dam  shall  flow  the  water  back  ; 
namely,  to  the  foot  of  Hunt’s  Falls.  The  Essex  Company 
are  to  enjoy  the  water-power  thus  created,  and  which  is  due 
to  a dam  which  will  set  back  the  water  of  the  Merrimack  to 
the  foot  of  Hunt’s  Falls.  That  right  is  a right  which  exists 
under  our  charter,  and  that  is  the  most  authoritative  title 
that  we  can  hold. 

Commissioner  Russell.  I simply  called  your  attention 
to  the  argument,  because  it  seemed  to  be  very  much  pressed 
on  the  other  side. 

Mr.  Merwin.  I had  it  on  my  notes,  and  I am  much 
obliged  to  the  chairman  for  calling  my  attention  to  it. 

Mr.  Storrow.  Will  your  Honors  take  the  case  of  the 
Commonwealth  vs.  The  Essex  Company,  13  Gray,  239,  for  a 
judicial  construction  of  our  charter  with  reference  to  the  right 
of  the  Legislature  itself  to  interfere  with  the  enjoyment  ot 
our  dam,  and  the  water-power  created  by  it,  for  manufactur- 
ing purposes  ? I will  also  ask  your  attention  to  the  cases  of 
Heard  vs.  Proprietors  of  the  Middlesex  Canal,  5 Met.  81 ; 
and  Ipswich  Mills  vs.  County  Com’rs  of  Essex,  108  Mass. 
363. 

I will  also  ask  your  attention  to  the  case  of  Lowell  vs. 
County  Commissioners  of  Middlesex,  6 Allen,  131.  There 
the  question  was  whether  the  surplus  water-power  of  the 
locks  and  canals  was  property  in  such  sense  that  it  could  be 
considered  for  the  purpose  of  taxation,  after  they  had  sold, 
as  appears  by  the  agreed  state  of  facts,  all  the  power  that 
was  permanent,  and  the  Court  held  that  it  was.  " The  whole 
of  the  power  which  these  works  are  capable  of  supplying 
throughout  the  whole  year  is  used  by  the  companies  who  own 
the  stock.  But  for  nine  months  in  the  year  there  is  a con- 
siderable surplus  of  water-power,  capable  of  a profitable  use, 
but  not  yet  applied  to  manufacturing  purposes.”  The  Court 
held  that  this  surplus  water-power  was  valuable  for  purposes 
of  taxation,  not  perhaps  by  itself,  for  water-power  and  water- 
rights  are  not  taxable,  but  as  giving  value  to  the  land. 

[. Adjourned  to  Wednesday,  September  27,  at  9}  o'clock .] 


• 

Petition. 


189 


Wednesday,  Sept.  27,  1876. 

THE  SAXONVILLE  MILLS,  PETITIONER  FOR  ASSESS- 
MENT OF  DAMAGES, 

vs. 

THE  CITY  OF  BOSTON. 

Commonwealth  of  Massachusetts.  Middlesex,  ss. 

To  the  Hon.  the  Justices  of  the  Superior  Court , within  and  for  said  County 
of  Middlesex : — 

The  petition  of  the  Saxonville  Mills,  a corporation  under  the 
laws  of  the  Commonwealth  of  Massachusetts,  established  in  the 
village  of  Saxonville,  in  the  town  of  Framingham,  in  said  County 
of  Middlesex  respectfully  represents,  — 

That  on,  and  prior  to  the  8th  day  of  April,  in  the  year  1872, 
your  petitioner  was,  and  ever  since  has  been,  and  now  is,  the 
owner  in  fee  simple,  and  seized  and  possessed  of  certain  land  and 
real  estate  situated  in  said  town  of  Framingham,  through  or  along 
which  the  Sudbury  river  so  called,  passes,  and  in  which  is  em- 
braced the  whole  of  an  expansion  of  said  river  known  as  Factory 
pond  ; also  certain  land  and  real  estate  situate  in  said  town  of 
Framingham,  on  both  sides  of  Farm-pond  brook,  so  called,  which 
brook  is  the  outlet  brook  whereby  the  body  of  water  known  as 
Farm  pond  was,  before  the  doings  of  the  City  of  Boston  herein- 
after complained  of,  accustomed  to  flow  into  said  Sudbury  river ; 
all  which  land  and  real  estate  are  more  particularly  described  in 
the  schedule  marked  “ A,”  annexed  to  and  made  part  of  this 
petition. 

And  your  petitioner  further  represents  that,  as  incident  to  and 
connected  with  said  land  and  real  estate,  or  otherwise,  your 
petitioner  was  on,  and  prior  to  said  8th  day  of  April,  and  ever 
since  has  been  and  now  is,  the  owner  of  certain  water,  water- 
rights,  mill  privileges  and  rights  of  flowages  of,  in  and  upon  said 
Sudbury  river  and  Farm  pond,  and  of  the  right  to  the  use  and 
enjoyment  of  the  water  and  water-power  of  said  river  and  pond, 
at  and  above  your  petitioner’s  said  land  for  all  lawful  purposes, 
so  far  as  said  water,  water-rights,  mill  privileges  and  water-power 
are  or  can  be  derived  from,  or  said  rights  of  flowage  exercised  by 
a head  of  27t9^j  feet  of  your  petitioner’s  dam  across  said  river  in 
said  village  of  Saxonville,  which  dam  your  petitioner  has  the  right 
to  eiect  and  maintain  at  a height  of  27x908T5-  feet,  or  from  or  by  a 
dam  known  as  the  old  grist-mill  dam  across  said  river  about  one 
mile  above  said  first-mentioned  dam,  and  between  the  parcels  of 
land  in  said  schedule  A,  described  in  items  six  and  seven,  which 
dam  your  petitioner  has  the  right  to  maintain  at  a height  of  two 
feet  above  said  first-mentioned  dam,  or  from  or  by  a dam  across 
said  Farm-pond  brook,  which  your  petitioner  has  the  right  to 
erect  and  maintain  at  any  height  it  may  choose  within  the  boun- 
daries of  its  said  land,  situated  on  both  sides  of  said  brook  as 


190 


Saxonville  Mills. 


aforesaid,  subject  to  certain  conditions,  provisions  and  agreements 
in  the  deeds  of  one  Harrison  Eames,  referred  to  in  said  schedule 
A,  annexed  to  this  petition. 

And  }7our  petitioner  further  represents  that  at,  and  for  all  said 
time  your  petitioner  was,  and  now  is,  the  owner  of  extensive 
factories  and  mills,  and  a large,  amount  of  machinery  connected 
therewith,  and  numerous  dwelling-houses  and  other  buildings  and 
fixtures,  situate  on  said  land  in  Saxonville,  in  said  Framingham  ; 
that  said  factories  and  mills  are  used  for  manufacturing  purposes, 
and  are  and  have  been  accustomed  to  be  worked  by  water-power 
obtained  from  the  said  waters  of  said  Sudbury  river  and  said 
Farm  pond,  by  means  of  dams,  canals,  sluice-ways,  and  the  arti- 
ficial structures  and  channels  constructed  upon  your  petitioner’s 
said  land. 

And  your  petitioner  further  represents  that  the  city  of  Boston, 
in  the  county  of  Suffolk  and  commonwealth  aforesaid,  under- and 
by  virtue  of  an  act  of  the  Legislature  approved  April  8,  1872, 
entitled  “ An  act  to  authorize  the  city  of  Boston  to  obtain  an 
additional  supply  of  pure  water,”  said  act  being  contained  in 
chapter  177  of  the  acts  of  1872,  and  for  the  purposes  in  said  act 
mentioned,  have  within  three  years  last  past,  to  wit,  on  the  19th 
and  on  the  25th  days  of  June,  1872,  and  on  divers  other  days  and 
times  between  said  19th  day  of  June  and  the  date  of  this  petition, 
first  actually  withdrawn  and  directed  the  waters  of  said  Sudbury 
river  and  said  Farm  pond  from  their  theretofore  accustomed  flow 
into  and  along  the  channel  of  said  river,  through,  and  by  the 
land  of  }Tour  petitioner  as  aforesaid,  by  erecting  a new  dam  across 
said  river,  above  the  dam  and  the  land  of  your  petitioner  in  said 
village  of  Saxonville  aforesaid,  to  wit,  at  a point  in  said  river  near 
and  below  the  mouth  of  said  Farm-pond  brook,  and  bj"  construct- 
ing a ditch  from  the  southerly  end  of  said  Farm  pond  to  a brook 
known  as  Beaver-dam  brook,  which  last-named  brook  communi- 
cates with  Lake  Cochituate,  by  means  of  which  new  dam  and 
ditch  the  said  city  has  caused  the  waters  of  said  Farm  pond  and 
Sudbury  river  to  be  withdrawn,  and  diverted  at  or  near  the  point 
where  said  new  dam  has  been  erected,  and  to  flow  through  said 
ditch  and  Beaver-dam  brook  into  said  Lake  Cochituate,  instead  of 
continuing  to  flow,  as  otherwise  said  waters  would  do,  along  the 
channel  of  said  river  below  said  new  dam,  and  along  and  through 
the  said  land  of  3four  petitioner. 

And  your  petitioner  further  represents  that  said  doings  of  said 
cit3T  in  the  erection  of  said  new  dam  and  the  construction  of  said 
ditch  were,  and  are,  in  furtherance  of  a purpose  of  said  city,  under 
the  authorit3r  of  said  act  of  the  Legislature,  to  so  withdraw  and 
divert  the  waters  of  said  Sudbury  river  and  Farm  pond  into  said 
Lake  Cochituate,  “or  by  other  course  to  and  into  the  cit3T  of  Bos- 
ton,” that  there  shall  flow  in  and  along  the  channel  of  said  river 
below  said  new  dam  only  one  and  one-half  million  gallons  of  water 
a da3r,  and  are  the  first  doings  of  said  city,  in  pursuance  of  said 
purpose,  whereb3T  the  waters  of  said  Sudbury  river  and  Farm  pond 
have  been  first  actually  withdrawn  and  diverted  as  aforesaid. 

And  your  petitioner  further  represents  that,  by  the  doings  of 


I 


Petition. 


191 


said  city,  and  by  the  further  prosecution  of  said  city  of  its  pur- 
poses under  said  act  of  the  Legislature  as  aforesaid,  whereby  the 
waters  of  said  Sudbury  river  and  Farm  pond  have  been  actually 
withdrawn  and  diverted,  and  whereby  the  flow  thereof  in,  and 
along  the  channel  of  said  river  below  said  new  dam  will  be 
reduced  to  one  and  one-half  million  gallons  of  water  a day,  as 
aforesaid,  the  said  water,  water-rights,  mill  privileges,  rights  of 
flowage  and  water-power  of  your  petitioner,  have  been,  and  will 
be  taken  and  destroyed,  or  greatly  reduced  in  quantity  and  force ; 
and  the  same,  together  with  the  land  and  real  estate  of  your 
petitioner,  to  which  the  same  are  incident,  or  with  which  they  are 
connected,  as  aforesaid,  have  been,  and  will  be,  greatly  lessened 
in  value. 

Whereby,  and  by  reason  of  all,  which  your  petitioner  has  sus- 
tained and  will  sustain  damages  in  its  said  property  and  estate,  in 
the  sum  of  five  hundred  thousand  dollars. 

And  your  petitioner  further  represents,  that  it  has  not  agreed 
with  said  city  of  Boston  upon,  or  for  the  damages  to  be  paid  to 
your  petitioner  on  the  premises. 

Wherefore  your  petitioner  pra}rs  for  the  assessment  of  its  dama- 
ges, sustained  and  to  be  sustained  as  aforesaid,  and  that  this 
honorable  court,  after  due  notice  to  said  city  of  Boston,  and  other 
proper  proceedings  had,  will  appoint  three  judicious  and  disinter- 
ested freeholders  of  this  commonwealth,  who  shall  proceed  to 
assess  said  damages  according  to  law.  And  that  all  such  further 
and  other  proceedings  may  be  had  in  the  case  as  law  and  justice 
shall  require. 

Dated  this  12th  day  of  April,  in  the  year  1875. 

SAXONVILLE  MILLS. 

Br  M.  H.  Simpson, 

President . 


Schedule  A. 

1.  Three  parcels  of  land  in  Saxonville,  Framingham,  in  the  county 
of  Middlesex,  and  Commonwealth  of  Massachusetts,  bounded  and 
described  as  follows  : Beginning  at  a point  on  the  westerly  side  of 
Elm  street,  so  called,  of  land  now  or  late  of  the  Town  of  Framing- 
ham, thence  running  westerly  155  feet,  and  southerly  99  feet  by  said 
town  land ; thence  westerly  165  feet  by  the  centre  line  of  a con- 
templated street  in  a straight  line  to  land  now  or  late  of  the  B.  & W. 
R.  R. ; thence  northerly  245  feet  9 inches  by  said  R.  R.  land  to 
Sudbury  river ; thence  northeasterly  162  feet  by  said  river  to  a 
chestnut  stump ; thence  north  52°  W.  in  a straight  line,  crossing 
said  river,  and  by  land  now  or  late  of  M.  C.  Byrnes  to  an  elm- 
tree  on  the  side  of  the  road  known  as  Central  street ; then  begin- 
ning again  at  a point  on  the  opposite  side  of  said  Central  street, 
and  running  southwesterly,  and  bounded  southeasterly  on  said 
Central  street,  to  a point  1,111  feet  and  6 inches  southwesterly 
from  the  corner  of  Central  street  and  the  road  known  as  Water 


192 


Saxonyille  Mills. 


* 


street  (measuring  along  the  northwesterly  line  of  said  Central 
street ;)  thence  running  northwesterly  in  a straight  line  to  the 
thread  of  the  stream  of  said  Sudbury  river  ; thence  northeasterly, 
and  northerly  by  said  thread  of  the  stream  for  the  greater  part  of 
the  distance  to  land  now  or  late  of  Abel  Thompson  ; thence  north- 
easterly in  a crooked  line  along  the  northerly  side  of  said  river 
and  the  Factory  pond,  so  called,  and  bounded  by  said  Thompson’s 
land,  76  feet,  and  by  land  now  or  late  of  Jairus  Barny  667^  feet 
to  said  Water  street;  then  beginning  again  at  a point  on  the 
opposite  side  of  said  Water  street,  at  land  now  or  formerly  of  said 
Barney,  and  thence  rnnning  northeasterly  by  said  Barney’s  land 
265  feet,  to  a white  oak  tree  ; thence  running  easterly  by  land  now 
or  late  of  Charles  Fiske  313  feet,  to  said  Elm  street ; thence 
running  southerly,  and  bounded  easterly  by  Elm  street,  674£  feet, 
then  crossing  said  Central  street,  and  continuing  to  run  southerly, 
and  bounded  easterly  by  said  Elm  street,  about  665^  feet  to 
the  point  of  beginning  first  referred  to  on  the  westerly  side  of  said 
Elm  street.  Said  land,  consisting  of  three  parcels,  more  or  less 
separated  from  each  other  by  said  streets,  and  containing  respec- 
tively 7 acres  and  4 rods  12  acres  and  6 rods  (including  said 
factory  pond),  and  5£  acres  and  25  rods. 

2.  A parcel  of  land  in  said  Saxonville,  bounded  as  follows  : Begin- 
ning at  land  now  or  late  of  Stone  ; thence  running  northerly,  and 
bounded  westerly  by  said  Elm  street,  235^  feet ; thence  easterly 
by  land  now  or  late  of  the  Town  of  Framingham  220^  feet ; thence 
northerly  by  said  town  land  about  88£  feet ; thence  easterly  in  a 
straight  line  33^  feet  to  land  of  said  town  (being  old  school-house 
lot ;)  thence  southerly  by  said  old  school-house  lot  69  feet,  to  land 
now  or  late  of  Pullen;  thence  easterly  by  said  Pullen’s  land  165J 
feet ; thence  southerly  by  land  now  or  late  of  C.  Fiske  31 6|-  feet ; 
thence  westerly  b}'  said  land  of  Stone  483  feet,  to  the  point  of 
beginning  on  said  Elm  street. 

3.  A parcel  of  land  in  said  Saxonville,  bounded  as  follows  : West- 
erly by  said  Elm  street  21 1^  feet,  northerly  by  Maple  street,  so 
called,  220  feet,  easterly  by  Prospect  street,  so  called,  208£  feet, 
and  southerly  by  land  of  said  town  known  as  the  High-school  lot, 
220  feet. 

4.  A parcel  of  land  in  said  Saxonville,  with  a meeting-house 
thereon,  bounded  as  follows : Beginning  at  a point  at  the  south- 
westerly corner  thereof,  distant  about  8 rods  easterly  from  the 
easterly  side  of  said  Elm  street ; thence  running  northwesterly  in 
part  by  land  now  or  late  of  Mrs.  Stevens,  in  part  by  the  end  of  a 
33-foot  lane,  and  in  part  by  land  now  or  late  of  C.  Fiske,  208J 
feet ; thence  northeasterly  by  said  land  of  Fiske,  208£  feet ; thence 
southeasterly,  in  part  by  the  cemetery  and  in  part  by  land  now  or 
lot  of  Pullen,  208£  feet;  thence  southwesterly,  in  part  by  said 
land  of  Pullen,  in  part  by  a town  road  or  passage-way,  and  in 
part  again  by  said  land  of  Pullen,  208J  feet,  to  the  point  of 
beginning. 

5.  A parcel  of  land  in  said  Framingham,  containing  one-quarter 
of  an  acre,  more  or  less,  situate  around  the  stone  bridge  which 
passes  over  F arm  Pond  brook,  so  called,  bounded  as  follows : Begin- 


Petition. 


193 


ring  at  the  southwesterly  corner,  at  a stake  and  stones  by  a small 
white  oak,  about  one  rod  south  of  the  east  end  of  the  old  dam ; 
thence  northeasterly  three  rods  to  a stake  and  stones  by  a small 
black  oak  ; thence  southeasterly  eight  rods  and  and  eight  links  to 
a walnut-tree  ; thence  six  rods  and  twenty-two  links  southerly  to  a 
black  oak  ; thence  northwesterly  nine  rods  and  twenty  links  to  the 
place  of  beginning ; with  the  right  at  all  times  to  enter  on  land 
now  a lot  of  Harrison  Eames  adjoining  the  southeast  corner  of  the 
parcel  described,  and  therefrom  to  take  gravel  sufficient  to  make 
and  keep  in  repair  a dam  across  said  brook  within  the  boundaries 
of  the  parcel  described,  and  the  right  of  erecting  said  dam  to  any 
height  the  owner  of  the  parcel  described  may  choose,  subject  to 
the  conditions,  provisions,  and  agreements  contained  in  a deed 
from  said  Eames  to  the  New  England  Worsted  Company,  of  Octo- 
ber 13,  1842,  recorded  Middlesex  Reg.  Lib.  422,  fol.  221. 

6.  A parcel  of  land  in  said  Framingham,  containing  acres 
and  14  rods,  bounded  as  follows : Beginning  at  the  northeasterly 
corner  thereof,  at  a white  ash  tree  on  the  southerly  bank  of  said 
Sudbury  river  ; thence  running  south  17  degrees,  west  30  rods  and 
13  links,  to  the  corner  of  the  wall  at  the  county  road  ; thence  north 
63  degrees,  west  2 rods  and  6 links,  to  a stake  and  stones ; thence 
north  3 degrees,  east  20  rods,  to  a stake  and  stones  ; thence  south 
74|  degrees,  west  5 rods  and  22  links,  to  a stake  and  stones  one 
rod  south  of  a chesnut-oak  on  the  bank  of  said  river  ; thence  south 
85  degrees,  west  13  rods,  to  a stake  and  stones  ; thence  north  66£ 
degrees,  west  16  rods,  to  the  end  of  a wall;  thence  north  88  de- 
grees, west  25  rods  and  2 links,  to  a poplar-tree  marked  ; thence 
north  85£  degrees,  west  29  rods  and  5 links,  to  a stake  and  stones, 
now  or  formerly  of  Nathan  Kendall ; thence  north  25^  degrees, 
east  13  rods  and  15  links,  on  land  now  or  formerly  of  said  Ken- 
dall, to  said  river ; thence  easterly  by  said  river  to  the  point  of 
beginning. 

7.  A parcel  of  land  in  said  Framingham  on  the  opposite  bank 
of  said  river  from  said  last  described  parcel,  containing  1 J acres 
and  21  rods,  more  or  less,  bounded  as  follows:  Beginning  at  a 
stake  and  stones  at  the  easterly  corner  on  the  river  bank  a few 
rods  above  the  white  ash  tree  mentioned  in  the  description  of  the 
last  described  parcel ; thence  north  45  degrees,  west  12  rods,  to  a 
stake  and  stones ; thence  north  71  degrees,  west  17  rods,  to  a small 
white  oak ; thence  north  77^  degrees,  west  8 rods  and  14  links,  to 
a stake  and  stones  by  land  now  or  late  of  Capt.  Adam  Hemenway  ; 
thence  south  52^  degrees,  west  2 rods  and  18  links,  to  a swamp 
white  oak  on  the  river  bank,  by  land  now  or  late  of  said  Hemen- 
way ; thence  easterly  by  said  river  to  the  first-mentioned  bound. 
The  boundaries  of  this  parcel  and  of  the  parcel  on  the  opposite 
bank  of  the  river  before  described  extending  to  the  centre  of  said 
river  wherever  either  of  said  parcels  are  contiguous  to  the  river. 

8.  Also  the  right  of  flowing  and  inundating  witli  the  waters  of 
said  river  a certain  tract  of  meadow-land  in  said  Framingham,  on 
the  south  side  of  said  river,  between  land  now  or  late  of  Gilman 
Meader,  and  land  formerly  of  T.  R.  Hoynes,  containing  three 
acres,  more  or  less,  and  bounded  northerly  by  said  river,  and  on 


194 


Saxonville  Mills. 


all  other  sides  by  upland  now  or  late  of  Eben  Stone,  said  land  to 
be  flowed  as  high  as  the  water  will  flow  where  the  dam  above  the 
factory  of  the  Saxonville  Mills  is  at  the  height  at  which  it  was 
Oct.  17,  1848,  subject  to  the  reservation  in  the  deed  of  said  right 
of  flowage  made  by  Ebenezer  Stone  to  the  N.  E.  Worsted  Co. 
(from  whom  the  Saxonville  Mills  derived  the  right),  dated 
Oct.  17,  1848,  and  recorded  on  the  Middlesex  Deeds,  Lib.  559, 
fol.  197. 

9.  All  the  lanes,  avenues  and  passageways  mentioned  or  referred 
to  in  the  foregoing  description  of  parcels  numbered  3 and  4,  and 
the  land  embraced  in  said  lanes,  avenues  and  passageways. 

10.  All  the  water,  water-rights,  water-powers,  mill-privileges,  and 
rights  of  flowage,  incident  to  or  connected  with  either  of  said  parcels 
of  land  in  this  schedule  described,  and  all  the  other  rights,  ways, 
easements,  privileges,  appurtenances,  to  any  of  the  same  belonging 
or  appertaining,  and  however  otherwise  than  as  aforesaid  any  of 
the  same  may  be  bounded  or  described,  and  be  any  of  said  ad- 
measurements more  or  less.  The  above- described  lands,  rights, 
and  hereditaments  being  the  same  conveyed  to  the  Saxonville 
Mills  by  John  C.  Lee  and  others,  by  their  deed  dated  March  4, 
1859,  recorded  with  Middlesex  S.  Dist.  Deeds,  Lib.  812,  page  307. 


AMENDMENT  TO  PETITION. 

Commonwealth  of  Massachusetts.  Middlesex , ss. 

Saxonville  Mills,  Petitioner,  vs.  City  of  Boston. 

And  now  the  said  petitioner  comes  and  asks  leave  to  amend  its 
petition,  by  inserting  often  the  words  “ 27T9<y8(y  feet,”  where  they 
secondly  occur  on  the  second  page  of  said  petition,  the  following 
words,  viz : 

“ Or  from  or  by  a dam,  known  as  the  ‘ old  grist  mill  dam,’  across 
said  river  about  one  mile  above  said  first-mentioned  dam,  and 
between  the  parcels  of  land  in  said  schedule  A,  described  in  clauses 
numbered  6 and  7,  which  dam  your  petitioner  has  the  right  to 
maintain  at  a height  two  feet  above  said  first  mentioned  dam.” 

By  its  Attorney, 

E.  F.  HODGES. 


DEFENDANTS’  ANSWER. 

Saxonville  Mills  vs.  Boston. 

And  now  comes  the  defendant,  and  for  answer  says  that  they  do 
not  know  whether  the  petitioner  is  the  owner  of  the  land,  buildings, 
mill  and  water  privileges  set  forth  in  said  petition,  but  leave  the 
petitioners  to  prove  the  same. 

Aud  said  defendants  further  sa3r  that  they  admit  that  under  the 


Petition. 


195 


acts  of  the  Legislature  for  the  year  1872,  chap.  177,  they  are 
authorized  to  take  the  waters  of  the  Sudbury  river,  under  certain 
restrictions,  and,  in  accordance  with  the  provisions  of  said  act,  the 
Mayor  and  Cockituate  W ater  Board  have  filed  a certain  statement 
of  such  taking  in  the  Registrar’s  office,  for  the  Register  of  Deeds, 
in  the  county  of  Middlesex,  to  which  reference  is  had  for  greater 
certainty,  and  the  defendants  admit  that  they  are  liable  lor  any 
damages  or  injury  to  which  the  petitioners  are  legally  entitled,  for 
the  taking  of  Sudbury  river  and  Farm  pond. 

But  the  defendants  deny  that  the  petitioners  are  legally  entitled 
to  any  damages,  for  any  injury  to  the  property  described,  or  that 
any  act  done  or  taking  made  by  them  has  as  yet  or  ever  can  do 
the  damages  and  injuries  set  forth  in  said  petition.  That  any 
damage  there  may  be  to  the  houses  and  buildings,  other  than  those 
used  for  manufacturing  purposes  is  remote,  and  consequential,  and 
the  petitioners  are  not  legally  entitled  to  the  same.  That,  as  to  the 
damage  to  or  taking  away  any  water  rights  that  are  are  claimed 
under  said  petition,  the  water  has  not  as  yet  been  actually  diverted, 
and,  until  such  actual  diversion,  the  petitioners  have  no  right  to 
bring  their  petition  under  said  act.  That  if  there  has  been  any 
such  taking  by  the  defendants,  it  was  more  than  three  years  before 
said  petition  was  brought.  That  under  said  act,  the  defendants 
have  power  to  take  a certain  amount  of  land  bordering  upon  said 
stream,  and  that  commissioners  should  not  be  appointed  until  said 
defendants  shall  have  had  a reasonable  time  to  determine  action 
in  that  regard.  The  defendants  further  claim  that  under  said 
petition,  the  damages  have  not  been  set  forth  sufficiently  to  comply 
with  the  provisions  of  the  said  act,  and  the  defendant  have  not 
that  description  of  the  damages  done  to  which  they  are  entitled,  so 
that  they  may  determine  whether  any  tender  for  such  damages,  and 
if  so,  how  much  should  be  made. 

And  the  defendants  admit  that  when  the  statement  is  properly 
made  pf  the  damage  to  which  the  petitioner  is  legally  entitled, 
then  the  commission  prayed  for  should  be  appointed  by  this  court. 


OPENING  ARGUMENT  FOR  PETITIONERS,  BY 
E.  F.  HODGES,  Esq. 

Mr . Chairman  and  Gentlemen  of  the  Commission : — 

This,  as  you  have  been  apprised,  is  the  petition  of  the 
Saxonville  mills,  a manufacturing  corporation  of  the  Com- 
monwealth, against  the  city ; and  I read  from  a copy  of  the 
petition  which  we  have  retained  in  the  office,  not  having 
procured  the  original.  It  is  not  a matter  about  which  there 
will  be  any  question,  so  far  as  that  goes,  and  if  there  is,  we 
will  procure  the  original  if  there  is  any  occasion. 


196 


Saxonville  Mills. 


Mr.  Butler.  I have  no  objection. 

Mr.  Hodges.  Perhaps  it  may  be  a mere  matter  of  form 
to  read  the  petition ; it  may  be  important  in  itself. 

Mr.  Butler.  I hardly  think  it  is  worth  while,  unless 
you  think  it  is.  I make  no  objection  to  form  or  substance 
either. 

Mr.  Hodges.  If  anything  is  needed,  I will  refer  to  it, 
and  at  your  request  will  call  for  it.  I will,  then,  simply  say, 
that  the  petition  has  annexed  to  it  a description  of  the  locus 
in  quo,  somewhat  specific ; as  to  that,  I will  not  unless  re- 
quested by  the  counsel  for  the  defendant  read  it,  for  it  will 
take  time ; but  I will  take  occasion,  as  we  may  need  so  to 
do,  to  refer  to  the  boundaries  or  descriptions,  with  the  un- 
derstanding that  I refer  to  them  accurately  as  they  are 
described.  I do  not  understand  that  we  are  to  encounter 
any  question  of  title. 

Mr.  Butler.  There  is  no  question  here  of  title,  or  of 
boundaay  at  all.  The  simple  question  is,  what  ought  to 
be  the  only  question  here,  — a question  of  damage. 

Mr.  Hodges.  I also  understand  that  there  is  in  the  files 
of  the  Essex  case,  to  be  continued  into  this,  as  in  other  cases, 
a copy  of  the  certificate  of  taking,  — if  that  is  the  proper 
expression  to  be  used ; and  in  that,  we  hold  ourselves  to  be 
relieved  from  very  much  of  the  formal  parts  of  the  pro- 
ceeding. The  defendant’s  answer  I will  read  or  not,  as  Gen- 
eral Butler  may  desire. 

Mr.  Butler.  I do  not  see  that  there  is  an  occasion.  We 
raise  no  issue  except  one  of  damages. 

Mr.  Hodges.  You  raise  no  issue  except  one  of  damages, 
and  if  I remember  right,  this  case  is  not  embarrassed  by  the 
existence  of  exceptions.  In  that  view,  gentlemen,  the  open- 
ing of  this  case  will  be  confined  to  a brief  statement  of  the 
proofs  we  propose  to  make.  Those,  in  reality,  confined 
rather  to  the  classification  of  proofs  than  to  the  statement  of 
details. 

You  will  have  observed,  in  taking  a view  of  these  lands, 
that  the  Saxonville  Mills  own  the  whole  of  the  water-fall  at 
the  point  where  the  stone  dam  is  raised  whence  the  water  is 
taken  to  the  mills  ; that  is,  that  the  corporation  has  no  joint 
proprietorship  with  any  other  party  in  any  of  that  water. 
The  corporation  likewise  owns  the  mills,  the  dam,  and  the 
surrounding  property  appertaining  to  the  mills  — like  freight- 
houses  and  other  outbuildings.  It  likewise  owns  at  that 
point  a large  number,  — and  we  will  show  you  substantially 
how  many,  — a large  number  of  dwelling  houses,  with  sur- 
rounding lands.  You  will  have  observed,  likewise,  that 
those  are  in  turn  encompassed  by  the  usual  conveniences  and 


Opening  Argument. 


197 


surroundings  of  a large  country  village  ; and  it  cannot  have 
escaped  you,  that  all  of  those  are  dependent  very  directly  — in 
some  cases,  possibly,  somewhat  remotely — upon  the  existence 
of  the  manufacturing  operations  dependent  upon  that  water 
power  ; that  these  are  the  results  of  the  labors,  the  ingenuity, 
and  the  earnest  purposes  of  those  manufacturers  who  have 
found  that  upon  building  a manufacturing  establishment, 
they  must  surround  it  with  instructed  and  reliable  oper- 
atives, who  are,  with  themselves,  dependent  upon  the  force 
of  this  power.  Whatever  there  is  in  that  village,  whatever 
there  is  of  beauty,  whatever  there  is  of  utility,  whatever  evi- 
dences exist  there  of  advanced  and  progressed  population, 
is  dependent  upon,  and  has  grown  out  of,  the  utilizing  of 
that  water-power.  We  are  inquiring,  not  under  what  right 
it  is  that  the  city  has  taken  from  that  place  the  force  that  has 
brought  those  people  together — that  is  no  part  of  our  duty, 
or  or  right ; but  we  do  ask,  and  we  shall  ask  you  all  the  way 
through,  gentleman,  to  consider  those  things  in  forming  your 
judgment,  and  bear  in  mind,  that  this  property  has  been 
taken  from  us,  not  by  matter  of  bargain  between  the  city  and 
the  proprietors,  but  by  force  of  a rule,  by  force  of  that  great 
rule  — eminent  domain  — important,  it  is  true,  in  the  exist- 
ence of  government  and  of  society,  but  doubtful  in  its  ap- 
plication. And  whenever  and  wherever  applied,  it  must  be 
done  under  the  great  rule,  that  the  taking  party  pays  for  the 
property  that  he  takes,  and  pays  for  it,  gentlemen,  not  as  he 
might  sit  down  and  bargain  for  it,  or,  more  particularly,  not  as 
he  might  come  to  you  and  show  what  it  is  worth  to  him,  the 
taker.  He  takes  it  at  his  option.  If  it  is  not  worth  what 
he  is  to  pay  for  it,  he  should  not  take  it;  but  he  is  not  to 
measure  the  value  of  what  he  has  taken  by  what  it  is  worth 
to  him.  He  measures  the  value  by  what  it  is  worth  to  the 
party  from  whom  he  has  taken  it.  The  taker  stands  in  that 
respect,  — using  the  term  in  no  offensive  sense,  — precisely 
in  the  position  of  the  spoiler  recognized  in  the  law,  against 
whom  everything  is  to  be  presumed ; and  in  measuring  what 
we  are  to  have  for  the  destruction  that  has  been  wrought 
upon  us,  you,  gentlemen,  will  consider  that  we  are  entitled 
to  receive  what  the  property  is  worth  that  the  city  has  taken, 
— what  it  is  worth  to  us,  — and,  again,  what  damage  is  done 
to  what  is  left. 

Beginning  with  the  first  claim  that  we  make,  and  where 
I shall,  if  the  witnesses  arrive  in  season,  endeavor  to  com- 
mence my  proof,  — beginning  at  Farm  pond,  the  petitioner 
is  proprietor  of  a tract  of  land  surrounding  and  embracing 
the  outlet  of  Farm  pond,  controlling  the  waters  that  are 
therein.  The  testimony  already  in,  shows  that  Farm  pond 


198 


Saxonville  Mills. 


may  be  raised  one  or  two  or  more  feet,  Whatever  right 
there  is  to  raise  the  waters  of  Farm  pond,  we  own,  and  shall 
ask  you  to  award  damages  therefor.  The  right  is  to  control 
the  outlet,  and  measure  out  the  water  from  Farm  pond  and 
the  river  below  at  our  will,  together  with  the  right  under  the 
mill-acts  to  raise  that  dam,  and  thus  raise  the  waters  of  Farm 
pond  one  or  two  feet,  and  control  that  much  more  of  reserved 
water.  Below  that,  you,  gentlemen,  will  remember  was 
what  was  pointed  out  to  you  as  the  grist  mill-dam.  This 
dam  has  been  in  existence  nearly  as  long  as  the  waters  of 
Sudbury  river  have  been  appropriated  to  the  uses  of  men. 
It  formerly,  and  down  to  1865,  I think,  was  occupied  by  a 
grist-mill  and  saw-mill,  and  at  times  some  other  minor 
machinery.  It  then  had  a fall  of  six  feet.  The  waters  of 
Farm  pond,  it  will  be  borne  in  mind,  fall  into  the  river  above 
that  dam.  Down  to  the  time  of  its  destruction  by  fire,  it  was 
subordinate  to  the  rights  or  commands  of  the  mill  below,  but 
was  employed  as  a reservoir  or  retaining  basin  for  whatever 
amount  of  water  it  was  capable  of  holding.  After  it  was 
burned  down,  the  proprietors  of  the  mill  below,  the  present 
petitioners,  instead  of  rebuilding  the  dam,  purchased,  at  very 
great  expense,  the  lands  upon  the  shore  of  the  pond  below 
it  and  rights  of  flowage  upon  it,  and  raised  the  dam  at 
the  pond  that  we  viewed,  — that  is  the  one  of  most  importance 
in  this  case,  — raised  that  dam  four  feet,  thus  giving  to  them 
a fall  of  about  twenty-six  feet  — twenty-five  feet  and  some 
ninety  odd  hundredths  ; retaining  a fall  of  about  two  feet  at 
the  grist-mill,  and  the  right  of  all  the  flowage  that  that  dam 
would  give,  and  increasing  the  flowage  below  all  that  it  could 
be  increased  by  raising  the  dam  four  feet.  Now,  whatever 
of  value  there  is  in  the  grist  mill-dam,  with  its  appurtenances 
and  consequences,  we  shall  ask  you  to  weigh  and  to  give  to 
us ; and  that  value  is  to  be  estimated  by  you  at  what  it  is 
worth  to  us  in  view  of  our  proprietorship  of  the  fall  below 
and  the  pond  above.  The  two  feet  of  fall  that  is  there  re- 
tained may  to-day  be  profitably  appropriated  for  mechanical 
purposes.  The  right  to  retaiii  the  water  back  by  means  of 
that  dam,  is  a right  correlative  to  the  other,  and  important 
in  view  of  the  uses  below.  We  shall  ask  you  to  give  ujs 
damages  for  that,  to  the  amount  to  which  we  are  entitled  un- 
der a fair  estimation. 

We  come  now  to  the  mill  below.  That  water-power  has 
been  utilized  for  the  best  part  of  this  century,  first  as  a flan- 
nel mill,  then  as  a broad-cloth  mill,  beginning  about  1830  as 
a broad-cloth  mill ; then,  coming,  I think,  about  1837  into 
the  possession  of  a corporation  known  as  the  New  England 
Worsted  Co.,  it  was  converted  into  a worsted  and  blanket 


Opening  Argument. 


199 


mill,  the  purpose  to  which  it  is  now  devoted.  Down  to  the 
date  I have  mentioned  in  my  last  paragraph,  1865,  the  fall 
was  about  twenty-two  feet.  It  employed  machinery  at  that 
time  ranging  all  the  way  from  300  to  330  horse-power  — 
probably  about  300.  Down  to  the  autumn  of  1844,  it  was 
run  entirely  by  water-power,  employing  the  old  breast-wheel ; 
the  water  controlled  by  a dam  varying  in  capacity  about 
midway,  I should  judge,  from  a cullender  to  something 
water-tight.  With  that  water,  and  these  appliances  for  its 
use,  the  machinery  was  run  until  the  autumn  of  1844,  when 
an  engine  rated  at  about  eighty  horse-power  was  introduced, 
and  introduced  under  these  circumstances  : In  the  season  of 

1843  (in  this  it  is  possible  I do  not  give  the  exact  year,  but 
I think  I do,  and  the  witnesses  will  correct  me  if  I do  not)  — 
in  the  season  of  1843,  a very  great  drought  prevailed  during 
the  summer,  so  much  so  that  the  mills  practically  suspended 
their  operations  for  three  weeks  ; a little  was  done,  but  the 
most  of  the  work  was  suspended.  The  consequence  was, 
that  an  engine,  rating,  I think,  at  eighty  horse-power  was 
put  in  during  that  season,  in  the  winter  of  1843-44,  and 
prepared  for  operations.  I should,  perhaps,  have  said,  if  I 
have  not,  that  the  water  carried  two  or  three  breast-wheels 
at  this  time ; there  was  no  turbine  wheel  in,  and  the  whole 
power  was  made  by  the  water  upon  those  breast-wheels. 
The  mills  at  this  time  consisted  of  three;  what  are  known, 
and  were  shown  to  you,  gentlemen,  as  No.  1,  No.  2,  and 
No.  3,  since  destroyed  by  fire.  The  machinery  in  each  was 
run  by  a separate  wheel.  In  1846  a turbine  wheel  was  put 
in,  now  employed  in  mill  No.  1,  and  a small  engine  was  put 
in  after  that  (the  date  will  be  given  you)  for  No.  2.  No.  3 
depended  entirely  upon  its  water-power.  Still  subsequently, 
the  engine  that  was  put  in  the  first  mill  was  removed,  and 
the  present  larger  engine  put  in.  During  the  war,  the 
demand  upon  the  mill  was  so  great,  that  it  become  necessary 
to  connect  the  shafts  of  mill  No.  2 with  mill  No.  3,  and  the 
reason  for  it  was  this  : mill  No.  3 prepared  all  the  stock  for 
mills  No.  2 and  No.  1.  It  was  not  possible  to  allow  that 
mill  to  stop  for  repairs  ; consequently,  the  shaft  of  No.  2 was 
lengthened,  extended  across  the  way  into  No.  3,  and  thus  the 
machinery  of  No.  3 could  be  carried  by  that  shaft  when  it 
was  necessary.  It  was  done  at  a time  when  it  had  become 
necessary  to  make  repairs  upon  the  wheel  of  mill  No.  3,  and 
thereupon  they  put  in  the  small  turbine  wheel  at  mill  No.  3, 
which  was  there  when  it  was  burned.  In  1865,  mill  No.  3 
burned  down,  and  the  machinery,  or  corresponding  machinery, 
was  accommodated  in  No.  1 and  No.  2,  with  such  additions 
to  No.  2 as  have  been  made  — the  part  which  extends  back, 


200 


Saxonville  Mills. 


where  we  saw  a quantity  of  worsted  machinery  crowded 
together,  drawers  or  spinners. 

At  about  that  time  the  dam  was  raised,  as  I have  stated  to 
you,  and  to-day  there  is  running  in  the  mills,  all  of  them, 
machinary  equalling  for  power  thirty  and  possibly  fifty 
horses  in  strength  beyond  what  was  used  in  early  times,  when 
it  became  a worsted  mill. 

I have  stated  thus  somewhat  in  detail,  and,  possibly, 
tediously,  the  incidents  in  the  history  of  this  mill ; but  it 
has  been  done,  gentlemen,  for  the  purpose  of  enabling  us  to 
reach  fairly,  and  with  as  complete  accuracy  as  the  subject 
will  admit,  the  power  we  have  there.  We  have  not,  for  a 
series  of  years,  expended  large  sums  of  money  in  keeping 
gauges  and  measuring  the  amount  of  power.  All  owned  by 
one  corporation,  nobody  associated  with  them,  they  had  what 
power  there  was,  and  measuring  it  would  neither  make  it 
more  nor  less;  and  in  all  these  years,  there  was  as  much 
prospect  of  the  City  of  Boston,  or  any  other  place,  taking 
Niagara,  as  that  they  should  take  Sudbury  river.  There 
was,  therefore,  no  occasion  for  the  corporation  to,  in  any 
degree,  inquire  into  its  power,  beyond  what  was  necessary 
in  order  to  know  what  machinery  they  would  put  in.  We 
shall  be  compelled,  therefore,  in  reaching  the  amount  of 
power  that  we  have,  to  employ  the  evidences  of,  first,  such 
tables  as  we  have  to  use  ; second,  such  theories  as  apply  to 
all  areas  of  rain  fall ; and,  third,  such  proofs  concerning  the 
amount  of  labor  done  by  those  mills,  as  we  can  furnish  you ; 
and  from  these  we  believe  we  can  arrive  at  a substantially 
correct  result.  We  have  already  seen,  that  with  all  the 
appliances  of  science,  with  the  infinitely  minute  distinctions 
that  can  be  made  by  the  mechanism  of  the  hydrostatic 
engineer,  all  of  those  matters,  in  the  end,  are  not  of  absolute 
certainty.  We  are  without  those  aids  ; but  such  as  we  have 
we  shall  furnish  you,  and  shall  endeavour  to  present  to  you 
all  the  people  who  know  anything  about  it,  and  are  capable 
of  examination  ; and  from  these  witnesses,  and  the  evidences 
that  are  before  you,  and  the  deductions  that  are  to  be  made, 
we  shall  hope  to  arrive  at  what  will  be  a satisfactory  result 
to  both  parties  in  this  case.  We  have  no  idea,  it  is  proper 
to  say,  that  the  city  desires  to  take  our  property  and  not 
pay  for  it.  We  differ  as  to  what  we  should  receive. 

It  is  proper  to  say  here,  and  have  it  go  upon  the  notes, 
that  the  petition  in  this  case  was  brought  in  April,  1875, 
within  three  years  from  the  taking  of  the  water  in  1872,  and 
after  the  taking  in  1875,  so  that  whichever  one  is  considered 
as  the  taking,  in  a technical  sense  (if,  indeed,  either  of  them 
is  to  be  considered  as  the  taking,  which  I am  warned  is 


Opening  Argument. 


201 


denied  by  the  counsel  for  the  city) , we  shall  be  within  the 
law. 

Mr.  Butler.  — I stated  to  you,  Mr.  Hodges,  that  we 
should  not  make  any  dispute  as  to  title,  and  we  do  not  in- 
tend to  generally ; but  there  is  one  matter  which  we  must 
put  in  dispute.  If  you  claim  any  right  to  use  Farm  pond 
as  a reservoir,  and  therefore  that  our  taking  it  deprived  you 
of  that  advantage,  then  we  claim  that  you  have  no  right  to 
Farm  pond  as  a reservoir  for  this  reason ; as  we  are  in- 
structed (I  want  to  put  you  fully  upon  inquiry)  that  you 
once  owned,  or  thought  you  owned  a quarter  of  an  acre  of 
land  on  which  the  old  dam  which  the  commissioners  saw 
there  was  placed,  and  which  has  gone  into  decay,  and  that 
dam  you  hold  a right  to  raise  a certain  number  of  inches  or 
feet  on  the  pond,  and  hold  it  if  you  owned  the  land;  but 
you  had  no  right  beyond  that;  you  paid  for  flowage  no 
higher  than  that  dam  flowed.  Then  the  Methodist  society 
came  and  bought  the  land  around  Farm  pond  for  camp- 
meeting  purposes ; and  they  claim  this  quarter  of  an  acre  on 
which  your  dam  is  placed,  and  they  claim  to  own  it  by  title. 
We  have  settled  with  the  Methodists  for  their  damages,  and 
the  Methodists  have  undertaken  to  warrant  and  defend  us 
against  any  claim  for  that  quarter  of  an  acre  of  land.  The 
papers  have  not  been  passed  ; but  that  would  not  affect  the 
title  at  all.  If  they  own  it,  you  do  not ; and  if  you  do  not, 
they  do  or  somebody  else  does.  So  that  we  shall  call  upon 
you  to  show  title  to  that  quarter  of  an  acre  of  land,  and  if 
you  want  any  time  to  do  that,  you  can  have  it. 

Mr.  Hodges.  You  and  I will  not  disagree  about  that. 
Let  us,  however,  at  this  point,  understand.  We  claim  that 
land,  and  with  it  claim  the  right  to  flowage  ; first,  so  far  as  that 
title  then  gave  us  a right  to  flow,  a few  inches,  as  you  have  sta- 
ted it.  Then  whatever  right  proprietorship  in  the  outlet  of  that 
pond  gives  to  flow  under  the  mill  acts,  that  we  claim.  Now, 
it  would  delay  many  people  for  me  to  fumble  over  the  deeds 
to  find  that  deed ; but  we  have  a deed  of  that  quarter  of  an 
acre,  and  whatever  that  gives  us,  we  shall  ask  for.  But  I 
will  save  all  embarrassment  about  it  by,  in  the  end,  asking 
the  commissioners  to  award  whatever  damages  they  find  for 
that  in  a separate  amount.  That  will  settle  all  questions. 

Mr.  Butler.  Perhaps  that  will  be  the  most  convenient 
way.  Any  way  to  get  at  our  exact  rights,  because  we  recog- 
nize that  we  have  done  you  substantial  damage,  aud  are 
willing  to  pay  for  it ; but  we  do  not  want  to  pay  any  more 
than  you  are  entitled  to.  We  recognize  that  your  claim  is  a 
substantial,  not  a fanciful  one. 

Mr.  Hodges.  Then,  gentlemen,  what  I have  to  say  in 


202 


Saxonyille  Mills. 


the  opening  will  be  closed  when  I re-state  to  you  what  I 
believe  to  be  our  rights  in  principle.  We  believe  we  are 
entitled  to  all  the  damages  that  have  been  done  to  us  by 
taking  away  our  property,  and  that  those  damages  are  mar- 
shalled under  two  heads  : First,  the  value  to  us  of  what  they 
have  actually  taken  away ; and  next,  the  damage  that  that 
taking  has  done  to  what  remains  to  us.  And  those  two  laws 
will  apply  alike  to  each  branch  of  damage  that  we  have  sug- 
gested to  you,  — that  done  at  Farm  Pond,  at  the  grist-mill, 
and  at  the  main  dam.  Again,  we  believe  that  we  are  entitled 
to  damages  resulting  at  the  village  of  Saxonville  from  the 
depreciation  in  the  large  amount  of  real  property  owned  by 
us  and  occupied  by  parties  dependent  upon  the  power  that 
the  city  has  taken  away.  And  I would  point  to  one  feature 
simply  of  that  damage.  Taking  this  water  away  leaves 
exposed  a large  surface,  measured,  more  or  less,  by  one 
hundred  acres  of  land  hitherto  covered  by  water,  and  now 
left  offensive  to  the  sight,  and  destructive  to  the  health  of  all 
in  the  vicinage.  All  of  these  circumstances  we  seek  to  have 
considered,  asking  never  that  you  shall  pass  that  line  which 
divides  actual  from  remote  damage.  We  probably  should 
not  disagree  in  the  principle  with  the  counsel  for  the  city  as 
to  what  the  duty  of  the  tribunal  is  concerning  that.  We 
might  disagree  about  the  exact  point  where  that  line  fell, 
but  that  that  line  existed,  and  that  one  side  of  it  the  tribunal 
could  adjudge  damages  and  the  other  side  they  could  not,  we 
should  not  disagree.  In  that  view,  gentlemen,  I shall  leave 
this  case  to  your  consideration  after  hearing  the  witnesses 
we  shall  call. 

I have  not,  in  the  opening,  General  Butler,  said  anything 
about  the  taking  of  the  water. 

Mr.  Butler.  In  this  case,  it  will  be  agreed  that  the 
Water  Commissioners  took  the  water  from  June,  1872,  until 
September,  1872. 

Mr.  Hodges.  For  seventy-five  days. 

Mr.  Butler.  Yes,  through  that  plank  ditch  which  we  saw 
on  crossing  over  ; and  then  that  sluice-way  was  stopped  up  and 
no  water  taken  through  it  until  January,  1875,  when  it  was 
opened  and  water  was  taken  to  an  amount  that  will  be  shown, 
and  continued  to  be  taken,  by  the  Water  Commissioners, 
acting  under  the  authority  of  a vote  of  the  Common  Council 
of  the  City  of  Boston,  and  then  the  Water  Commissioners 
and  Mayor  filed  a taking,  a copy  of  which  has  been  put  in, 
about  the  20th  of  January,  1875. 

Mr.  Hodges.  The  21st  of  January.  Water  was  taken 
from  the  21st  of  January  until  the  11th  of  October  — for  143 
days ; not  all  the  time,  but  143  days  during  that  period. 


Opening  Argument. 


203 


Commissioner  Kussell.  Did  the  taking  of  the  water  con- 
tinue after  the  filing? 

Mr.  Butler.  Yes,  sir.  I will  take  it  exactly  from  City 
Document  No.  103,  — the  report  of  the  Cochituate  Water 
Board  for  the  year  ending  April  30th,  1876  : — 

"An  order  of  the  City  Council  authorizing  the  Water 
Board  to  take  the  waters  of  the  Sudbury  river,  was  approved 
January  20,  1875.” 

" On  the  21st  of  that  month,  water  from  the  river  was  turned 
into  the  lake  (its  water  surface  at  that  date  standing  below 
the  conduit  bottom,  and  the  supply  to  the  conduit  kept  up  by 
pumping)  and  allowed  to  flow  till  March  18th.  The  connec- 
tion betwe’en  the  two  sources  has  been  kept  open  during  the 
year,  from  January  21st  to  March  18th,  from  March  26th  to 
April  4th,  from  April  6th  to  14th,  from  May  3d  to  10th, 
from  June  3d  to  10th,  from  July  14th  to  August  26th,  and 
from  October  2d  to  11th,  or  143  days  in  all;  the  total  flow 
being  2,555,800,000  gallons,  equal  to  a supply  of  7,000,000 
gallons  per  day  for  the  whole  year.  It  has  been  open  this 
year  (1876)  from  January  12th  to  18th,  and  from  January 
21st  to  February  19th. 

" No  water  was  wasted  at  the  overflow  of  the  lake  during 
1875”  (p.  16.) 

Mr.  Butler.  We  are  content  that  the  damages  for  the 
taking  in  1872  may  be  considered  in  this  case,  whether 
it  was  by  right  or  by  wrong.  We  will  assume,  for  the  pur- 
poses of  this  case,  that  it  was  by  right.  We  could  not  as- 
sume it  in  the  Essex  case,  because  they  have  sued  the  Com- 
missioners. I will  also  read,  to  get  at  the  exact  facts,  again, 
from  the  report  of  April  30th,  1873,  p.  23  : — 

"An  act  was  passed,  early  in  April,  granting  the  right  to  take 
water  from  the  Sudbury  river  and  turn  it  into  Lake  Cochituate, 
and  the  work  required  for  this  purpose  was  at  once  begun. 

"In  a report  to  your  board,  made  last  May,  a full  descrip- 
tion of  this  work  (then  in  progress)  was  given.  Its  chief 
features  are  a wooden  dam  across  the  river,  and  a ditch  from 
Farm  Pond  to  Beaver  Dam  Brook,  passing  through  swamp 
and  meadow  lands  of  a nature  that  requires  the  sides  of  the 
ditch  to  be  sustained  by  planking  and  bracing.  With  the 
exception  of  a bridge  over  the  outlet  of  Farm  Pond,  it  is  now 
finished.  It  is  of  a temporary  character,  intended,  with  pro- 
per attention  and  repairs,  to  last  four  or  five  years,  or  until 
a new  conduit  may  be  built  connecting  the  river  with  Chest- 
nut Hill  reservoir. 

" Water  was  first  let  into  the  ditch  June  19th,  and  was 
run  each  night  until  June  25th.,  to  draw  down  the  level  of  the 
pond  and  permit  the  deepening  at  the  mouth  of  the  ditch. 


204 


Saxon yille  Mills  . 


On  June  25th,  water  from  the  river  was  turned  into  the  pond, 
and  from  thence  let  into  the  lake,  and  the  flow  was  continued 
uninterruptedly  until  August  7th,  when  it  was  stopped  to 
finish  the  side-planking  of  the  ditch.  August  16th,  the 
communication  was  again  opened,  and  was  kept  open  till 
September  17th,  when  it  was  closed  for  the  season. 

" The  quantity  of  water  received  from  the  river  during  the 
summer  cannot  be  very  accurately  ascertained,  as  during  the 
time  of  flow  a number  of  changes  were  made  in  the  section 
and  capacity  of  the  water-course,  Rough  gaugings  were 
made,  however,  and  the  quantity  computed  from  them  is 
1,676,600,000  gallons,  or  equal  to  the  supply  required  in 
the  city,  taken  at  the  average  for  the  year,  for  110  days.” 

Commissioner  Russell.  Do  I understand  that  the  city 
agree  that  in  the  assessment  of  damages,  any  damage  sus- 
tained by  the  temporary  taking  of  the  water  from  June,  1872, 
to  1875,  may  be  considered? 

Mr.  Butler.  That  may  be  taken  into  consideration  in 
this  case,  but  not  in  the  other,  for  reasons  which  are  con- 
trolling, one  of  which  I have  stated.  That  is  to  say,  we 
must  have  a full  and  perfect  agreement  on  both  sides,  other- 
wise we  might  have  it  taken  in  by  you,  and  in  the  course  of 
six  years  a suit  for  trespass  brought. 

Commissioner  Russell.  But  that  would  not  affect  the 
question  of  interest  upon  damages,  by  dating  back  the  taking 
to  the  year  1872  ? 

Mr.  Butler.  No,  sir ; I don’t  mean  to  do  that. 

Mr.  Hodges.  We  should  not  ask  you  to  date  back  to 
the  year  1872  with  a view  to  getting  interest. 

Mr.  Butler.  You  may  date  back  for  interest  on  whatever 
you  find  that  taking  to  have  been  ; but  not  interest  on  the 
general  taking,  for  that  would  be  unjust. 

Mr.  Hodges.  No,  sir;  I am  inclined  to  think  that  we 
shall  approach  this  matter  more  intelligently  by  calling  a 
a witness  whom  we  had  to  examine  the  machinery  in  the 
mill,  and  take  measurements  of  the  power  required  to  oper- 
ate it.  I will,  therefore,  call  Mr.  Samuel  Webber. 


Samuel  Webber,  sworn. 

Q.  (By  Mr.  Hodges.)  What  is  your  occupation? 

A.  Civil  engineer. 

Q.  How  long  have  you  been  engaged  in  that? 

A.  More  or  less  for  25  or  30  years. 

Q.  Is  there  an}'  particular  department  of  civil  engineering  to 
which  you  have  given  your  attention  ? 


Charles  Webber. 


205 


A.  The  last  five  years  entirely  to  questions  of  power. 

Q.  Mechanical  power? 

A.  Yes,  sir. 

Q.  Are  you  or  not  familiar  with  the  use  of  the  (tynamometer  ? 

A.  Pretty  thoroughly,  I think. 

Q.  If  you  have  been  called  upon,  will  you  state  what  you  have 
done  in  reference  to  measuring  the  machinery  at  the  Saxonville 
mills?  State  it  with  deliberation,  so  that  the  reporter  can  take  it 
down,  and  in  detail. 

A.  I was  requested  in  August  of  this  year,  to  take  the  dyna- 
mometer which  I use,  and  which  was  built  by  the  Amoskeak  Com- 
pany of  Manchester,  under  the  direction  of  Governor  Straw,  the 
calculations  afterwards  verified  by  myself,  which  has  been  tested 
with  the  two  dynamometers  belonging  to  the  Locks  and  Canal 
Company,  and  found  to  agree  with  them.  I took  this  dynamome- 
ter, on  the  14th  of  August?  to  Saxonville,  where  I measured  por- 
tions of  all  the  machinery  employed,  enough  to  get  a pretty  accu- 
rate average  of  the  power  required  by  each  class  of  the  machines, 
at  the  following  result.  This  I can  either  give  you  in  detail  of 
every  machine,  or  each  class  of  machines,  or  the  general  summary 
of  the  mills. 

Q.  I will  call  your  attention  to  mill  No.  1,  and  the  machinery 
contained  in  it.  What  did  you  find  to  be  the  horse-power  em- 
ployed in  running  that  machinery? 

A.  239,447  horse-powers. 

Q.  How  much  in  mill  No.  2? 

A.  86,154  horse-powers.  Total,  325,601. 

Mr.  Hodges.  I will  say,  that  Mr.  Webber  measured  mill  No.  1, 
and  it  includes  the  machinery  in  the  L part  that  extended  back, 
which  we  saw.  I only  speak  of  it  in  order  that  you  may  not  be 
led  into  confusion  hereafter  in  the  examination  of  the  witnesses. 

Witness.  I should  also  perhaps  state,  to  make  the  matter  per- 
fectly clear,  that  what  I call  mill  No.  2 includes  machinery  in  two 
buildings,  mill  No.  2 and  3,  as  I believe  they  call  them,  but  it  was 
machinery  driven  from  the  left-hand  side  of  the  engine.  I call  it 
No.  2,  to  agree  with  their  own  customary  mode  of  reckoning. 

Q.  (By  Mr.  Russell.)  Does  this  include  all  the  machinery  of 
the  entire  mills? 

A.  This  includes  the  entire  machinery. 

Q.  Of  all  the  mills? 

A.  Yes. 

Mr.  Hodges.  He  speaks  of  it  as  including  it  all,  but  there  is 
an  exception  to  which  I was  about  calling  his  attention.  Did  you 
at  that  time  take  the  measure  of  any  machinery  save  in  mill  1 and  2 ? 
I particularly  refer  to  the  basement  of  mill  No.  4. 

A.  I do  not  recall  any  knowledge  of  any  mill  No.  4.  I took 
measurements,  made  an  examination  of  the  machinery  in  a mill 
which  they  called  No.  2,  at  the  left-hand  of  the  engine,  and  then 
of  certain  gigs  and  finishing  and  weaving  machinery  in  a mill  back 
of  that. 

Mr.  Hodges.  We  shall  show  by  the  testimony  of  Mr.  Hill,  the 
superintendent,  that  there  is  a little  machinery  in  the  basement  of 


206 


Saxonville  Mills. 


No.  4 which  he  did  not  take, — we  omitted  to  point  it  out  to  him, 
— which  would  increase  the  amount  of  power  a little.  The  items 
of  machinery  amount  to  perhaps  25  or  30.  I will  now  examine 
him  as  to  each  of  these  items,  content  to  stop  whenever  I have 
gone  as  far  as  the  gentlemen  desire. 

Q.  Will  you  begin  now  at  mill  No.  1,  the  basement. 

A.  Shall  I go  on  in  the  exact  form  in  which  I examined  the 
separate  machines  ? 

Q.  If  you  please.  In  other  words,  take  your  own  course,  and 
tell  the  gentlemen  clearly  what  you  did,  and  what  the  result  was 
of  your  measurements  ? 

A.  I commenced  in  basement  of  mill  No.  1,  with  a worsted 
card  and  comber,  a combined  machine,  40  inches  wide,  making 
115  revolutions  a minute  and  carding  300  pounds  of  wool  per  day, 
of  which  I find  the  power  required  to  be  2.113  horse-power.  I 
then  measured  a narrower  card  doing  the  same  amount  of  work, 
34  inches  wide,  and  the  power  required  for  that  machine  I found 
to  be  1.732  horse-power.  I took  next  three  roving  frames,  which 
I took  altogether.  I found  the  power  required  for  the  three 
frames  to  be  1.1  horse-power.  That  included  all  the  varieties  of 
machinery  in  the  basement.  I then  went  up  stairs  to  the  next 
room,  known  as  the  lower  spinning-room,  where  the  first  machine 
I tested  was  a flyer  spinning-frame  of  128  spindles,  the  spindles 
making  3,110  revolutions  a minute.  The  power  of  that  frame  I 
found  to  be  2.3  horse-powers,  which  was  equivalent  to  9.88  foot 
pounds  per  spindle.  There  were  in  all  36  frames  in  that  room, 
with  3,744  spindles,  the  frames  varying  somewhat  in  size,  so  that  I 
reduced  it  to  single  spindles,  which  gave  me  for  the  power  of  the 
spinning  in  that  room  67.256  horse-powers. 

The  next  thing  which  I tested  was  the  five  roving,  known  as 
u dandy  roving  ” among  worsted  spinners,  usually.  That  was  in 
the  same  room  — the  L of  the  mill,  on  the  same  level.  The  frame 
which  I tested  of  12  spindles  required  0.559  of  a horse-power. 
Pro  rata , the  168  spindles  would  require  7.827  horse  powers. 
There  were  then  50  spindles  of  second  or  intermediate  roving, 
which  I tested.  One  frame  took  0.439  of  a horse-power.  The 
whole  would  foot  up  9.166  horse  powers.  I then  found  on  that 
level  some  machines  on  which  I could  not  put  the  dynamometer  to 
measure,  on  account  of  the  belts  coming  directly  through  the  floor. 
There  was  no  opportunity  for  the  insertion  of  the  dynamometer, 
but  they  were  all  machines  similar  to  machines  which  I had  tested 
in  other  mills,  and  of  which  I had  records,  and  which,  therefore,  I 
was  obliged  to  estimate  by  my  previous  records,  amounting  in  all, 
for  five  spoolers,  to  one-horse  power  and  a quarter ; three  twisters, 
six  horse-powers  ; eight  reels,  two  horse  powers.  I then  went  to 
the  upper  spinning-room,  where  there  were  eleven  twisting  frames, 
running  2,600  revolutions  per  minute  to  the  spindle.  I tested  one 
of  these  (fames,  getting  a result  in  power  of  2.91  horse  powers, 
giving  for  the  eleven,  29.735  horse. powers.  On  the  same  floor 
were  17  blanket  looms,  of  which  I tested  one,  taking  0.185  of  a 
horse-power.  Not  considering  that  the  test  of  a single  loom  can 
be  made  with  positive  accuracy,  I have  reduced  my  estimate  to 


Charles  Webber. 


207 


one-sixth  of  a horse-power  for  each  loom.  I then  took  a card- 
room,  where  I tested  thoroughly  a complete  system  of  cards,  re- 
peating the  tests,  finding  the  first  breaker  card  I took  0.88  of  a horse 
power  ; the  second  breaker  card  0.775  ; the  third,  or  finishing  card, 
0.771  ; making  for  the  set  2.426  horse-powers.  There  were  five 
sets  in  that  room  which  would  amount  to  12.130  horse  powers,  and 
there  were  five  sets  more  in  another  room  in  the  mill  which  were 
belted  up  from  below,  which  I could  not  test,  which  I estimate  at 
the  same  powers  with  those  which  I had  tested. 

I came  next  to  the  jack  spinning,  and  found  eight  self-operating 
jacks,  built  by  Davis  & Forber,  varying  in  size.  I took  an  aver- 
age one  of  150  spindles,  which  gave  me  0.976  of  a horse-power. 
The  eight,  calculated  in  the  same  way  per  spindle,  would  amount 
to  7.746  horse-powers. 

The  next  thing  which  I tested  was  a filling-winder  in  the  attic, 
which  took  a horse-power  and  0.954.  There  were  also  three  jacks 
in  the  attic,  which,  taken  to  be  of  the  same  power  as  the  one 
which  I tested  below,  gave  1.952  horse-power.  A wool-picker  in 
an  annexed  picker-house,  running  480  revolutions  a minute,  re- 
quired seven  horse-powers.  There  are  two  of  those  machines. 
There  were  also  in  the  same  shed,  attached  to  the  basement,  two 
rag-pickers,  which  took  a little  more  power  than  the  wool-picker, 
being  7.324  horse-powers  each.  I believe  that  covers  the  items  of 
the  separate  machines  tested  in  the  No.  1 mill,  a summary  of 
which  altogether  is,  as  I have  stated  239,447  horse-powers. 

Q.  Now  mill  No.  2 ? 

A.  In  mill  No  2, 1 tested  a wool-picker  in  the  attic  which  varied 
from  the  ones  which  I had  tested  below,  not  doing  as  much  work, 
which  took  5 3-4  horse-powers.  The  remaining  machinery  in  No. 
2 I took  from  the  tests  in  No.  1,  where  the  machines  were  similar. 
There  were  nine  sets  of  cards,  eight  jacks,  and  36  of  the  same 
looms,  the  looms  being  in  the  building  behind  which  I suppose 
was  No.  3.  I have  it  No.  2 and  No.  3. 

Mr.  Hodges.  It  was  not  No.  3 .;  it  was  No.  2. 

Witness.  There  were  then  certain  machines  in  the  basement, 
which  I was  obliged  to  take  from  previous  records,  which  I found 
it  impossible  to  attach  my  dynamometer  to,  and  which  at  the  slow 
speed  of  the  shafting,  I could  not  drive  through  my  dynamometer, 
without  having  extra  shafting  put  up  for  the  purpose.  I therefore 
took  that  machinery,  consisting  of  eight  rotary  fulling-mills,  two 
hydro-extractors,  four  rinsers,  and  six  gigs,  from  previous  records 
made  at  other  woollen  mills,  as  follows  : 


There  was  then  a small  skein-winder  which  I estimated,  as  by  a 
previous  test,  at  a quarter  horse-power ; and  three  fancy  looms, 
which  I called,  also  lrom  previous  records  of  many  fancy  harness 
looms,  at  a half  horse-power,  each  making  the  footing  for  No.  2 
mill  86.154  horse-powers.  At  the  time  I was  there,  this  machin- 


Rotary  fulling-mills, 

Aydro-extractors, 

Rinsers, 

Gigs, 


2 1-2  horse  power. 


2 each. 

1 each. 

2 each. 


208 


Saxon ville  Mills. 


ery  in  the  two  mills  was  not  all  running.  One  set  of  cards  were 
stopped  in  No.  1 mill ; half  a dozen  looms  were  standing,  and  a 
proportionate  amount  of  the  finishing,  fulling-mill,  &c.,  was  con- 
sequently stopped  from  that  stoppage,  amounting,  as  I calculated, 
to  from  10  to  12  horse-powers.  I then  verified  my  observations 
with  the  dynamometer  b}?-  taking  the  indicator  cards  from  the 
steam  engine  of  the  amount  actually  running  at  the  time  I was 
there,  which  footed  314,  — 2 horse-powers  being  driven  at  that  time 
by  the  engine. 

Mr.  Butler.  So  that  your  amount  here  325.601  would  be  the 
amount,  if  all  the  machinery  had  been  running? 

A.  Yes. 

Q.  (By  Mr.  Hodges.)  Mr.  Webber,  in  making  this  estimate 
of  horse-power,  did  you  take  into  account  the  power  necessary  to 
turn  the  shafting  ? You  applied  your  dynamometer  directly  to  the 
machines.  How  did  you,  in  doing  that,  estimate  the  power  neces- 
sary to  move  the  shafting,  and,  in  fact,  to  communicate  the  force 
of  the  engine  to  each  particular  machine?  and,  if  you  did  not, 
what,  if  anything,  did  you  do  to  compensate  for  that? 

A.  I was  guided  in  that  by  a number  of  previous  experiments, 
by  which  I have  found  that  the  total  amount  of  the  machinery  in 
the  mill,  footed  up  by  the  dynamometer  measurement  of  each 
machine,  is  not  very  far  from  the  actual  amount  of  power  required 
to  drive  such  portion  of  the  machinery  as  is  in  daily  average 
operation,  with  the  necessary  shafting  ; that  is  to  say,  that  there 
will  be  about  10  per  cent,  additional  required  for  the  simple  shaft- 
ing, according  to  a great  number  of  experiments  that  I have  made  ; 
and  in  the  ordinary  running  of  the  mill  there  will  be  about  10  per 
Cent,  of  the  machinery  stopped  for  doffing,  stripping,  and  changing 
shuttles  ; so  that  the  actual  product  of  a mill  is  seldom  more  than 
about  nine-tenths  of  what  the  machinery  would  do  if  it  was  all  in 
operation.  Therefore,  I think  that  one  about  compensates  for  the 
other.  And  I have  had  two  occasions  on  which  I have  been  able 
to  verify  it  with  very  considerable  accuracy  — one  in  the  case  of 
the  Whiddendon  Mills  at  Taunton,  where,  three  or  four  years 
since,  a water-wheel  was  put  in  with  the  closest  possible  shave 
for  power.  I had  made  it  with  100  horse-power  required  to  drive 
the  machinery  alone.  The  same  people  wished  me  to  put  in  awheel 
which  they  tabled  at  110.  They  asked  me  if  I thought  it  was 
safe  to  run  so  close.  I told  them  that  I thought  they  might  do  it. 
They  did  so,  and  six  months  afterwards,  when  I was  at  Taunton, 
I was  requested  by  Mr.  Lovering  to  go  down  to  the  wheel-pit 
with  him,  and  see  how  beautifully  he  had  his  gate-rack  — lifted  all 
but  one  tooth  — and  the  wheel  was  driving  the  machinery.  The 
same  system  was  adopted  the  following  year  at  the  mill  at  Woon- 
socket, where  the  power  of  the  machinery  footed  223  or  226  (I 
am  not  actually  sure  of  my  memory  as  to  the  last  figure).  At  all 
events,  the  wheel  put  in  was  agreed  to  do  precisely  that  amount  of 
work  under  13-feet  head  ; and  I found  that  it  did  it,  and  just  fairly 
did  it  — i.  e.,  that  of  machinery  which  weighed  226  by  dynamo- 
meter, if  it  was  all  in  operation,  the  portion  which  was  the  regular 


Charles  Webber. 


209 


average  running  was  driven,  with  its  shafting,  by  the  wheel  which 
was  guaranteed  to  give  the  same  amount  of  power. 

Q.  (By  Gen.  Butler.)  That  is,  if  I understand  the  average 
amount  of  machinery  that  will  be  stopped,  in  the  necessary  work- 
ing of  the  mill,  will  be  about  equal  to  the  amount  of  power  re- 
quired to  carry  the  shafting? 

A.  That  is  the  result  of  my  experience. 

Q.  (By  Mr.  Hodges.)  And  you,  in  that  judgment,  are  referring 
to  mills  of  the  varied  machinery  that  is  found  in  those  like  this, 
where  there  is  at  once  carding,  spinning,  and  weaving  and  their 
various  appliances? 

A.  Entirely  ; where  every  kind  of  machinery  used  in  the  manu- 
facture of  cloth  is  in  operation. 

Q.  Now,  did  you  at  this  time  make  an  examination  of  the 
means  of  using  water,  and  did  you  examine  the  wheels?  If  so, 
first  state  as  to  the  water-wheels  that  are  there,  and  then  proceed 
with  whatever  you  have  to  say  concerning  the  water-power,  etc. 

A.  I will  state  that  I was  unable  to  examine  the  wheels.  They 
were  submerged,  and  I could  not  get  at  them.  I examined  the 
dam,  water-ways,  flumes,  etc.,  all  of  which  I found  to  be  of  very 
thorough  and  admirable  construction.  But  the  wheels  were  not  to 
be  seen  without  rigging  up  a steam  pump,  and  pumping  the 
dam. 

Q.  Whatever  memoranda  you  took  of  the  wheels  was  from  in- 
formation given  at  the  mills  ? 

A.  Information  given  me  by  Mr.  Hill,  the  machinist. 

Q.  Now  as  to  the  dam  — the  flumes  first,  and  then  I shall  come 
to  the  wheels  afterwards.  Will  you  state  what  the  cost  of  con- 
structing such  a dam  as  that  is,  in  your  judgment,  if  you  are 
familiar  with  that  subject? 

A.  I hardly  think  I could  give  the  statement  at  present.  I 
should  require  more  accurate  measures  of  the  width  and  height  of 
the  dam  than  I now  have. 

Q.  Are  you  not  sufficiently  familiar  with  it  to  give  a general 
judgment  upon  it? 

A.  I should  prefer  not  to.  It  is  a matter  that  could  be  calcu- 
lated if  I had  the  measurements. 

Q.  What  of  the  flume? 

A.  As  I said,  I found  that  the  whole  work  appeared  to  me  to 
be  of  the  best  construction. 

Q.  Is  it  a matter  that  would  require  from  year  to  year  any  sub- 
stantial expense  for  repairs,  or  take  care  of  itself  ? 

A.  Very  slight  indeed.  Everything  seemed  to  be  very  thor- 
oughly done. 

Q.  Now,  sir,  could  you  estimate  the  cost  of  the  flume,  the 
medium  of  conducting  the  water  to  the  wheel-pits  ? 

A.  No,  I could  not. 

Q.  Did  you  sufficiently  examine  the  wheel-pits  to  be  able  to 
give  the  commissioners  the  cost  of  those  wheels  and  of  the  putting 
them  in,  if  I were  to  give  you  the  dimensions? 

A.  No,  sir.  It  would  be  impossible  for  me  to  give  any  accu- 


210 


Saxon yille  Mills. 


rate  estimates  without  a further  examination,  and  in  a different 
direction  from  the  one  that  I have  made. 

Q.  When  you  have  spoken  of  indicator-cards  of  the  engine 
showing  314  horse-power,  you  meant  to  convey  the  idea  that  they 
show  the  use  of  314  horse-power  constantly? 

A.  It  was  being  actually  used  at  the  day  on  which  I took  the 
cards,  with  (as  I before  stated)  what  I estimated  to  be  10  to  12 
horse-power  stopped. 

Q.  Perhaps  we  shall  get  some  light  by  looking  at  this  from 
another  direction,  Mr.  Webber.  What  is  the  estimated  horse- 
power required,  per  set,  for,  we  will  say,  a set  of  flannel  ma- 
chinery ? 

A.  It  is  usually  considered  to  be  somewhere  from  6 to  7 horse- 
power for  a set  of  cards  on  flannel  work,  for  all  the  machinery. 

Q.  (By  Gen.  Butler.)  The  necessary  machinery  to  use  up  the 
product  of  such  cards  is  what  you  mean? 

A.  Yes,  sir. 

Q.  (By  Hodges.)  Does  that  include  the  machinery  as  now 
speeded,  at  the  speed  at  which  it  is  usually  run,  and  does  it  include 
taking  the  wool  at  the  scouring,  and  again  the  scouring  of  the 
flannel,  with  all  the  processes  between? 

A.  I think  it  would  cover  the  power  required  for  making  light 
flannels. 

Q.  Suppose  you  take  heavy  work,  like  that  blanket  work  which 
they  were  doing  Saxonville? 

A.  The  power  would  then  be  set  at  not  more  than  9 horse-power 
for  a set  of  cards  possibly  worth  ten,  the  hydro-extractors,  fullers, 
and  gigs  requiring  a good  deal  of  power,  and  additional  to  that 
required  for  the  simple  scouring  in  a flannel  mill. 

Q.  Did  you  take  a measurement  of  the  fall  there? 

A.  The  water  not  being  in  operation  I could  not  get  what  the 
real  working-head  was.  There  was  an  apparent  fall  of  over  24 
feet,  which  would  be  diminished  of  course  in  actual  operation. 
Not  having  the  levels,  it  would  amount  to  nothing  as  it  stood 
there. 


Cross-Examination . 

Q.  (By  Mr.  Butler.)  Everything  was  running  by  steam,  you 
say,  Mr.  Webber? 

A.  It  was  when  I was  there. 

Q.  You  were  asked,  I suppose,  to  take  all  the  machinery,  were 
you  not? 

A.  Yes,  sir. 

Q.  You  supposed  that  you  did? 

A.  Yes,  sir. 

Q.  If  there  was  any  omitted,  it  was  omitted  by  accident? 

A.  Yes,  sir  ; it  was  omitted  by  accident.  I thought  I got  every- 
thing. 

Q.  Was  the  superintendent  of  the  work  with  you,  showing  you 
about? 

A.  He  was  with  me  a greater  part  of  the  time. 


William  H.  Cautek. 


211 


Q.  (By  Mr.  Hodges.)  Name  the  person  who  was  with  you. 

A.  Mr.  Hill  was  with  me.  He  showed  me  all  the  different 
machines,  as  I understood.  He  showed  me  all. 

Q . (By  Mr.  Butler.)  Did  you  observe  what  the  engine  could 
do,  run  properly  and  well  — whether  it  would  make  any  more 
power  than  this? 

A.  It  was  running  very  easily  indeed,  and  freely,  with  this  314 
horse-power.  I have  no  doubt  it  could  be  forced  up,  if  necessary, 
to  350.  It  was  running  very  quietly  and  steady  at  that,  and  run- 
ning with  remarkable  uniformity  in  some  respects,  that  is  to  say, 
the  engineer  who  was  running  it  seemed  to  be  a very  skillful,  prac- 
tical man,  and  had  it  so  well  balanced  that  while  one  summary 
gave  140.56,  the  other  gave  140.79. 

Q.  Was  it  well  worked?  Was  it  working  easily ? 

A.  Yes,  sir. 

Q.  I suppose  your  experience  is  like  that  of  others,  that  where 
a steam  engine  is  running,  and  not  brought  up  to  its  capacity, 
there  is  no  expense  in  making  10,  20,  30,  40  or  50  extra  horse- 
power? 

A,  Within  a reasonable  limit. 

Q.  Except  the  coal,  waste,  and  oil  ? Is  that  all  ? 

A.  Yes,  sir. 

William  H.  Carter,  sworn . 

Q.  (By  Mr.  Hodges.)  Where  do  you  reside  ? 

A.  In  Lowell. 

Q.  What  is  your  occupation  ? 

A.  Manufacturing. 

Q.  Do  you  know  the  Saxonville  Mills? 

A.  Yes,  sir. 

Q.  How  long  have  you  known  that  property? 

A.  Well,  since  1844. 

Q.  Have  you  ever  been  employed  in  that  mill? 

A.  Yes,  sir.  I was  employed  there  in  various  capacities  from 
1844  to  1864,  being  away  during  that  time  about  two  years  — be-  - 
tween  1854  and  1856. 

Q.  So  that  substantially  you  were  acquainted  with  that  property 
from  1844  to  1864? 

A.  Yes,  sir. 

Q.  What  were  you  first  employed  in  there  — beginning  with 
1844? 

A.  I was  employed  during  the  winter  of  1844  as  a spinner  in 
No.  2 mill. 

Q.  At  that  time  describe  the  different  mills,  i.e.,  state  what 
mills  there  were  there? 

A.  There  was  No.  1,  substantially  as  it  now  is,  and  No.  2 and 
No.  3.  There  were  some  other  out-buildings,  of  course — store- 
houses. 

Q.  I have  reference  simply  to  the  mills  — those  in  which  the 
operating  machinery  was  employed.  In  what  were  they  engaged 
at  that  time  ? 


2 12 


Saxonville  Mills. 


A.  The  manufacture  of  worsteds,  blankets,  and  some  other 
cloth  — coarse  goods. 

Mr.  Hodges.  Substantially  the  same  work  that  they  are  doing 
now. 

Q.  (By  Mr.  Butler.)  Have  you  been  there  lately? 

A.  I have  been  there  frequently  since  I left. 

Q.  (By  Mr.  Hodges.)  You  refer,  of  course,  simply  to  the 
machinery  that  is  employed.  Now,  sir,  beginning  with  1844,  when 
you  first  knew  it,  what  was  the  power  employed  there  when  you 
first  went  there? 

A.  What  do  you  .refer  to?  Do  you  mean  to  ask  whether  it  was 
water-power  or  steam-power. 

Q.  Yes,  sir.  And  if  water-power,  how  it  was  communicated  to 
the  machinery,  how  it  was  employed,  what  kind  of  wheels,  &c.  ? 

A.  Well  it  was  substantially  water-power.  It  was  employed  in 
each  of  the  three  mills  by  breast  wheels  — a wheel  in  each  mill. 

Q.  Was  there  a steam-engine  there  at  that  time? 

A.  Well  I think  that  the  engine  in  No.  1 was  put  in  about  that 
time  that  I first  went  there. 

Q.  Do  you  remember  the  time  of  the  year  that  you  went 
there  ? 

A.  Yes,  sir. 

Q.  What  time  was  it? 

A.  In  October. 

Q.  Well,  had  that  engine  then  been  running? 

A.  I could  not  tell  you  certainly  about  that ; but  I know  I heard 
the  engine  spoken  of  as  a new  engine  then,  and  as  being  in. 
Whether  it  had  run  any  or  not,  I could  not  say. 

Q.  When  were  the  turbine  wheels  put  in? 

A.  Well,  the  first  turbine  wheel  was  put  in  in  No.  1 — the  Boy- 
den  turbine  wheel  — I think  it  was  in  1846.  Not  recollecting 
what  I was  doing  at  that  time,  I have  no  dates  by  which  I could 
fix  it ; but  it  was  about  that  time. 

Q.  Had  you  anything  to  do  with  putting  it  in? 

A.  Yes,  sir,  I was  connected  with  putting  it  in  — working  in 
* the  yard.  I had  charge  of  some  of  the  work  connected  with  the 
repairing  of  the  wheql-pit  — and  that  work. 

Q.  Can  you  give  the  dimensions  of  that  wheel  ? 

A.  No,  sir. 

Q.  We  will  show  it  in  another  way.  When  was  the  next  tur- 
bine wheel  put  in,  and  where? 

A.  The  year  when  the  next  one  was  put  into  No.  2 I could  not 
tell,  but  I think  it  was  during  the  two  years  that  I was  away. 

Q.  As  we  are  upon  turbine  wheels,  I will  ask  when  was  the 
third  put  in,  and  where? 

A.  Well,  the  third  was  put  in  in  1860, 1 think.  I put  the  third 
in  myself  in  No.  3. 

Q.  If  you  ever  acted  as  general  superintendent  of  the  mill, 
please  state  when  and  how  long. 

, A.  From  1856  to  1864,  — or  eight  years. 

Q.  Well,  now,  sir,  going  back,  during  the  time  you  were  there, 
all  the  time,  superintendent  or  otherwise,  were  you  aware  of  there 


William  H.  Carter. 


213 


being  kept  any  record  of  the  time  when  the  steam-engine  ran,  and 
when  the  mills  were  run  entirely  by  water? 

A.  I think  not,  sir.  We  never  kept  any  record  of  that  kind. 

Q.  As  superintendent  of  the  mill,  you  of  course  knew  about  the 
running  by  water,  and  of  the  running  by  steam.  As  an  operative 
in  the  mill,  you  had  greater  or  less  occasion  to  observe  it.  Will 
you  state,  from  the  time  when  you  first  knew  that  mill  until  you 
left  it  in  1364,  and  from  what  you  have  known  since,  what  portion 
of  time  in  the  year  (take  the  average  of  years  together)  the  mills 
were  run,  all  of  them,  by  water? 

A.  Well,  there  would  be  some  variations  in  years.  Some  years 
we  run  very  little  by  steam.  In  other  years  that  were  peculiarly 
dry,  we  run  more ; and  I should  think,  as  far  as  I could  judge, 
that  certainly  the  mills  would  all  average,  to  run  by  water,  from 
eight  and  a half  to  nine  months  in  the  year. 

Q.  What  do  you  mean  when  you  say  from  eight  to  nine  months, 
all  of  them,  — do  you  mean  running  night  and  day,  or  running 
all  day  — the  day  being  ten  or  eleven  hours,  perhaps? 

A.  I mean  running  in  the  daytime. 

Q.  Well,  now,  supposing  that  you  say  that  the  mills,  all  of 
them,  ran  eight  and  a half  to  nine  months  in  the  year  by  water, 
state  what,  if  anything,  could  be  run  the  remainder  of  the  year. 

Mr.  Butler.  Do  you  mean  “ was  run,”  or  “ could  be  run  ” ? 

Q.  (By  Mr.  Hodges.)  I mean  u was  run.”  Remember,  all  the 
time,  that  for  the  present  we  are  speaking  only  of  the  days’  works, 
— running  in  the  daytime  and  not  in  the  night. 

A.  Please  ask  your  question  again. 

Q.  Supposing  that  you  have  carried  all  the  mills  along  eight 
and  a half  or  nine  months  by  water.  There  remains,  then,  three 
or  three  and  a half  months  of  the  year  in  which  we  have  not  spoken 
of  water.  Now,  were  any  of  the  mills  running  clear  through  by 
water  ? 

A.  I have  taken  in,  in  making  my  estimate,  that  idea,  as  far  as 

1 can.  Some  years  we  ran  one  of  the  mills  clear  through.  No.  3 
always  ran  by  water.  It  was  not  intended  to  have  steam  power 
there  at  all ; and  No.  2 often  ran  during  the  entire  year  by  water 
without  making  any  steam  connection  ; but  we  never  could  run  all 
the  machinery.  At  other  times  we  had  to  make  steam  connection 
in  Nos.  1 and  2 ; but  never  expecting  to  use  steam,  unless  in  an 
exceptionally  dry  time,  towards  June,  and  always  expecting  to  get 
water  to  run  the  machinery  from  the  last  of  September  to  October. 
During  that  time  we  changed  and  put  No.  1 into  steam.  When  it 
was  getting  low,  and  we  had  almost  enough,  we  would  change  No. 

2 into  steam.  But  if  we  found  that  the  water  was  going  down 
rapidly,  we  changed  No.  1 into  steam  ; and  then  we  put  the  other 
mill  on,  — even  changing  once  in  a week,  back  and  forth.  If  we 
had  a rain  like  the  one  of  last  night,  we  should  give  the  superin- 
tendent orders  to  put  on  water  this  morning.  It  was  a steam  that 
came  up  very  quick  and  went  down  very  quick,  and  we  were 
changing  back  and  forth  during  those  few  months  all  the  time.  I 
should  expect  that  if  an  accurate  record  had  been  kept,  it  would 
show  that  we  ran  by  water  perhaps  eight  and  a half  or  nine  months 


214 


Saxonville  Mills. 


on  an  average,  — some  years  very  much  more  ; others  probably  it 
would  be  less.  I know  when  we  were  running  through  the  war, 
there  was  one  season  (in  1863,  I think)  that  we  scarcely  ran  any- 
thing by  steam  at  all,  while  running  nights  and  days  all  the  ma- 
chinery ; but  I think  that  was  an  exceptionally  wet  year. 

Q.  (By  Mr.  Butler.)  It  was  exceptionally  wet? 

A.  Yes,  sir. 

Mr.  Hodges.  The  tables  show  that  it  was  exceptionally  wet 
during  the  time  that  he  means. 

The  Witness.  Yes,  sir,  we  very  seldom  did  it,  and  it  was  onty 
in  the  winter,  and  after  we  commenced  in  October ; except  that  it 
might  be  when  the  little  rivulets  and  streams  were  suddenly  filled 
up,  and  then  they  would  be  dry  again,  and  we  would  be  short  of 
water  in  a few  days. 

Q.  No.  3 you  never  ran  by  steam? 

A.  We  never  did, — only  in  case  of  repairs,  as  the  shafting  was 
put  across.  At  the  time  that  we  were  running  night  and  day  in 
the  war,  and  we  were  contracted  up  to  all  we  could  produce,  and 
No.  3 mill  prepared  all  the  wool  for  the  others,  and  it  was  neces- 
sary that  we  should  be  provided  against  any  stoppage  in  any  con- 
tingency, then  we  connected  the  shaft  with  No.  2,  and  during  that 
connection  we  connected  the  new  wheel  there  and  ran  that  by 
steam  or  water,  just  as  we  had  necessity,  during  that  time.  That 
was  for  five  or  six  weeks.  That  was  during  the  war. 

Q.  Down  to  that  time  there  was  no  means  of  running  No.  3 on 
steam  ? 

A.  No,  sir;  we  never  had  any  occasion.  We  always  had 
plenty  of  water,  or  very  seldom  failed  of  it.  It  was  an  extremely 
dry  season  that  we  did  not  have  more  than  water  enough  to  run 
No.  3.  We  never  felt  any  concern  about  that  at  all. 

Q.  So  the  connection  was  made  in  order  to  avoid  contingencies, 
when  water  was  required  in  the  water  department, — No.  3 being 
the  preparing  mill  for  all  these?  Is  that  so? 

A.  Yes,  sir. 

Q.  Do  you  recollect  what  year  that  was? 

A.  I could  not  tell  you  what  year  it  was.  It  must  have  been 
in  the  early  }^ears  of  the  war  — the  commencement. 

Q.  Well,  now,  considering  what  you  know  of  the  stream  there, 
will  you  state  to  the  commissioners  your  judgment  of  this  condi- 
tion of  things?  Leaving  the  work  by  day,  as  you  have  stated  it, 
will  you  state  what  work  could  be  depended  upon  to  be  done  by 
that  stream  at  night.  (And  Gen.  Butler  in  this  case,  I mean 
“ could  be,”  and  not  “ was.”( 

Mr.  Butler.  Well,  I doubt  somewhat  whether  there  is  any 
purpose  in  that.  I doubt  very  much  whether  anybody  is  an  expert 
as  to  what  can  be  done  by  running  nights  as  compared  with  run- 
ning by  da}T,  because  I doubt  whether  there  is  sufficient  work  done 
in  the  night  as  a rule  to  make  a series  of  observations  from.  In 
1862  3'ou  could  do  all  there  was  to  be  done  with  water-power,  but 
that  was  an  exceptional  year.  You  are  putting  in  a judgment 
from  the  exception.  All  the  experience  he  had  was  not  experience 


William  H.  Carter. 


215 


under  the  rule  but  under  the  exception,  because  the  rule  was,  not 
to  run  by  night.  Very  few  people  run  by  night. 

Mr.  Hodges.  That  might  touch  the  value  of  the  testimony. 

Mr.  Butler.  It  touches  the  qualification  of  the  expert  — his 
opportunity  to  make  the  test.  It  would  be  like  this : a man  has 
seen  in  an  exceptional  time  a certain  thing  done,  and  he  is  asked 
to  judge  from  that  what  could  be  done  as  a rule. 

Mr.  Hodges.  We  claim  that  we  are  entitled  to  recover  the 
value  of  that  power  taken  away  from  us.  That  value  is  to  be  as- 
certained by  ascertaining  what  it  can  do.  We  ascertain  what  it 
can  do  by  seeing  what  it  has  done.  Now  this  witness  was  an  ob- 
server of  that  water  for  twenty  or  thirty  years, — so  much  of  an 
observer,  that  he  directed  its  use.  We,  therefore,  suppose  that  his 
testimony  is  as  good  on  that  subject  as  anybodys  can  be,  and 
with  a view  to  ascertaining  just  what  the  water  can  do,  I submit 
that  we  are  entitled  to  the  testimony. 

Mr.  Butler.  My  objection  is  that  this  is  wholly  a practical 
question.  We  are  not  to  pay  for  what  possibly  might  be  done, 
provided  everything  else  would  permit  that  it  should  be  done. 
But  here  is  a mill,  so  far  as  we  have  got  its  history,  that  from  1844 
to  1876,  in  an  exceptionally  wet  season,  in  an  exceptional  war 
time,  was  able  to  run  one  year  by  night,  because  it  had  a contract 
which  required  it.  Now,  then,  is  that  an  element  of  damage?  Is 
it  not  remote  for  Mr.  Simpson  to  claim  that  the  city  should  pay 
him  for  the  use  of  this  water  by  night,  which  in  thirty-two  years 
had  only  been  used  by  night  one  year,  and  that  because  of  a great 
war  calling  for  so  many  blankets  ? Is  not  that  remote  ? In  other 
words,  should  it  not  be  the  ordinary  use  that  manufacturers  make 
of  power?  If  you  give  full  value  to  this  testimony  you  double  the 
damages,  because  men  could  work  all  night.  But  that  requires 
gaslight ; that  requires  a double  set  of  hands  ; that  requires  extra 
pay  for  the  night  time  ; and  experience  does  not  justify  that.  You 
can  work  but  ten  hours  in  any  twent}r-four  now  ; you  can  work  but 
sixty  hours  a week  with  the  same  set  of  hands.  Does  it  not  all 
come  into  the  region  of  remoteness?  That  is  an  objection  to  the 
testimony.  It  is,  provided  the  witness  had  such  means  of  obser- 
vation as  would  make  him  competent.  Then  we  add  to  that,  in 
having  this  question  put,  the  other  element  of  the  motive,  to  wit : 
That  this  witness  only  in  an  exceptional  year  (it  might  be  a pro- 
vision of  nature  to  furnish  us  with  blankets  during  the  war),  only 
in  an  exceptionally  wet  year,  knows  that  they  ran  that  way,  that 
they  could  run  in  the  night. 

Mr.  Hodges.  He  said  “ one  or  two  years.” 

Mr.  Butler.  That  gave  him  a little  more  observation. 

Mr.  Hodges.  The  three  or  four  years  were  not  exceptional  as 
to  the  flow  of  water. 

Mr.  Butler.  I believe  they  were  quite  exceptional.  One  is 
admitted  to  be,  and  the  other  is  not.  The  rain  tables  will  show. 
At  any  rate,  it  set  us  into  a series  of  inquiries.  I think  that  the 
community  would  not  feel  themselves  justified  in  giving  damages 
for  the  possibility  of  work  by  night,  unless  the  business  which  was 
done  at  the  time  and  at  the  place  required  for  its  profitable  carrying 


216 


Saxonyille  Mills. 


on  the  state  of  working  by  night.  Now,  there  are  some  mills  that 
require  to  be  worked  by  night,  such  as  paper-mills ; to  make 
profitable  business,  a paper  mill  requires  to  be  run  night  and  day. 
That  is  the  way  the  judgment  of  mankind  and  its  skill  in  the  arts 
have  found  it  necessary  to  use  the  water,  prudently  and  skillfully, 
except  in  exceptional  times,  when  driven  by  a contract  which  re- 
quires for  its  fulfilment  every  possible  exertion.  The  ordinary 
judgment  of  mankind  have  not  yet  found  it  convenient  to  work 
by  night.  They  have  not  found  it  profitable  to  work  by  night. 
And  in  the  present  state  of  the  country  working  by  day  has  now 
made,  in  the  view  of  many  people,  such  an  over-production  of 
goods  that  they  cannot  be  sold.  And,  if  all  our  mills  are  going  to 
start  and  run  by  night,  and  the  City  of  Boston  expected  to  pay 
for  the  power  of  the  working  by  night  of  all  our  mills,  I think  a 
wrong  would  be  done.  And  why  I am  a little  anxious  in  insisting 
upon  this  view  of  the  question  is,  that  this  is  a claim  not  set  up 
by  the  people,  nor  by  the  astute  gentlemen  who  represent  the 
Essex  Company,  because  they  have  told  us  that  they  have  to  store 
by  night  in  order  to  use  by  day.  But  it  is  an  experience  and 
judgment  well  known,  that  the  rule  is  that  there  is  no  working  by 
night.  Men  have  not  found  it,  in  the  usual  course  of  their  business, 
either  convenient  or  profitable  to  work  by  night.  And  my  belief 
is,  that  if  the  mills  of  the  country  should  undertake  to  run  in  the 
night  time  their  apparatus  regularly  for  a long  series  of  years, 
that  a sanitary  legislature  would  interfere.  I should  as  a legis- 
lator of  course ; because  I think  there  is  more  necessity  of  having 
a healthy  population  than  there  is  for  over-production  of  cloth, 
when  steam  comes  so  near  water  for  the  cost  of  its  production  to 
ev$ny  one.  You  have  got  to  pay  for  twenty -four  hours’  use  of  all 
the  water  from  the  Dwight  Mills.  If  you  insist  upon  forcing  it  by 
night  as  well  as  by  day  down  to  the  Essex  Company,  they  would 
double  their  already  inflated  damages. 

Mr.  Hodges.  Do  not  all  these  objections  apply  to  the  degree 
of  damage?  If  we  have  to  pay  extra  for  men  to  run  by  night, 
then  that  is  worth  so  much  less  for  horse-power,  but  that  does  not 
make  it  worth  less. 

Likewise,  the  use  of  mills  by  night,  is,  in  many  cases,  necessary 
to  the  mills,  in  time  when  great  production  is  required  ; when  the 
public  exigency  comes  in  and  demands  a supply.  In  paper-mills, 
and  in  certain  iron-mills,  it  is  true  that  there  must  be  work  by 
night  as  well  as  by  day.  Now  all  of  that  touches  the  degree  of 
damage.  We  are  inquiring  what  property  the  city  of  Boston  has 
taken  from  us.  And  while  all  of  us  may  consider  it  that  the  dam- 
ages against  the  city  of  Boston  are  swollen  to  very  large  sums, 
yet  those  are  things  that  the  city  of  Boston  should  have  taken  into 
consideration  when  she  took  the  property.  She  did  not  inquire  of 
us  what  we  would  ask  for  the  property,  or  go  into  an  investigation 
then,  but  she  took  it. 

As  to  the  capabilities  of  this  witness  to  speak,  we  have  got  to 
prove  these  allegations  by  men  that  are  fallible.  But  we  believe 
that  no  man  knows  more  about  this  subject  than  this  witness,  or 
can  know  more  about  it,  unless  it  should  have  been  by  a series  of 


William  H.  Carter. 


217 


expensive  experiments.  Therefore,  we  tender  this  witness  to  say 
what  the  power  could  be  by  night.  What  its  value  was. 

Mr.  Butler.  I suppose  I have  the  close,  and  I will  therefore 
call  another  consideration  to  your  minds,  and  that  is  this  : Would 
not  the  value  then  be  a sum  which  would  ensure  a Government 
contract  which  was  performed  by  it  once  in  thirty  years.  Is  not 
that  the  amount  you  ask  ? 

Commissioner  Russell.  We  think  it  is  competent  to  prove  that 
the  stream  is  one  that  will  run  all  day  and  all  night,  and  not  one 
that  requires  storage  all  the  night,  to  save  water  for  the  day,  be- 
cause we  think  a stream  is  more  valuable  that  will  run  all  day  and 
all  night,  even  if  it  were  to  be  used  only  in  case  of  exigency.  It  is 
worth  more  that  it  is  capable  of  being  used  in  case  of  exigency. 

I suppose  there  are  mills  now  profitably  running  more  than  the 
hours  prescribed  by  the  statute,  and  mills  that  employ  more  than 
one  set  of  hands.  And  that  is  liable  to  be  the  case  at  times  in  any 
species  of  manufacture ; and  we  suppose  a stream  to  be  worth 
more  that  is  capable  of  being  so  used,  than  one  that  is  not.  It 
by  no  means  follows  that  it  is  worth  double,  or  that  it  is  worth 
any  specific  percentage  more  than  if  it  would  run  only  during 
the  hours  of  ordinary  labor. 

Mr.  Butler.  Then,  would  not  the  question  be  as  to  the  ca- 
pacity of  the  witness. 

Commissioner  Russell.  I understand  that  to  be  the  question 
to  which  this  inquiry  is  directed  — as  to  the  competency  of  this 
witness.  It  is  a farther  objection,  it  would  seem,  that  the  wit- 
ness’ knowledge  of  this  stream,  and  of  the  work  done  by  the 
mills,  is  better  knowledge  than  the  commissioner  can  possibly 
have,  and  that  he  is  therefore  competent  to  testify  upon  that 
point. 

Mr.  Butler.  I wish  your  Honor  would  report  this  question. 
We  take  exception  to  the  evidence,  and  shall  struggle  against  the 
report  if  it  shall  be  against  us. 

Q.  Well,  Mr.  Carter,  I will  repeat  the  question  as  near  as  I can  : 
Will  you  state  what  length  of  time,  if  any,  the  mills  at  Saxonville 
could  be  run  by  night  as  well  as  by  day  in  the  average  }mars  back- 
ward over  the  period  of  j^our  acquaintance,  supposing  them 
to  run  by  day  by  water  only ; how  much  will  they  run  by  night? 

A.  As  we  never  kept  any  gauge,  I have  no  other  means  of 
coming  at  that,  except  the  experience  I had  during  the  three 
years  in  which  we  ran  night  and  day ; and  one  of  those  years, 
perhaps,  was  more  wet  in  the  summer  than  usual.  But  I should 
say  we  could  run  that  whole  machinery  nights,  tn  addition  to  run- 
ning it  all  by  water  days,  at  least  five  to  six  months.  I should  say 
five  months  would  be  perfectly  safe  at  least,  as  almost  always 
water  was  running  over  the  dam  largely  in  the  morning,  when  we 
were  running  entirely  by  water  during  the  day,  and  it  could  have 
been  used  during  the  night  just  as  well.  And  if  it  had  been  kept 
back,  why  of  course  we  could  have  used  more  machinery  in  the 
day-time  to  draw  it  down  and  save  it,  if  we  only  ran  in  the  day. 

Q.  'Faking  the  fact  that  you  could  run  the  whole  machinery  by 
night,  having  already  run  it  by  day  for.  five  months  in  the  year, 


218 


Saxonville  Mills. 


could  you  run  any  of  it  in  any  other  months  in  the  year  beyond  the 
five  months,  and,  if  any,  what? 

A.  Yes,  sir ; we  could  run,  probably,  one  of  the  mills  part  of 
the  other  months.  I should  say  we  could  have  run  half  of  the 
machinery  at  least  two  months  more. 

Q.  Couldn’t  you  run  the  big  mill  two  months  more? 

A.  Possibly.  That  is  a matter,  of  course,  that  it  is  impossible 
to  tell  exactty  about ; but,  judging  from  the  natural  running  of 
the  mills,  I should  think  it  would  be  somewhere  in  that  vicinity. 

Q.  Well,  then,  could  not  you  run  the  smaller  mill  or  mills  some 
of  the  time  in  the  night? 

A.  Well,  the  natural  course  would  be,  that  as  we  failed  to  have 
water  to  run  the  larger  mill  nights,  we  should  put  that  on,  with 
the  knowledge  that  we  took  the  other  off,  and  run  by  water  as  much 
as  we  could  on  No.  2.  mill.  Perhaps  we  might  run  that  in  addition 
possibly  a month  or  two.  I know,  on  talking  the  matter  over  the 
time  that  we  ran  nights,  we  seemed  to  think  that  we  ran  just  about 
as  much  and  for  as  long  a time,  as  if  we  did  not  run  nights.  When 
we  did  not  use  the  water,  it  ran  over  and  wras  wasted.  The  storage 
capacity  was  not  very  large.  When  it  did  not  run  over  in  the 
night,  we  felt  that  we  had  got  to  change  into  steam  in  a very  short 
tim$,  — in  a day  or  two. 

Q.  How  long  could  you  run  on  the  water  that  you  could  store? 

Mr.  Butler.  That  is  to  say,  suppose  the  supply  had  been  cut 
off. 

Mr.  Hodges.  I meant,  particularly,  that  suppose  you  have  run 
the  water  down  as  low  as  would  run  the  machinery.  Then  you 
shut  down  the  gates  and  held  the  water  back  until  it  ran  over  the 
dam,  and  then  apply  it. 

Q.  Then  how  long  would  what  you  kept  back  run  the  mills? 

A.  If  1 understand  the  question,  it  is,  that  suppose  the  supply 
is  entirely  cut  off,  and  the  ponds  were  all  full,  how  long  could  that 
run  the  mill? 

Q.  Yes,  sir. 

A.  Well,  the  storage  capacity  was  not  large.  The  dam  at  the 
grist-mill  probably  held  the  flowage  over  which  we  flowed  there, 
— would  hold  three  times  as  much  water  as  the  dam  below.  Tak- 
ing the  dam  below,  between  the  mill  and  the  grist-mill,  I don’t 
think  we  could  run  our  mills  over  half  a day,  with  the  storage- 
water  between  the  two  dams. 

Q.  Could  you,  with  the  storage  of  both  the  dams,  run  for  a 
day? 

A.  Yes,  sir,  we  could.  I should  say,  if  we  had  not  an}r  water, 
we  could  run  more  than  a day  with  the  storage  of  the  two  dams. 

Q Well,  now,  turn  your  attention  to  another  subject.  Can  you 
give  us  the  cost  of  constructing  that  dam,  — for  the  wheel-pits 
and  everything? 

A.  I could  not.  No,  sir. 

Q.  Can  3^ou  give  us  the  dimensions  of  the  wheel? 

A.  I could  not. 

Q.  You  don’t  recall  the  dimensions  of  *the  one  put  in  while  you 
were  there? 


William  H.  Carter. 


219 


A.  I think  the  wheel  put  in  while  I was  there  in  No.  3,  was  5 
or  5L  feet,  worn  well. 

Mr.  Butler.  We  have  it  at  5. 

Mr.  Hodges.  Yes,  sir.  [After  consulting  notes.]  The  Warren 
wheel  is  in  No.  2,  but  the  Boyden  wheel  in  No.  1 ; and  then  there 
is  a smaller  wheel  for  the  shop. 

Mr.  Butler.  The  Warren  wheels  are  in  2 and  5,  and  then  there 
is  a small  wheel  for  the  shop. 

Q.  Are  you  sufficiently  familiar  with  the  costs  of  water  mech- 
anism to  tell  us  the  expense  of  a Boyden  wheel  seven  feet  in 
diameter? 

A.  I could  not  tell,  sir.  It  depends  a great  deal  upon  what 
expense  is  laid  out  on  flumes,  and  preparation  and  putting  in  — 
whether  it  is  a wooden-flume  or  an  iron-flume.  Persons  who  have 
had  that  experience,  and  gone  through  with  that,  might  tell  you. 
I could  not  tell  you.  No,  sir. 

Cross-Examination . 

Q.  (By  Mr.  Butler.)  During  the  five  months  when  you  think 
the  water  could  have  been  used  night  and  day,  you  would  still 
have  a surplus  would  you  not  ? 

A.  Yes,  sir.  It  would  run  over  the  dam  a good  deal  then  when 
we  were  running. 

Q.  Did  you  drive  all  your  machinery  during  those  years  of 
which  you  have  spoken,  — when  you  ran  night  and  day,  — to  its 
utmost  capacitj"? 

A.  All  the  blanket  machinery  was  driven. 

Q.  That  was  the  large  bulk  I suppose  — the  bulk  of  your  ma- 
chinery there  at  that  time? 

A.  Yes,  sir ; taking  the  finishing  department  and  all  the  ma- 
chinery connected. 

Direct  Examination  resumed. 

Mr.  Hodges.  I have  forgotten  one  branch  of  my  inquiry,  and 
perhaps  I had  better  take  it  up  now,  — with  the  consent  of  the 
gentleman  on  the  other  side. 

Mr.  Butler.  Yes,  sir. 

Q.  (By  Mr.  Hodges.)  What  is  the  relative  amount  of  ma- 
chinery in  the  mills,  as  they  were  run  in  1864,  when  you  left,  and 
as  they  had  been  then  running,  for  some  three  years  we  will  say, 
with  that  in  the  mills  in  1844,  — in  view  of  the  amount  of  power 
required  for  running? 

A.  Well,  do  you  mean  to  ask  whether  there  was  more  machin- 
ery in  1864  than  there  was  in  1844,  or  whether  there  is  more  now 
than  in  1864? 

Q.  I mean  whether  there  was  more  in  1864  than  in  1844,  i.  e., 
whether  it  required  more  power  ? 

A.  I think  it  did  in  1864. 

Q.  How  much  more? 

A.  Well,  I should  judge  from  25  to  40  horse-power. 


220 


Saxonville  Mills. 


Q.  Then  turning  from  1864  to  the  present  time,  what  is  the  rela- 
tive amount  of  power  required  ? 

A.  Well,  there  is  not  very  much  difference.  One  mill  now  is 
not  running  — No.  3 — which,  1 think,  required  some  50  horse- 
power. No.  3 mill,  which  was  running  in  1864,  has  been  burned 
down,  and  never  rebuilt.  It  required  some  50  horse-power  to  that 
machinery,  and  most  of  it  has  been  put  into  the  other  mills,  and 
there  has  been  some  addition  of  machinery  in  the  other  mills  since 
1864  ; and  taking  the  whole  machinery  that  was  run  in  1864,  and  now, 
I should  sa}'  that  it  might  require  from  20  to  25  horse-power  more 
now  than  it  did  in  1864  to  run  the  machinery  — not  more  than  that, 
and  perhaps  not  anything.  Of  course  there  was  some  of  the  ma- 
chinery that  was  in  No.  3 that  has  never  been  replaced  — one  burr- 
picker,  certainly,  and  two  rag-pickers.  But  then  there  has  been 
some  machine^  put  in  — I think  one  or  two  spinning-frames  and 
some  twisters,  and  a bobbin-winder  — some  small  matters  that 
were  not  in  at  the  time  I left  there. 

Q.  So  the  power  would  not  be  materially  changed,  if  anything. 

A.  I should  say  that  it  took  a little  more  power  now  than  it  did 
then  to  drive. 

Q.  Has  the  dam  been  raised  since  1864? 

A.  Yes,  sir. 

Q.  Do  you  know  when  it  was  raised? 

A.  Well,  I could  not  tell  you  ; but  it  is  since  I left  there.  Just 
the  year  I don’t  know.  I know  it  has  been  raised. 

Q.  Do  you  know  how  much  ? 

A.  Well,  I have  been  told  that  it  was  four  feet.  Upon  looking 
at  it,  it  seems  to  be  about  that. 

Q.  Would  the  four  feet  of  dam,  thus  raised,  give  a power  equal 
to  carrying  the  increased  machinery,  or  more  than  that? 

A.  Well,  I should  think  it  would  — a good  deal  more  ; though 
engineers  would  know  better  about  that,  judging  from  the  propor- 
tion of  power. 

Mr.  Hodges.  That  was  the  subject  I had  omitted  to  examine 
him  upon.  I will  now  hand  the  witness  over  to  you,  Gen.  Butler. 

Cross-Examination  resumed. 

Q.  (By  Mr.  Butler).  When  was  the  grist-mill  dam  given  up? 

A.  I think  at  the  time  that  the  dam  was  raised. 

Q.  How  high  did  the  grist-mill  flow?  What  was  the  head  of 
water  raised  by  the  grist-mill  ? 

A.  I think  about  six  or  seven  feet  that  we  had  of  fall  there. 

Q.  Then,  when  the  grist-mill  dam  was  given  up,  you  should  have 
the  storage  capacity  of  that  dam  lost,  except  as  it  was  supplied  by 
the  raising  of  the  dam  below. 

A.  Well,  that  dam,  I think,  has  never  been  given  up. 

Q.  It  never  has  been  used  as  a reservoir  — has  it? 

A.  Yes,  sir ; it  is  used  the  same  now  as  a reservoir  that  it  has 
been. 

Mr.  Hodges.  We  use  that  grist  mill-dam  just  the  same  as 


William  H.  Carter. 


221 


always,  only  that  we  have  set  back  the  water  four  feet.  We  have 
lowered  its  fall,  but  not  changed  the  height  of  it. 

Q.  There  was  a saw-mill  where  the  grist-mill  was  ? 

A.  There  was  a saw-mill  and  a grist-mill  both. 

Q.  Owned  by  the  Saxonville  Company? 

A.  Yes,  sir. 

Q.  Then  at  one  time  the  use  of  them  was  given  up  — when  they 
burned  down. 

A.  They  burned  down  and  were  never  rebuilt. 

Q.  You  think  that  upon  the  whole  the  capacity  of  the  works,  so 
far  as  requiring  power,  was  about  the  same  before  as  it  is  now,  or 
perhaps  a little  increased. 

A.  The  only  change  that  there  has  been  is  the  raising  of  that 
dam. 

Q.  I mean  capacity  of  the  works  for  using  up  power. 

A.  Yes,  sir,  I should  say  that  the  capacity  of  the  works  for 
using  up  power  had  been  rather  increased  than  diminished  on 
No.  2. 

Q.  The  raising  of  the  dam  would  only  increase  the  power 
according  to  the  increased  storage  capacity,  of  course? 

A.  Yes,  sir  ; and  extra  fall. 

Q.  It  gave  extra  fall,  giving  a more  economical  use  of  the 
water. 

A.  Yes,  sir. 

Q.  Not  increasing  the  amount  of  the  water,  except  in  storage 
capacity.  How  did  you  heat  the-  mills  in  those  days? 

A.  By  steam. 

Q.  Was  that  steam  furnished  from  the  boiler  directily,  for  heat- 
ing, or  was  it  furnished  by  the  exhaust  of  the  engine,  after  the 
steam  had  passed  through  the  engine? 

A.  It  was  furnished  direct  from  the  boiler. 

Q.  With  No.  3 mill,  the  amount  of  heating  space  would  be  a 
little  increased  from  what  it  is  now,  — the  space  necessary  to  be 
heated  ? 

A.  Well,  with  the  additions  that  they  have  made  in  the  mills, 
the  amount  of  heat  necessary  to  warm  up  the  buildings  would  be 
more  now  than  it  was  then. 

Q.  How  much  more? 

A.  Well,  I should  say  that  it  would  be  increased  25  per  cent. 

Q.  Taking  out  No.  3? 

A.  Yes,  sir,  20  to  25  per  cent.,  and  including  No.  4 and 
another  mill  which  has  been  built  since,  and  which  is  heated. 

Q.  Then  we  have  20  to  25  per  cent,  more  steam  required  for 
heating  ? 

A.  I should  think  so,  sir. 

Q . Now,  then,  I suppose  there  was  a record  kept  of  the  amount 
of  coal  consumed  ; was  there  not? 

A.  Well,  not  daily,  only  the  amount  that  we  consumed  during 
the  year.  We  knew  what  we  bought,  at  least  I suppose  so.  The 
coal  was  always  bought  and  paid  for  by  the  treasurer  in  Boston, 
and  we  did  not  have  the  account  of  it  at  the  mill. 

Q.  Somebody  knows  how  much  coal  was  there  ? 


222 


Saxonville  Mills. 


A.  Yes,  sir,  I suppose  so. 

Q.  And  I suppose  it  is  easy  enough  to  ascertain  how  much  coal 
it  would  require  economically  to  run  that  engine  a day  ? 

A.  Yes,  sir. 

Q.  Now  then,  assuming  the  quantity  of  coal  required  to  heat  the 
buildings  now  to  be  20  or  25  per  cent,  more  than  then.  If  we 
could  get  at  to-day  the  amount  that  the  engine  uses  to  make  a 
horse-power,  you  could  tell  how  many  horse-power  you  made  by 
steam,  could  you  not? 

A.  I suppose  so  ; yes,  sir. 

Q.  Then  it  is  in  the  power  of  the  company,  if  they  will,  to  give 
us  those  exact  data,  instead  of  giving  us  your  recollection  for  20 
years,  is  it  not? 

A.  Well,  I should  not  want  to  say  whether  it  was  or  not. 

Q.  Well,  from  your  knowledge  of  the  state  of  business,  must  it 
not  be  so? 

A.  I suppose  they  know  what  coal  they  used  and  paid  for ; but 
how  much  went  for  heating,  and  how  much  for  running  the  engine, 
it  would  be  rather  difficult  to  tell,  because  we  were  using  the  same 
before. 

Q.  But  pardon  me  ; — if  they  did  not  keep  an  account  of  how 
much  was  for  heating  and  how  much  was  for  power,  then  they 
could  not  tell ; but  assuming  that  the  25  per  cent,  more  was  for 
heating  now  than  then  only,  and  finding  out  how  much  coal  they 
use  in  the  whole  now,  and  how  much  is  used  now  for  running  the 
engine,  it  wrould  not  be  very  difficult,  would  it,  to  tell  how  much 
they  used  before  running  the  engine? 

A.  No,  I should  suppose  not. 

Q.  I wish  you  would  give  us  those  data. 

Mr.  Hodges.  You  shall  have  all  that  we  have  got.  But  I am 
afraid  there  was  a little  coal  used  about  some  of  our  books  that 
will  prevent  our  doing  it.  I think  our  books  upon  this  subject 
were  burned  in  the  fire. 

Mr.  Butler.  While  that  fire  was  very  unfortunate  in  some 
matters  and  fortunate  in  others,  the  freight  books  of  the  road 
would  tell  how  much  they  delivered, 

Mr.  Hodges.  Those  will  be  at  your  service  if  you  will  get 
them.  You  shall  have  all  we  have  got. 

Q.  Do  you  think  anything  more  than  the  steady  run  of  No.  3 
mill,  (which  you  think  was  about  50  horse-power,)  could  be 
depended  upon  during  the  three  dry  months. 

A.  Yes,  sir.  I should  think  they  could.  It  was  in  an  extreme 
dry  season  that  we  did  not  have  more  than  water  enough  to  run 
No.  3. 

Q.  I suppose  you  knew  something  about  how  much  water  has 
been  running. 

A.  This  has  been  a dry  season,  and  I should  suppose  the  record 
would  show  that  there  has  been  more  than  50  horse-power, 
judging  from  what  I know  of  the  mill — for  ten  hours  ; because  we 
never  were  short  in  No.  3,  and  ran  No.  2 a good  deal  of  the  time. 

Q.  Do  you  think  it  could  be  depended  upon  for  more  than  8 
to  12  horse  power  steadily,  in  the  dry  seasons,  above  No.  3? 


William  H.  Carter. 


223 


A.  Well  I should  think  it  could. 

Q.  How  much  would  you  set  it,  sir? 

A.  Well  I should  think  there  was  scarce  any  time  in  the  year 
there  but  what  they  could  run  very  near  a 100  horse-power, 
during  the  three  months. 

Q.  All  of  the  time? 

A.  Yes,  sir.  There  might  be  some  months  that  we  could  not 
run  100  horse-power ; but  other  years  we  could  run  a good  deal 
more. 

Q.  Now  I suppose,  as  you  have  told  us,  when  you  had  an 
exceptionally  wet  time  in  the  sumner,  you  had  power  running  to 
waste,  — ever  when  you  were  using  all  that  you  wanted. 

A.  Yes,  sir,  very  often.  If  we  had  very  heavy  rains,  water  was 
running  over  the  dams  all  the  day  when  all  our  mills  were  running  ; 
running  over  at  night,  and  running  over  in  the  middle  of  the 
day ; and  of  course  all  we  used  through  the  wheels  through  the 
day,  during  the  night,  would  be  extra,  and  running  over. 

Q.  (By  Mr.  Abbott.)  I want  to  get  from  your  No.  3,  while 
you  worked  there,  about  how  many  horse-power  you  used,  I mean 
that  you  had  all  the  time  during  the  dry  season.  That  was  the 
mill  you  used  entirely  by  water-power,  as  I understand  it. 

A.  We  had  in  that  mill  I think  about  50  horse-power  and 
machinery,  and  then  we  used  a wrench  box  for  scouring  wool, 
which  I think  we  connected  with  a six  inch  pipe. 

Q.  How  much  horse-power  would  that  be  ? 

A.  I don’t  know  that  I could  tell  you ; but  under  a head  it 
could  be  easily  ascertained  I suppose.  Our  head  was  about 
twenty-two  feet. 

Q.  A six-inch  pipe  under  a twenty-two  feet  head? 

A.  Yes,  sir. 

Q.  Anything  else? 

A.  I don’t  think  of  anything  else.  We  always  of  course  used 
all  the  water  we  wanted  for  rinsing  our  blankets. 

Q.  Taking  all  your  water,  you  made  an  estimate  that  would  be 
an  approximate  estimate  of  what  you  had  at  the  dryest  times  in 
running  Mill  No.  3,  and  using  all  the  water? 

A.  I should  think  we  were  always  using  in  the  vicinity  of  75 
horse-power. 

Q.  And  were  running  during  that  time  you  were  there,  through 
all  the  dry  seasons? 

A.  Yes,  sir,  that  would  include  the  dryest  seasons.  We  were 
very  seldom  reduced  as  low  as  that. 

Mr.  Abbott.  That  is  all  the  question  I wanted  to  put. 

Mr.  Butler.  Hereafter  when  }T>u  want  to  put  in  any  question, 
I wish  you  would  do  it  in  the  examination  in  chief,  before  I cross- 
examine.  I don’t  think  I care  to  ask  Mr.  Carter  any  further 
questions. 

Recess  till  1^  o’clock,  P.  M, 


224 


Saxonville  Mills. 


AFTERNOON  SESSION. 

Emery  Hill,  sworn. 

Q.  (By  Mr.  Hodge.)  Mr.  Hill,  what  is  your  name? 

A.  Emery  Hill. 

Q.  What  is  your  residence  ? 

A.  Saxonville. 

Q.  And  occupation? 

A.  Machinist. 

Q.  What  is  }^our  duty  in  the  Saxonville  mills? 

A.  I have  charge  of  the  machinery  throughout  the  mills. 

Q.  How  long  have  you  been  there  ? 

A.  I have  been  there  since  — I could  not  tell  you  what  date  it 
was,  but  it  was  the  Saturday  after  the  4th  of  July,  1843,  I came 
from  Manchester. 

Q.  Have  jtou  been  there  ever  since,  or,  if  not,  what  vacations 
have  you  had  ? 

A.  Well,  I have  had  one  of  seven  or  eight  months,  and  another 
one  from,  I think,  about  January  to  October. 

Q.  Other  than  that  you  have  been  there  the  whole  time  ? 

A.  Yes,  sir. 

Q.  Have  you  heard  the  testimony  of  Mr.  Carter  concerning  the 
putting  in  of  engines  and  the  water-wheels  in  the  mill  ? 

A.  Yes,  sir. 

Q.  Do  you  sustain  it,  or  would  you  correct  it  in  any  way?  I 
allude  to  the  times  when  the  engines  were  put  in  and  when  the 
water-wheels  were  put  in. 

Mr.  Butler.  I object.  Ask  him  when  they  were  put  in. 

Q.  (By  Mr.  Hodges.)  When  you  came  there,  what  was  the 
power  the  mill  was  run  by  ? 

A.  Water. 

Q.  How  brought  into  action  — by  what  wheels  ? 

A.  By  three  breast- wheels,  one  in  each  mill,  No.  1,  No.  2, 
and  No.  3. 

Q.  When  was  an  engine  put  in  there? 

A*  Well,  sir,  I could  not  tell  you  exactty,  but  I think  it  was  put 
in  there  — well,  it  was  soon  after  I came  there ; I think  it  was  put 
in  about  1844. 

Q.  About  1844? 

A.  I think  so. 

Q.  Have  you  any  recollection  of  the  state  of  the  water  preceding 
that  engine  being  put  in  ? 

A.  Well,  sir,  I know  that  we  stopped  ; I don’t  recollect  whether 
all  or  part,  but  I think  it  was  No.  1 mill  we  stopped  that  season. 
I came  from  Manchester  nearly  a fortnight  before. 

Q.  Relatively  to  times  since  then,  was  that  a dry  season? 

A.  Yes,  sir  ; a dry  season.  I think  the  next  season  we  didn’t 
stop  at  all. 

Q.  And  after  that,  the  following  season,  the  engine  was  put  in  ? 


Emeky  Hill. 


225 


A.  Yes,  sir  ; I think  so. 

Q.  When  were  the  turbine  wheels  put  in  ? 

A.  Well,  that  is  what  I could  not  say  distinctly,  but  I should 
say  in  the  neighborhood  of  1847  or  1848,  somewheres  along  there  ; 
I could  not  distinctly  assert. 

Q.  Relatively  to  the  present  time,  what  power  would  the  ma- 
chinery of  the  mill  require  during  the  war ; or,  stated  in  another 
form,  what  power  would  the  machinery  you  used  during  the  war 
require  relatively  to  that  required  by  the  machinery  now  in  use? 
Do  you  need  more  power  now  than  3rou  did  then? 

A.  Yes,  sir ; we  do.  I should  judge,  well,  perhaps  50  horse- 
power. 

Q.  50  horse-power  now  more  than  you  required  during  the  war? 

A.  I should  say  so. 

Q.  By  reason  of  introducing  new  machinery? 

A.  Yes,  sir. 

Q.  Or  speeding  old  machinery,  or  both  ? 

A.  Well,  both.  We  speeded  up  all  round,  and  added  new. 

Q.  Can  you  recall  when  the  dam  was  increased  in  height  ? 

A.  I could  not. 

Q.  Was  it  since  the  war? 

A.  Yes,  sir. 

Q.  Since  the  burning  of  the  old  grist-mill? 

A.  No,  sir  ; I think  it  was  before.  It  seems  to  me  it  was  ; I 
will  not  be  certain  about  it. 

Q.  Since  the  burning  of  mill  No.  3 ? 

A.  Yes,  sir. 

Q.  And  after  Mr.  Carter  left? 

A.  Yes,  sir  ; after  Mr.  Carter  left. 

Q.  Reverting  to  the  machinery,  did  you  aid  Mr.  Webber — 
direct  him  to  the  machinery  to  be  measured  ? 

A.  I did. 

Q.  He  was  there,  and  you  have  heard  his  testimony  this  morn- 
ing? 

A . Yes,  sir. 

Q.  Now  I want  to  call  your  attention,  while  in  that  connection, 
to  some  machinery  which  I supposed  to  exist  in  the  basement  of 
No.  4.  Did  Mr.  Webber  take  the  measure  of  that  machinery? 

A.  I don’t  think  that  he  did.  I think  I went  down  below  with 
him  and  showed  him  what  there  was,  but  I don’t  think  he  took 
that. 

Q.  What  does  it  consist  of? 

A.  It  consists  of  two  worsted-washing  machines,  two  extractors, 
a pump  and  wool-washing  machine,  — a large  one,  Sargent’s. 

Q.  Mr.  Hill,  in  the  time  you  have  been  there,  wi11  a ou  say  how 
much  of  the  year,  upon  an  average,  you  hav^-^r^your  mills  by 
water,  so  far  as  day-work  is  concerned? 

A.  Well,  I can  say  between  eight  and  nine  months. 

Q.  After  that,  after  the  eight  or  nine  months,  how  much  of  the 
time,  if  any,  have  you  run  the  lesser  mills,  one  or  more  of  them, 
No.  2 and  No.  3. 


226 


Saxonville  Mills. 


A.  Well,  No.  3 was  generally  run  all  the  time,  and  the  machine- 
shop,  as  a general  thing  ; that  is  15-horse. 

Q.  15  horse-power  for  the  machine  shop? 

A.  Yes,  sir. 

Q.  Well,  how  much  of  the  time,  if  any,  after  the  nine  or  eight 
and  a half  months,  did  you  run  mill  No.  2 ? 

A.  Well,  I could  not  say  exactly,  of  course.  It  would  depend 
upon  whether  it  was  wet  or  dry. 

Q.  That  we  all  understand.  But  I now  refer  to  the  thirty  odd 
years  you  have  been  there,  to  get  the  best  of  your  judgment? 

A.  Well,  as  a general  thing,  we  put  on  No.  2 and  No.  3 to  run 
most  of  the  time. 

Q.  No.  3,  as  I understand,  wasn’t  connected  with  any  steam- 
engine  until  Mr.  Carter’s  time  ? 

A.  Not  till  we  put  in  No.  3 wheel.  That  is,  we  put  in  the  tur- 
bine wheel  and  took  out  the  old  breast. 

Q.  (By  Mr.  Butler.)  When  was  that? 

A.  Well,  it  is  since  Mr.  Carter  left.  I don’t  know  that  I can 
tell  you  exactly. 

Q.  (By  Mr.  Hodges.)  Since  Mr.  Carter  left? 

A.  No,  it  was  when  Mr.  Carter  was  there ; it  was  during  the 
war.  It  might  have  been  1862,  — somewheres  along  there,  — I 
could  not  tell  you  exactly  when  it  was. 

Q.  Can  you  give  the  dimensions  of  these  wheels  ? 

A.  I think  No.  3 is  a five-foot  wheel,  twelve-inch  depth  of 
bucket. 

Q.  (By  Mr.  Butler.)  No.  3? 

A.  No.  3 ; yes,  sir  ; I think  it  is. 

Q. ' The  one  not  in  use  now  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Hodges.)  It  is  not  in  use  now? 

A.  No,  sir. 

Q.  (By  Commissioner  Russell.)  Whose  make? 

A.  Warren’s. 

Q.  (By  Mr.  Hodges.)  Can  you  give  the  dimensions  of  No.  2? 

A.  No.  2 is,  I think,  five  and  one-half  foot,  twelve-inch  depth 
of  bucket. 

Q.  (By  Commissioner  Russell.)  Whose  wheel? 

A.  Warren’s. 

Q.  (By  Mr.  Hodges.)  Centre-bent? 

A.  Yes,  sir. 

Q.  No.  1 ? 

A.  No.  1 is  Boyden’s ; that  is  seven  feet  in  diameter,  and  I 

think  it  is  nine  or  twelve ; I will  not  be  certain  which. 

Q.  (By  Mr.  Butler.)  You  have  but  one  Boyden  wheel,  have 

you  ? 

A.  Yes,  sir  ; only  one. 

Q.  (By  Commissioner  Russell.)  Nine  or  twelve  inch  depth  of 
bucket  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Hodges.)  Turning,  then,  again  to  the  time  when 


Emery  Hill. 


227 


you  can  use  the  power,  tell  us  what  length  of  time  you  can  use  the 
mills,  and  the  different  mills,  at  night,  having  used  them  in  the 
da}T,  in  the  average  of  years  ? 

A.  That  is  to  say,  spring  and  fall? 

Q.  I mean  all  the  year. 

A.  I understand  what  you  mean. 

Q.  The  average  of  what  you  could  run  ? 

A.  Well,  perhaps  five  or  six  months,  — in  the  neighborhood  of 
that,  perhaps  ; I could  not  say.  I don’t  know  as  we  ever  tried  it 
except  during  the  war,  and  then  we  run  the  blanket  works ; the 
worsted  was  stopped. 

Q.  Having  run  all  your  works  in  the  day,  and  all  your  works  at 
night  five  or  six  months,  then  suppose  you  took  off  mill  No.  2, 
how  long  additional  night-work  could  you  give  to'  No.  1 ? 

A.  How  is  that  ? 

Q.  Having  run  all  your  machinery  at  night  five  or  six  months, 
as  you  have  said  you  probably  might  do,  then  suppose  you  stopped 
running  No.  2 at  night,  how  much  longer  could  you  run  No.  1 ? 

Mr.  Butler.  Night  and  day  you  mean? 

Mr.  Hodges.  Yes,  sir.  All  the  machinery  having  been  run  all 
day? 

A.  That  I could  not  tell  you. 

Q.  You  can  give  some  judgment? 

Mr.  Butler.  Would  not  “ guess  ” be  a better  phrase? 

Mr.  Hodges.  No,  I think  not.  It  is  a good  phrase  in  certain 
places. 

A.  Well,  perhaps  six  weeks  or  two  months. 

Q.  In  the  meantime,  how  about  No.  3,  when  that  was  in  ex- 
istence ? 

A.  Well,  that  run  all  the  time  by  water. 

Q.  Precisely  ; and  I mean  — we  are  now  talking  of  night-work 
— could  you  run  No.  3 all  along  on  night  work? 

A.  Yes,  sir. 

Q.  Mr.  Hill,  do  you  know  the  cost  of  those  wheels? 

*1.  I think  No.  3 wheel  cost  $1,500;  that  is,  the  wheel  itself 
and  the  jack  and  pulley,  the  regulator  that  constitutes  the  wheel 
part. 

Mr.  Butler.  We  don’t  take  the  wheel. 

Mr.  Hodges.  I know  that ; nor  the  dam ; but  you  render  it 
useless. 

Mr.  Butler.  It  has  got  to  be  there  during  six  months  of  the 
year  anyhow.  For  the  purpose  of  argument  I will  admit  that  the 
wheel  cost  $150,000. 

Mr.  Hodges.  We  will  accept  that  and  not  ask  the  witness 
another  question. 

Mr.  Butler.  Because  it  would  cost  then  so  much  more  to  make 
water-power  as  compared  with  steam. 

Q.  (By  Mr.  Hodges.)  You  have  said  that  there  were  forty  or 
fifty  horse-power  more  now  used  ? 

Mr.  Butler.  He  said  the  fifty  without  the  forty. 

Mr.  Hodges.  Fifty  horse-power.  For  the  purpose  of  argu- 
ment I will  admit  that  in  view  of  the  $150,000  which  you  made  it. 


228 


Saxonville  Mills. 


Q.  When  did  you  take  possession,  as  superintendent,  of  the 
machine-shop  ? 

A.  About  the  first  of  October.  I think  it  was  about  1853. 

Q.  Eighteen  hundred  and  fifty-three  ? 

A.  I think  so. 

Q.  And  you  think  it  takes  about  fifteen  horse-power  for  the 
machine-shop  ? 

A.  Yes,  sir. 

Q.  Did  Mr.  Webber  take  any  measurement  of  the  power  there? 

A.  Well,  I told  him  what  it  took;  I don’t  know  whether  he 
took  it  or  not. 

Mr.  Hodges.  It  is  not  entered  in  the  estimate  that  we  have 
here. 

Mr.  Butler.  I cannot  object  to  your  showing  as  man}5,  inaccu- 
racies as  you  choose  ; I think  you  had  better  let  him  alone.  He 
found  exactly  how  much  was  running  and  how  much  power  you 
had 


Cross-examined. 

Q.  (By  Mr.  Butler.)  Mr.  Witness,  do  you  have  charge  of 
the  engine  at  all,  — have  general  oversight  of  that  ? 

A.  Yes,  sir. 

Q.  Have  you  ever  kept  an  account  of  how  much  coal  that  engine 
' consumes? 

A.  No,  sir  ; not  till,  I think,  about  1872  ; since  that  we  have. 
Q.  Since  1872? 

A.  I think  so. 

Q.  What  do  you  think  of  the  heating  requirements  of  your  mill, 
more  or  less  than  in  1864,  when  you  had  the  mill  No.  3 ; I mean 
that  portion  of  the  mill  that  is  heated  by  steam  ? 

A.  You  want  to  know  whether  it  takes  more  to  heat  now  than 
then? 

Q Yes. 

A.  Well,  I should  say  it  took  a little  more. 

Q.  You  take  the  heat  directly  from  the  boiler  and  not  from  the 
exhaust  ? 

A.  Yes,  sir,  from  the  boiler. 

Q.  Any  means  of  telling  how  much  coal  is  used  by  the  year  ? 

A.  For  the  year? 

Q.  Yes. 

A.  To  heat  the  whole  concern  ? 

Q.  Yes. 

A.  Yes,  sir. 

Q.  Well? 

A.  The  company’s  books  ; that  is  all  I know. 

Q.  I know  the  company’s  books  will  tell.  You  don’t  keep  them  ? 
A.  No,  sir  ; I don’t  keep  any  account. 

Mr.  Hodges.  To  heat  or  coal  used  ? 

Mr.  Butler.  To  heat. 

Q.  You  understood  me  to  ask  you  to  heat,  didn’t  you? 

A.  Yes,  sir. 


Emery  Hill. 


229 


Q.  And  the  company’s  books,  if  they  will  produce  them,  will 
tell  exactly  how  much  it  took  ? 

A.  No,  sir  ; I am  wrong.  I misunderstood  you,  sir.  No,  sir,  I 
could  not  tell  you. 

Q.  Is  there  any  record  kept  without  your  telling  ? 

A.  No,  sir  ; not  that  I know  of. 

Q.  Is  there  any  record  kept  of  the  amount  of  coal  it  takes  to 
run  the  engine? 

A.  No,  sir ; it  is  all  consumed  in  one  fire. 

Q.  Is  there  any  record  kept  of  the  amount  of  coal  it  takes  to 
run  the  engine  and  the  heating  ? 

A.  Yes,  sir. 

Q.  Is  there  any  record  kept,  and  has  there  been  since  1872,  of 
the  number  of  days  the  engine  has  run  exactly  ? 

A.  I think  there  is  ; the  engineer  keeps  that. 

Mr.  Hodges.  I will  furnish  you  with  a statement  from  the  engi- 
neer, General,  and  we  will  have  the  engineer  here  if  you  want  him. 

Mr.  Butler.  I think  I would  like  to  see  the  engineer,  and  ask 
him  to  bring  his  original  books  ; he  seems  to  be  a very  intelligent 
man. 

Q.  How  do  you  think,  sir,  the  amount  of  machinery  compares 
now  with  the  amount  of  machinery  you  had  in  1843.  For  the 
whole  concern  now  and  the  whole  concern  in  1843,  was  there  a 
quarter  as  much,  half  as  much,  then,  as  now,  or  what? 

A.  Well,  I should  judge  there  might  be  50  horse-power  more. 

Q.  More  now  than  there  was  in  1843  ? 

A . Yes,  sir. 

Q.  You  have  told  us  that  there  was  50  horse-power  more  than 
there  was  in  1843  : didn’t  they  have  any  more  machinery  in  1864, 
after  they  had  been  running  on  their  government  contracts,  than 
they  had  in  1843  ? 

A.  Yes,  sir. 

Q.  How  much  more  did  they  have  in  1864,  than  they  had  in 
1843? 

A.  I could  not  tell  you. 

Q.  About  how  much  ? 

A.  I could  not  say  exactly. 

Q.  Well,  I don’t  suppose  you  said  exactly  when  you  said  50 
horse-power  ? 

A.  No,  sir ; I don’t  suppose  I did. 

Q.  Well,  then,  give  us  the  same  sort  of  an  estimate? 

A.  Please  to  put  that  question  again. 

Q,  Well,  I will  put  another  one  first.  You  run  as  hard  as  you 
could  and  did  all  you  could  during  the  war  when  you  run  day  and 
night  ? : 

A.  We  did  so. 

Q.  Now,  then,  you  run  somehow  or  other  in  1843  ; I don’t  know 
how.  How  much  more  machinery  did  you  have  in  1864,  after  you 
had  gone  through  the  war,  and  after,  than  you  had  in  1843,  twenty 
years  before  the  war  almost.  Did  you  have  half  as  much  as  you 
did  in  1864? 

A.  Half  as  much  more? 


230 


Saxonville  Mills. 


Q.  Yes. 

A.  No,  sir. 

Q.  Did  have  half  as  much  in  1843  as  you  had  in  1864? 

A . Yes,  sir,  we  had  more  than  half  as  much. 

Q.  Well,  how  much  more  ; half  as  much? 

A.  I could  not  say. 

Q.  60  per  cent,  as  much? 

A.  Well,  we  had  considerable  more,  of  course. 

Q.  What? 

A.  We  had  considerable  more,  of  course. 

Q.  I know  you  had,  and  I want  to  get  the  percentae.g  Had 
you  60  per  cent,  as  much  in  1843  as  you  had  in  1864.  You  think 
you  had  more  than  half? 

A.  Yes,  sir;  of  course. 

Q.  What  was  your  answer  to  the  last  question? 

A.  I said  we  did. 

Q.  Well,  how  much  did  you  have?  Put  it  somewhere,  — 62,  63, 
64,  65  per  cent. ; never  mind  where  you  put  it,  only  let  us  go  on. 

A.  Do  you  want  to  know  if  we  had  60  per  cent,  more  ? is  that 
the  idea? 

Q.  No,  sir.  Had  you  half  as  much  more?  was  the  first  question 
I asked. 

A.  No,  sir. 

Q.  You  hadn’t? 

A.  No,  sir. 

Q.  Had  you  within  40  per  cent,  as  much  machinery  in  1843  as 
you  had  in  1864? 

A.  Well,  sir,  I could  not  tell  you. 

Q.  Very  well,  we  will  leave  it  there.  Now,  then,  how  many 
blankets  did  you  use  to  make  a day  in  1843,  when  you  were  running 
full? 

A.  Well,  sir,  that  is  something  that  don’t  come  under  my  head 
at  all. 

Q.  The  company’s  books,  I presume,  will  show  that  at  the 
mills  ? 

A.  Yes,  sir. 

Q.  Did  you  make  half  as  manj^  as  you  did  in  1862,  63,  and  64, 
during  the  war  ? 

A.  That  is  what  I could  not  say. 

Q.  Well,  in  your  judgment?  You  were  there  and  saw  the 
works. 

A.  Well,  I should  think  we  made  half  as  many  more. 

Q.  When  — in  1864  as  you  did  in  1843  ? 

A.  Yes,  sir. 

Q.  That  is,  suppose  you  made  100  blankets  a day  in  1843,  you 
think  you  made  150  in  1864  only — is  that  what  you  mean? 

A.  Yes,  sir. 

Q.  Well,  you  didn’t  speed  up  so  very  much,  did  you,  and 
didn’t  get  so  very  much  more  machinery  in  that  case? 

Mr.  Hodges.  They  worked  all  night,  General. 

A.  We  speeded  up  and  worked  nights. 

Q.  You  speeded  up  and  run  nights,  and  speeding  up  and  run- 


Emery  Hill. 


231 


nino-  all  night  you  didn’t  make  only  half  as  many  more  blankets  in 
1864  as  you  did  in  1843  ? 

A.  Well,  when  we  run  nights  we  made  as  many  again. 

Q.  You  made  as  many  again  when  you  run  nights  ? 

A.  Yes,  sir. 

Q.  Now  take  a day’s  work.  You  worked  only  daytimes  in 
1843? 

A.  That  is  all. 

Q.  And  except  when  on  this  war-contract,  you  never  did  work 
nights,  did  you? 

A.  I presume  they  might ; not  much,  not  as  a general  thing. 

Q.  You  might  have  worked  some  nights  upon  occasional 
repairs  or  otherwise,  but  I mean  to  run  the  mill  regularly  at 
nights  ? 

A.  No,  sir.  * 

Q.  Now,  then,  how  many  more  blankets  do  you  think  you  made 
in  1864,  in  a day’s  work,  than  you  did  in  1843,  in  a day’s  work? 

A.  Well,  I presume  we  made  twice  as  many. 

Q.  Now,  then,  isn’t  the  blanket  machinery  much  the  heaviest 
portion  of  your  machinery  ? 

A.  Yes,  sir. 

Q.  Throw  off  all  the  manufacturing  machinery  and  run  your 
blanket  machinery  alone,  what  proportion  of  power  would  you  be 
using  ? 

A.  Well,  sir,  I think  we  might  be  using  something  over  two- 
thirds. 

Q.  Something  over  67  per  cent.,  then? 

Q.  (By  Commissioner  Russell.)  You  mean  for  blankets? 

A.  Yes,  sir,  for  blankets. 

Q.  (By  Mr.  Butler.)  Throwing  off  the  rest  of  the  machinery 
and  using  the  machinery  necessary  to  run  your  blanket- works  fully 
and  thoroughly,  you  would  be  using  something  over  two-thirds? 
How  much  over  two-thirds  — 75  per  cent.  ? 

A.  Well,  I could  not  say  exactly. 

Q.  That  is  to  say,  the  blanket-works  are  by  far  the  heaviest 
works,  and  there  is  the  most  machinery  in  them  ? 

A.  Yes,  sir. 

Q.  That  is  what  I desire.  Now,  sir,  I suppose  your  machinery 
is  graduated  so  that  your  spinning  corresponds  with  your  weaving, 
your  weaving  to  your  finishing,  and  your  carding  to  the  spinning ; 
isn’t  that  so  ? 

A.  Yes,  sir. 

Q.  And  it  would  neither  be  profitable  nor  proper,  in  canying 
on  your  manufacturing,  to  card  twice  as  much  in  a day,  if  you 
were  running  everything  full,  as  you  could  spin,  or  spin  twice  as 
much  as  you  could  weave,  or  weave  twice  as  much  as  you  could 
finish,  would  it? 

A.  No,  sir. 

Q.  What  was  in  No.  3 mill,  — what  sort  of  machinery  had  you 
there  ? 

A.  Well,  we  had  two  sets  of  cards — two  or  three,  I don’t 
recollect  which. 


232 


Saxon yille  Mills. 


Q.  How  many  sets  of  cards  had  yon  in  all? 

A.  Well,  there  are  ten  sets  in  No.  2. 

Q.  How  many  sets  in  No.  2 ? * 

A.  Ten,  I think. 

Q.  Any  anywheres  else? 

A.  Yes,  sir.  In  No.  1. 

Q.  How  many  sets  there  ? 

A.  I could  not  tell  you  just  how  many  sets  there  are. 

Q.  If  you  were  so-  driven  with  work  that  you  wanted  to  do  all 
you  could,  it  would  do  no  good  to  run  No.  3 any  longer  than  it 
would  to  run  the  other  mills,  would  it? 

A.  Only  in  case  we  got  out  of  wool ; the  pickers  were  in 
No.  3. 

Q.  I understand  No.  3.  Well,  if  you  were  out  of  wool  you 
would  not  run  the  pickers  at  all  ? 

A.  Out  of  wool  for  the  cards  I mean  in  the  other  mills. 

Q,  Out  of  wool  for  the  particular  manufacture  that  was  being 
carded  for  in  that  mill  ? 

A.  Yes,  sir. 

Q.  I am  upon  this  point,  sir.  Your  machinery  being  graduated 
with  each  other,  it  must  all  go  together  somehow  ? 

A.  Yes,  sir. 

Q.  Therefore  it  would  do  no  good  to  have  power  to  operate  one 
mill,  when  you  could  have  power  to  operate  all  the  rest,  if  you 
were  running  full : that  is  so,  isn’t  it? 

A.  Yes,  sir. 

Q.  Now,  Mr.  Hill,  how  many  days  did  you  run  by  steam  last 
year? 

A.  Well,  sir,  that  is  a question  I cannot  answer  you. 

Q.  Do  you  ever  run  by  steam  in  the  winter? 

A.  Yes,  sir. 

Q.  When  there  is  water  enough? 

A.  No,  sir ; we  don’t  do  that  when  there  is  water  enough. 

Q.  But  when  ice,  anchor-ice,  and  other  ice,  stops  you? 

A.  Well,  we  may  have  sometimes  put  it  on  ; it  is  very  seldom 
that  anchor-ice  troubles  us. 

Q.  But  the  freezing  up  of  the  streams  troubles. 

A.  It  don’t  trouble  us  much ; it  does  sometimes ; it  gets  a 
heavy  body  of  ice  on. 

Q.  And  then  you  have  to  run  by  steam  in  the  winter? 

A.  Yes,  sir. 

Q.  Well,  now,  Mr.  Hill,  is  not  this  it:  that  for  six  months  in 
the  year  }rou  have  work  enough  more  than  twice  to  run  your  mills, 
and  run  to  waste  at  that.  Take  six  mouths  out  of  the  year,  on  an 
average,  the  spring  and  fall  months,  say  commencing  after  the 
equinoctial  in  September,  and  then  running  on  through  September. 
October,  November  and  December,  according  to  whenever  the 
rains  begin,,  and  January,  and  then  choked  up  by  ice  a little; 
and  thou  the  latter  part  of  January,  February,  March,  April  and 
May,  and  at  the  middle  of  June  — haven’t  you  a surplus  of  water 
so  that  you  can  run  your  mills  night  and  day  and  have  something 
over  the  dam  besides  ? 


Emery  Hill. 


233 


A.  It  may  not  run  over  the  dam  all  the  time  ; it  runs  occasion- 
ally. There  are  “ ups  and  downs,”  you  know. 

Q.  Of  course  there  are  “ ups  and  downs,”  but  is  not  there  sub- 
stantially water  enough  to  run  your  mill  night  and  day,  and  waste 
over  the  dam  besides  ? 

A.  Sometimes  there  is  and  sometimes  there  is  not. 

Q.  I mean  in  those  months  ? 

A.  Not  always. 

Q . As  a rule  ? 

A.  Well,  as  a general  thing,  before  the  Boston  folks  took  the 
water. 

Q.  Yes,  before  the  Boston  folks  took  the  water  it  was  so,  I 
know.  I mean  that,  of  course.  Now,  sir,  have  the  Boston  folks 
took  a spoonful  of  water  to  your  knowledge  during  the  wet  months 
up  to  this  year? 

A.  I could  not  say,  sir,  who  took  the  water. 

Q.  Well,  did  anybody  take  the  water? 

A.  I could  not  swear  that  anybody  did. 

Q.  You  put  in  “ before  the  Boston  folks  took  Ihe  water.  ” I 
didn’t,  you  see. 

A.  I knew  about  the  time,  for  we  felt  it  at  the  mill. 

Q.  You  felt  it? 

A.  Yes,  sir. 

Q.  When  did  you  feel  it ; in  the  wet  months  ? 

A.  I have  kept  no  recollection  or  date  of  these  things. 

Q.  Well,  pardon  me.  You  remember  some  time,  for  you  felt 
it? 

A.  We  felt  it  when  they  drawed  it. 

Q.  Well,  when  did  you  feel  that  they  drawed  it?  You  say  you 
felt  it  there  at  the  mill;  what  January  was  it,  or  December  was 
it,  or  November  or  October? 

A.  I could  not  say,  sir. 

Q.  Was  there  any  October,  November,  December,  January, 
February,  March,  April  or  May,  or  June,  when  you  felt  it? 

A.  Well,  I could  not  tell  you  just  what  months  it  was. 

Q.  I am  talking  about  the  wet  months  now,  and  I asked  you, 
Mr.  Hill,  if  there  was  any  want  of  water  to  run  j^our  mills  night 
and  day  in  the  wet  months,  and  you  said  “ yes  ; ” but  you  didn’t 
know  there  was  before  the  Boston  people  took  the  water.  Now 
that  was  the  way  you  answered  me,  wasn’t  it?  Now  I ask  you  if 
any  wet  months  you  will  swear  to,  or  jrou  will  swear  there  was 
ever  a wet  month  when  you  felt  the  loss  of  water  from  the  Boston 
people  taking  it,  and  if  so,  when  was  it? 

A.  I could  not  swear  to  any  particular  month. 

Q.  Well,  any  particular  winter?  Any  one  set  of  months,  what 
we  call  wet  months  ? 

A.  I could  not  state  to  any  particular  month  now. 

Q.  Well,  any  six  months;  any  wet  six  months?  I am  now 
talking  about  the  wet  months.  I will  admit  it  makes  a difference 
in  the  dry  time. 

A.  We  have  felt  them  taking  it  out ; of  course,  we  knew  some- 
body did  take  it. 


234 


Saxonville  Mills. 


Q.  I don’t  know  whether  you  did  or  did  not.  Do  j~ou  remem- 
ber any  time  when  they  took  the  water,  in  any  October,  any  No- 
vember, any  December,  any  January,  February,  March,  April,  or 
any  May  ? 

A.  Well,  I felt  that  we  had  less  water  then  ; we  generally  have 
a good  deal. 

Q.  In  what  wet  months  of  the  year ; was  it  in  1872  when  they 
began  to  take  ? 

A.  Yes,  sir. 

Q.  It  was? 

A.  Yes,  sir. 

Q.  You  remember  about  that,  do  you? 

A.  Yes,  sir  ; I do. 

Q.  Well,  what  would  you  say  if  it  should  turn  out  that  all  the 
water  they  took  was  from  June  21st,  and  ended  September  16th, 
1872,  and  they  never  took  any  then  for  three  years  ; what  should 
you  say  then? 

A.  Well,  I should  say  that  we  ought  to  have  had  water. 

Q.  When  you  didn’t  get  it? 

A.  Yes,  sir  ; when  we  didn’t  get  it. 

Q.  That  is,  they  ought  to  have  found  you  some  when  they 
didn’t  take  any?  And  you  really  think  now,  do  you,  Mr.  Hill  (I 
have  no  doubt  }rou  honestly  think  so) , that  in  the  winter  time  the 
Boston  taking  injured  you? 

A.  Yes,  sir. 

JRe-direct.. 

Q.  (By  Mr.  Hodges.)  Mr.  Hill,  turn  back  to  the  winter  of 
1876,  the  past  one,  and  to  the  winter  of  1875,  a j^ear  and  a half 
ago,  and  see  whether  you  remember  any  diminution  of  the  water 
in  either  of  those  winters  ? 

A.  I don’t  distinctly  recollect  about  the  winters  m}Tself. 

Q.  Now,  sir,  turn  to  mill  No.  3 : I asked  you  in  the  beginning 
what  the  uses  of  that  mill  were  ? 

A.  Of  No.  3? 

Q.  Yes.  Will  you  now  state  them? 

A.  No.  3 had  in  two  pickers  and  two  sets  of  cards  or  more,  I 
forget  which,  one  jack,  and  three  fulling-stalls,  one  pushing  and 
two  rotary. 

Q.  What  I mean,  sir,  is,  did  that  mill  contain  a train  of  machin- 
ery by  -which  it  took  the  wool  and  carried  it  through  all  the  depart- 
ments of  manufacturing,  or  whether  it  prepared  wool  for  the  uses 
of  the  other  mills  ? 

A.  It  prepared  wool  for  the  uses  of  the  other  mills. 


Samuel  Webber,,  recalled . 

Q.  (B}t  Mr.  Hodges.)  Mr.  Webber,  did  you  measure  the 
pump,  the  extractor,  in  the  basement  of  mill  No.  4? 

A.  I did  not. 


Samuel  Webber. 


235 


Q.  Did  you  measure  anything  in  mill  No.  4? 

A.  I was  not  aware  there  was  a mill  No.  4 ; saw  nothing  what- 
ever. 

Cross-examined . 

Q.  (By  Mr.  Butler.)  That  is  to  say,  you  didn’t  measure  but 
three  mills  ? 

A.  Yes,  sir. 

Q.  You  measured  in  three  different  mills,  didn’t  you? 

A.  Yes,  sir. 

Q.  No.  3 mill  had  been  burnt  some  years.  If  I understand  this 
case,  you  didn’t  measure  in  that  one? 

A.  I measured  no  pump  whatever  ; I am  sure  of  that. 

Q.  Pardon  me.  Did  you  measure  all  of  the  machinery,  from 
bottom  to  top,  that  Mr.  Hill  showed 'you? 

A.  Yes,  sir. 

Q.  And  he  showed  you  all  the  machinery  in  three  buildings 
called  mills  ? 

A.  Well,  I will  not  say  he  showed  me  all  the  machinery  that 
there  was  there.  I know  for  certain  I measured  no  pump. 

Q.  There  were  three  different  buildings  ? 

A.  Yes,  sir. 

Q.  If  he  showed  you  any  machinery  you  estimated  for  it  and 
measured  it,  didn’t  you? 

A.  Yes,  sir. 

Q.  Now  here  is  the  difficulty,  Mr.  Webber.  There  was  once  a 
No.  3 mill,  which  was  burned  long  ago,  so  }tou  didn’t  measure  that. 
There  are  now  standing  three  mills  ; so  far  as  you  know,  did  you 
measure  or  estimate  all  the  machinery  in  the  same  three  mills  that 
there  were  ? 

A.  So  far  as  I know,  I did. 

Q.  And  you  are  sure  you  did  all  that  Mr  Hill  showed  you? 

A.  Yes,  sir. 

Q.  If  you  left  out  any  considerable  amount  of  machinery,  then 
all  the  nice  calculation  between  your  measurement  and  the  amount 
of  power  which  the  engine  was  indicating  would  all  go  for  nothing, 
wouldn’t  it? 

A.  Yes. 

Re-direct. 

Q.  (By  Mr.  Hodges.)  Mr.  Webber,  there  is  a large  mill  there 
with  machinery  in  it  that  is  not  in  operation,  isn’t  there? 

A.  I think  there  is.  There  was  a building  in  which  I was  told 
there  was  nothing  in  operation,  and  which  I did  not  go  into. 

Q.  The  three  mills  that  you  went  into  — mill  No.  1,  where  you 
found  240  horse-power  or  239  odd,  and  mill  No.  2,  where  you 
found  86  or  thereabouts  horse-power.  Mill  No.  2 has  connection 
with  it  another  mill,  has  it  not? 

A.  It  has. 

Q.  And  you  measured  machinery  in  that  mill? 

A.  I did. 


236 


Saxonyille  Mills. 


Q.  And  you  called  it  both  mill  No.  2,  did  you  not? 

A.  Yes,  sir. 

Q.  And  it  is  so  entered  in  your  minutes? 

A.  Yes,  sir. 

Q,  Now,  did  3tou  measure  one  pump,  one  wool-washing  machine, 
two  extractors,  and  two  worsted-yarn  washers  ? 

A.  I did  not. 

Re-cross. 

Q.  (By  Mr.  Butler.)  Why  not? 

A.  I didn’t  see  it. 

Q.  Would  you  have  made  it  if  you  had  seen  it? 

A.  I should. 

Q.  Then  Mr.  Hill  never  showed  it  to  }^ou,  did  he? 

A.  Not  to  my  knowledge.  I have  no  recollection  or  memoran- 
dum of  it  in  any  way. 

Q.  Now,  then,  you  are  acquainted  with  such  machinery  that 
has  been  described  to  you,  are  you  not? 

A.  Somewhat. 

Q.  In  your  judgment,  how  many  horse-power  would  that  take? 

A.  I should  say  two  extractors  would  be  two  horse-power  each, 
that  would  be  four ; wool-washing  machine  would  be  two  more, 
which  would  be  six ; and  the  pump  another,  would  be  seven. 

Q.  (By  Mr.  Hodges.)  How  about  the  worsted-yarn  washers? 

A.  The  worsted-yarn  washers  which  I have  noticed,  I cannot 
conceive  that  they  will  be  of  any  great  horse-power. 

Q.  (By  Mr.  Butler.)  The  two  extractors  would  be  how  many 
horse-power  ? 

A.  Two  each. 

Q.  That  would  be  four.  The  wool-washer? 

A.  I should  allow  about  two  more  for  the  wool-washer ; it  is  a 
machine  of  very  slow  motion. 

Q.  That  would  be  six.  The  pump? 

A.  Not  over  one. 

Q.  That  is  seven.  Two  worsted-yarn  washers? 

A.  Well,  I cannot  imagine  that  two  yarn-washers  would  re- 
quire over  a horse-power  each. 

Mr.  Butler.  That  is  nine. 

Mr.  Hodges.  The  only  difference  I make  between  his  calcula- 
tion and  that  I have  is,  that  I have  it  entered  that  the  two  ex- 
tractors are  2£  each  instead  of  2,  and  the  wool- washer  is  5,  but  we 
will  call  it  9. 

Q.  (By  Mr.  Butler.)  Then  there  is  nine  horse-power? 

A.  Yes,  sir. 

Q.  Now  you  told  us  that  the  indicator  showed  that  just  about 
so  much  horse-power  was  used,  which  you  found  there  was  used. 
Would  it  make  any  difference  to  your  calculation  if  you  had  found 
the  engine  was  carrying  nine  horse-power  more? 

A.  It  would  have  made  no  difference  in  the  calculation. 

Q.  Wouldn’t  you  have  thought  there  was  some  mistake  in  your 
calculations  when  you  came  to  look  at  the  indicator? 


Eliphalet  Watson. 


237 


A.  I don’t  know  that  I should.  There  is  always  a liability  of 
one  or  two  per  cent,  error  in  measurements  in  any  of  these  matters. 

Q.  But  you  have  allowed  so  much  difference  between  the  indica- 
tor and  the  dynamometer.  You  just  allowed  about  so  much  differ- 
ence and  you  found  about  so  much  difference? 

A.  I took  my  measurements  from  my  dynamometer  in  the  first 
place  entirely  and  independently  and  made  it  up,  and  afterwards 
in  order  to  verify  it  I took  the  measurements  of  the  indicator  of 
the  steam-engine,  and  I found  the  difference  ; and  I found  machinery 
enough  standing  still  to  account  for  that  difference. 

Q.  I don’t  remember  at  this  present  moment  how  many  horse- 
power it  is  you  found  ? 

A.  Eleven  horse-power  — eleven  and  a half. 

Q.  Now,  if  the  indicator  was  actually  carrying  9 horse-power 
more,  which  is  almost  double  the  difference,  what  should  you  have 
said  then  — that  you  were  just  as  correct  as  }rou  were  before? 

A.  I should  say  I had  no  change  to  make  in  my  calculation. 

Q.  You  would  have  no  change  to  make  in  your  calculation,  but 
would  you  have  found  your  calculation  verified  by  the  indicator  the 
same  as  before? 

A.  Well,  I don’t  think  myself  that  the  indicator  is  entirely  so 
reliable  a mode  as  the  dynamometer. 

Q.  But  you  went  to  it  for  the  verification  ? 

A.  I went  to  it  for  the  verification. 

Q.  If  you  had  found  the  difference  20  should  you  have  been 
just  as  satisfied  with  your  measurement  as  if  you  had  found  it  11? 

A.  No,  I think  I should  have  been  tempted  to  have  made  some 
further  examination. 

Q.  Well,  now  we  know  that  there  was  9 horse-power  or  more 
running  by  that  indicator  at  that  hour  ? 

A.  Well,  I don’t  know  that  this  machinery  was  in  operation  of 
my  own  knowledge. 

Mr.  Butler.  I know  ; but  it  is  assumed  here  and  put  in  as  in# 
operation,  and  Mr.  Hill  says  he  showed  it  to  you  in  operation 
That  is  all. 

Eliphalet  Watson,  sworn . 

Q.  (By  Mr.  Hodge.)  What  is  your  residence  ? 

A.  Andover. 

Q.  What  is  your  occupation  ? 

A.  Machinist. 

Q.  Do  you  know  the  Saxonville  mills  ? 

A.  I think  I do. 

Q.  When  did  you  first  know  them  ? 

A.  I think  it  was  in  1842. 

Q.  How  long  were  you  acquainted  with  them  — that  is,  how 
long  were  you  there? 

A.  I was  there  nineteen  years. 

Q.  What  was  your  business  there? 

A.  I had  charge  of  the  machine-shop  — all  the  mechanic  work. 

Q.  Was  Mr.  Hill  there  at  the  same  time? 


238 


Saxon yille  Mills. 


A.  Yes,  sir ; be  was  there  at  the  same  time. 

Q.  You  left  there  when,  do  you  think? 

A.  About  1865,  I think  it  was,  when  I left  there.  I was  there 
nineteen  years. 

Q.  What  time  was  it,  relative  to  the  war,  that  you  left? 

A.  I have  no  dates  exactly  to  give  about  that.  It  might  be, 
perhaps,  six  years  before  the  war  — five  or  six,  I won’t  say  certain 
which. 

Q.  But  you  were  there  nineteen  years  ? 

A.  Yes,  sir. 

Q.  And  beginning  in  1842,  that  would  take  you  to  just  before 
the  war  — 1860? 

A.  Yes,  sir. 

Q.  Well,  sir,  at  that  time  were  you  observant  of  the  water? 

A.  I think  I was. 

Q.  Looking  back  over  those  nineteen  years,  tell  us  what  portion 
of  the  year,  taking  one  year  with  another,  you  could  run  the  ma- 
chinery in  the  mills  by  water? 

A.  Well,  when  I was  there,  they  would  generally  throw  off  one 
of  their  mills  about  the  first  of  July,  and  from  that  to  September. 
Then  they  would  commence  running  mostly  by  water.  From  the 
first  of  July  to  the  first  of  September. 

Q.  What  would  they  throw  off  the  first  of  July? 

A.  Well,  they  would  throw  off  what  they  call  No.  1 mill,  and 
No.  2 and  No.  3 during  those  two  months  they  would  run  more  or 
less  by  water  in  both  of  those  mills. 

Q.  But  except  those  two  months,  your  recollection  would  be 
that  all  the  mills  were  run  by  water? 

A.  I should  think  they  were,  sir. 

Q.  And  in  those  two  months  No.  2 and  No.  3 would  run  more 
or  less  during  the  season  ? 

A.  Yes,  sir. 

Q.  What  should  you  say  about  running  the  mills  by  night  when 
you  run  them  by  day?  Did  you  ever  run  them  by  night? 

A.  Oh,  yes  ; they  run  them  considerable  by  night.  When  they 
run  nights  generally  they  run  by  water,  because  there  was  water 
enough.  If  they  had  water  through  the  day,  why  they  would  have 
water  through  the  night. 

Q.  What  should  you  say,  then,  to  their  running  those  mills  by 
night  in  those  times  when  they  run  by  day  ? Could  they  do  it  for 
a substantial  part  of  the  time? 

A.  No,  I should  think  not. 

Q.  Well,  how  many  months  of  the  year  could  they  run  by  night 
and  by  day  both? 

A.  Eight  months. 

Q.  Were  }tou  there  when  they  put  in  the  first  steam-engine? 

A.  Yes,  sir. 

Cr  oss-  exam  ination . 

Q.  (lfy  Mr.  Butler.)  I want  simpty  to  ask  you  this,  Mr.  Wit- 
tess  : what  goods  did  they  make  in  1842-43? 


John  Gibbs. 


239 


A.  They  manufactured  worsted  and  woollen  blankets. 

Q.  Which  the  most? 

A.  Well,  I don’t  know  ; about  equal,  I should  judge.  I should 
think  more  blankets  than  worsted. 

Q.  Do  you  mean  that  the}r  had  more  blanket  machinery  than 
worsted  machinery  ? * 

A.  About  the  same. 

Q.  Before  they  had  any  engine,  what  did  they  use  to  do  when 
the  water  was  short,  and  they  stopped  the  mill ; did  they  discharge 
their  help  ? 

A.  No,  sir. 

Q.  What  did  they  do,  then  ? 

A.  Why,  they  retained  their  help ; they  used  to  keep  their 
help. 

Q.  Pay  them  ? 

A.  They  used  to  pay  their  board,  at  any  rate. 

Q.  They  used  to  pa}r  their  board,  but  not  their  wages? 

A.  I believe  not  their  wages.  I won’t  be  positive  about  that.* 

Q.  What  relation  had  you  to  the  mill  ? 

A.  I had  the  machinery  to  look  after. 

Q.  Do  you  mean  to  say  that  they  paid  all  their  help  while  their 
mills  were  stopped  two  months  ? 

A.  I can’t  say  that  they  did  or  did  not. 

Q.  Do  you  believe  that  they  did  ? 

A.  Oh,  they  paid  their  board. 

Q.  Then  their  books  would  show  exactly  how  long  they  used  to 
be  stopped,  wouldn’t  they,  when  they  had  not  any  engine  to  run, 
because  they  would  show  exactly  how  long  they  paid  their  help? 

A.  I suppose  so. 

Q.  Where  were  the  books  kept  ? 

A.  The  books  were  kept  in  their  counting-room. 

Q.  Has  the  counting-room  unfortunately  ever  burnt  down? 

A.  No,  sir. 

Q.  You  have  never  heard  of  any  loss  of  books  belonging  to  the 
mill,  have  you? 

A.  I have  not ; no,  sir. 

Q.  They  didn’t  move  the  books  down  to  the  Boston  office,  and 
have  them  burned  up  in  the  great  fire,  did  they? 

A.  Not  that  I know  of. 

John  Gibbs,  sworn. 

Q.  (By  Mr.  Hodges.)  Where  do  you  reside? 

A.  North  Billerica. 

Q.  What  is  your  occupation? 

A.  Carder. 

Q.  Do  you  know  the  Saxonville  mills  ? 

A.  I do,  sir. 

Q.  When  did  you  first  get  acquainted  with  them,  or  know 
them? 

A.  When  I first  came  there.  I went  to  Saxonville  in  the  fall 
of  1830,  when  Head  & Co.  owned  them. 


240 


Saxonyille  Mills. 


Q.  How  long  did  you  remain  there? 

A.  Until  about  1865  or  66.  I am  not  certain. 

Q.  After  the  war? 

A.  Yes,  sir.  I had  charge  there  during  the  war  of  a part  of 
No.  2,  and  the  whole  of  No.  3. 

Q.  Were  you  there  when  No.  3 was  burned? 

A.  I was  not,  sir ; that  was  soon  after  I left. 

Mr.  Butler.  Can’t  you  fix  the  time  when  it  was  burned? 

Mr.  Hodges.  I will  ask  him.  I intended  to  have  asked  Mr. 
Hill. 

Q.  Do  you  remember  when  it  was  burned  ? 

A.  I do  not.  It  was  after  I left. 

Mr.  Hodges.  It  was  in  1865  or  66. 

Mr.  Butler.  That  is  near  enough. 

Q.  During  the  time  when  you  were  there,  from  1830  to  1865, 
you  were  passing  from  one  grade  of  duty  to  another? 

A.  I was. 

• Q.  And  at  last  you  were  in  charge  of  the  carding  at  mill  No.  3, 
and  part  of  mill  No.  2? 

A.  Yes,  sir,  and  spinning. 

Q.  What  time  did  you  take  charge? 

A.  I think  it  was  1851  or  52. 

Q.  Now,  sir,  during  your  acquaintance  with  these  mills,  tell  us 
what  portion  of  the  time  the  machinery  was  run  by  water,  averag- 
ing one  year  with  another? 

A.  I should  think  that  the  mills  could  run  near  nine  months  in  a 
year  by  water  ; say  eight  and  a half  to  nine. 

Q.  Then,  after  they  had  run  eight  and  a half  to  nine  months, 
what  was  done  during  the  remaining  three  or  three  and  a half 
months  as  to  the  use  of  water? 

A.  Well,  they  used  all  they  could  get  as  it  came. 

Q.  Yes  ; but  I speak  of  what  was  done.  Did  they  run  one,  two, 
or  more  or  less  of  the  mills  with  water? 

A.  They  usually  took  off  No.  1 mill,  and  run  No.  2 and  No.  3 ; 
No.  3 running  all  the  time  as  much  as  they  could,  sometimes  taking 
off  No.  2. 

Q.  Well,  sir,  prior  to  the  time  when  the  steam-engine  was  put 
in  there,  do  you  remember  any  time  when  all  those  mills  stopped 
entirely  ? 

A.  I never  remembered  any. 

Q.  Since  the  engine  was  put  in,  do  you  remember  any  time 
when  they  stopped  entirely  for  the  want  of  power? 

A.  No,  sir  ; I do  not. 

Q.  How  much  time  can  all  the  mills  run  nights,  taking  one  year 
with  another,  assuming  that  they  likewise  run  in  the  daytime? 

A.  I should  think  that  they  might  run  six  months,  certainly ; 
and  then,  I should  think,  they  could  run  No.  2 six  months  longer. 
That  would  be  the  best  of  my  judgment  about  it. 

Cross-examination. 

Q.  (By  Mr.  Butler.)  Did  you  keep  any  record  of  your 
carding  ? 


John  Gibbs. 


241 


A.  I did  not,  sir ; only  the  amount  of  yarn  that  we  spun, 
because  the  men  were  paid  from  it.  It  is  generally  customary  that 
the  carder  knows  about  how  much  he  is  doing  on  each  machine. 

Q.  Didn’t  you  keep  any  account  of  how  much  wool  you  re- 
ceived, and  how  much  wool  you  turned  out? 

A.  No,  sir ; because  I ordered  the  wool  from  the  boss  of  the 
yard.  He  kept  that.  The  books  show  how  much  wool  I used. 

Q.  Did  he  keep  any  account? 

A.  He  had  to  keep  an  account  of  the  wool  he  delivered. 

Q.  Delivered  to  each  boss  of  carding  ? 

A.  Each  department ; yes,  sir. 

Q.  Then  the  spinner — did  he  keep  an  account  of  what  he  got  from 
you? 

A.  I kept  an  account  of  his  work,  and  booked  it,  because  he  is 
paid  by  the  pound. 

Q.  Then  that  account  must  show  exactly  what  was  done  every 
month  ? 

A.  Yes,  sir  ; the  books  at  the  office  will  show. 

Q.  Then  the  company  have  it  in  their  power,  if  they  kept  their 
books,  to  show  exactly  how  many  days  their  mill  has  worked  ever 
since  1830  up  to  1865? 

A.  The  New  England  Worsted  Co.  was  not  there  in  1830. 

Q.  When  did  this  company  begin  there? 

A.  They  began  about  1833  or  1834. 

Q.  Well,  from  the  time  they  began,  they  ought  to  have  the 
means  of  showing  every  day  they  worked,  ought  they  not  ? 

A.  I should  think  they  certainly  had. 

Q.  They  can  show  exactly  how  much  No.  3 was  run,  exactly 
how  much  No.  2 was  run,  and  exactly  how  much  No.  1 was  run. 
The  machine-shop  was  only  a repair-shop,  was  it? 

A.  That  is  all. 

Q.  And  when  No.  1 and  No.  3 were  stopped,  the  machine-shop 
had  very  little  use  for  power,  had  it? 

A.  Generally  more,  because  they  generally  made  repairs  on  the 
machinery  when  they  stopped  for  any  purpose  whatever. 

Q.  What  was  the  wheel  rated  at  which  was  in  No.  3 when  you 
first  knew  it,  before  they  put  in  the  turbine  wheel  ? 

A.  That  I can’t  tell  you. 

Q.  About  what  ? It  was  a breast- wheel  ? 

A.  Well,  I am  somewhat  unacquainted  with  the  power  of  breast- 
wheels,  it  is  so  long  ago  since  they  used  them,  but  I remember  well 
when  they  were  all  three  in.  I should  think  that  No.  3 wheel 
might  be  50  or  60  horse-power  — a breast-wheel. 

Q.  That  is  when  the  turbine  was  in,  you  mean? 

A.  No,  the  breast-wheel.  I should  think  it  might  be  about  that, 
50  or  60  horse-power. 

Q.  You  don’t  remember  whether  that  mill  ever  fully  stopped  for 
want  of  water? 

A.  Since  the  New  England  Worsted  Company  owned  it,  since 
1833  or  34,  I don’t  remember  any  time  when  it  fully  stopped  for 
want  of  water.  It  might  have  done  so  once  or  twice,  but  I don’t 
remember  it. 


242 


Saxonville  Mills. 


Q.  I suppose,  about  this  running  nights,  all  you  mean  to  say  is 
that  during  the  wet  months  there  was  water  enough  to  run  all  the 
mills  night  and  daj^,  and  to  spare  ? 

A.  I do  think  there  was. 

Mr.  Butler  (to  Mr.  Hodges.)  Now,  I wish  you  would  bring 
those  books  that  I have  proved  in  your  possession. 

Mr.  Hodges.  I don’t  think  the  proof  is  quite  sufficient  to 
satisfy  me  that  I have  got  them.  I am  easily  satisfied  on  that 
subject. 


Rufus  A.  French,  sworn. 

Q.  (By  Mr.  Hodges.)  Where  is  you  residence ? 

A.  Saxonville,  Mass. 

Q.  Your  occupation? 

A.  Weaver  and  warper,  etc. 

Q.  Do  you  know  the  mills  that  we  are  talking  about? 

A.  I am  somewhat  acquainted  with  them,  sir. 

Q.  How  long  since  you  first  knew  them  ? 

A.  I have  worked  in  that  yard  since  1829,  with  the  exception 
of  about  two  years  and  a half. 

Q.  In  what  capacity  have  you  worked  there? 

A.  The  first  year,  I worked  ten  months  and  a half  at-  weaving, 
and  about  four  years  at  warping,  or  dressing,  as  it  may  be  termed, 
in  connection  with  the  weaving.  The  remainder  of  the  time  I have 
had  the  charge  of  the  weaving. 

Q.  What  is  the  relative  amount  of  machinery  now  in  the  mills 
compared  with  that,  I will  say,  in  1844 ; and  (to  make  it  clearer) 
about  the  time  the  first  steam-engine  was  put  in? 

A.  I should  think  there  was  25  per  cent.  more. 

Q.  By  that  you  mean,  probably,  requiring  25  per  cent,  more 
power  ? 

A.  This  is  a guess.  I can’t  say  that  it  is  positively  so,  but  as 
near  as  I can  calculate  by  the  increase  of  machinery  from  time  to 
time,  it  appears  to  me  that  it  might  be  not  exceeding  25  per 
cent. 

Q.  How  much  more  is  there  now  than  there  was  in  1865,  at  the 
close  of  the  war? 

A.  Well,  I should  say  not  much,  sir  ; very  little.  Really,  I can’t 
say.  There  probably  may  have  been  some  small  affairs  added.  I 
should  think  not  a great  deal. 

Q.  What  was  done  with  the  machinery  that  was  contained  in 
mill  No.  3,  when  that  mill  was  burned? 

A.  It  wras  burned  up,  mainly.  * 

Q.  Has  corresponding  machinery  to  that  which  was  then  burned 
up  been  placed  in  the  other  mills  or  buildings  there  — something, 
doing  the  same  work  that  machinery  did? 

A.  I have  so  heard  from  time  to  time,  that  they  changed  the 
machinery  in  No.  3,  and  it  was  put  in  the  store-house  frequently ; 
and  there  was  machinery  stored  away  which  has  been  put  in 
operation  since  the  burning  of  No.  3,  in  different  parts  of  the  mill ; 
as,  for  instance,  five  spinning  frames  were  stored  in  a building,  and 


Rufus  A.  French. 


243 


there  has  been  one  set  of  cards  introduced  in  No.  2,  that  were  laid 
away,  that  formerly  belonged  to  No.  3. 

Q.  Now,  beginning  at  your  first  acquaintance  with  that  mill, 
and  coming  down  to  this  time,  what  should  you  say  was  the  aver- 
age time  during  the  year,  taking  one  year  with  another,  that  the 
machinery  in  the  mills  was  run  b}'  water? 

A.  I should  say  not  exceeding  eight  months,  in  the  daytime. 

Q.  How  with  regard  to  the  remaining  four  months  ? 

A.  For  the  remaining  four  months,  I should  think  that  it  run 
both  night  and  day  the  most  of  the  time.  That  would  embrace 
the  wet  season  of  the  year,  in  which,  when  we  run  all  the  ma- 
chinery, the  water  will  run  over  the  dam  for  successive  weeks- 
sometimes  months. 

Q.  I mean,  sir,  when  all  the  mills  have  run  for  eight  months  in 
the  year,  there  then  remain  four  months.  Now,  how  much,  if  any, 
of  the  machine^  could  be  run  during  those  four  months? 

A.  Well,  I should  say  that  the  machinery  would  be  run  mainly 
by  water  ; but  at  intervals. 

Q.  I am  speaking  only  of  running  the  machinery  by  water.  I 
mean  the  remaining  four  months.  How  much  of  that  machinery 
could  be  run  by  water,  if  any  of  it?  Say,  begin  with  mill  No.  3. 
You  have  run  all  your  mills  eight  months,  and  you  come  down 
now  to  a period  When  you  cannot  run  them  all.  Now,  what  did 
you  run  for  the  remaining  four  months,  if  anything,  by  water? 

A.  Well,  they  would  be  changing,  as  I said  before,  — run  some 
by  water  and  some  by  steam,  perhaps  ; but  after  taking  into  the 
account  the  whole,  I took  the  average.  You  assume  by  your 
question  that  they  should  run  all  the  machinery  eight  months  in 
the  year,  in  the  daytime ; that  was  all  I thought  the  water  would 
do ; and  yet  there  were  other  seasons  of  the  year,  in  wet  time, 
when,  if  we  should  have  all  the  machinery  running,  it  would  run  it 
night  and  day,  month  after  month,  for  perhaps  several  months, 
there  would  be  such,  a flow  of  water.  Does  that  answer  your  ques- 
tion ? 

Q.  Not  entirely.  We  will  suppose,  Mr.  French,  that  you  have 
been  running  the  mills  from  the  first  of  September  to  the  first  of 
May  by  water.  The  water  then  slacks,.*  and  there  remain 
June,  July,  and  August  to  complete  the  year.  Now,  what  ma- 
chinery, if  any,  did  you  run,  during  your  acquaintance  with  the 
mills,  during  those  seasons,  by  water? 

A.  Well,  there  would  be  a very  great  variation.  It  is  some- 
thing I have  made  no  minutes  of  whatever,  in  past  time,  and  it 
would  be  impossible  for  me  to  tell,  as  we  had  to  change  sometimes 
twice  a day,  and  even  more  than  that  sometimes,  from  steam  to 
water,  and  from  water  to  steam,  just  as  circumstances  required. 
It  is  hard  to  compute  it,  and  yet  I thought  your  question  embraced 
in  the  first  place  the  whole  thing. 

Q.  Well,  sir,  I know  it  is  hard,  because  you  are  speaking  from 
memory  without  notes;  but  tell  me  another  thing.  Did  No. *3 
ever  stop  for  want  of  water? 

A.  Well,  sir,  I think  it  has  a veiy,  very  short  time,  perhaps  a 
few  times  ; but  generally  it  has  run  right  straight  along.  • 


244 


Saxon ville  Mills. 


Q.  Do  you  remember  about  when  it  has  stopped  ? 

A.  I can’t  give  you  dates  ; it  might  be  for  a few  hours,  even,  but 
very  seldom. 

Q.  At  times,  when  you  took  off  No.  1,  did  you  continue  to  run 
No.  2 and  No.  3? 

A.  Well,  that  would  be  according  to  the  amount  of  water  there 
was  ; perhaps  there  would  be  enough  to  run  No.  2 and  3,  and  if  so, 
let  it  come  half  a day,  and  then  change  ; that  has  been  the  custom. 

Q.  Turning  back,  tell  me  if  you  remember  any  time  during 
your  acquaintance  with  the  mills  when  the  mills  stopped  running 
entirely  for  the  want  of  water,  and  if  so,  when,  and  how  long  it 
continued  ? 

A.  Well,  I remember  of  their  stopping  certainly  once  ; I don’t 
know  as  I can  tell  you  precisely  the  time ; they  stopped  a number 
of  weeks,  I think,  once. 

Q.  What  do  you  mean  by  a “number  of  weeks,” — two  weeks? 

A.  Well,  two  or  three  certainly ; I don’t  know  but  more  ; I had 
an  idea  it  was  more ; but  still  two  or  three  weeks.  We  stopped 
about  the  time  we  put  in  the  English  engine,  I think  it  was  ; let 
me  see.  I started  up  9 bunting-looms  in  1842,  and  I think  it  was 
the  next  year  the  engine  started. 

Q.  In  1842  or  43,  you  say  now,  the  time  they  started  up  the 
engine? 

A.  I think  it  was  in  1843  ; it  might  be  1844  that  the  engine 
was  started. 

Q.  Y ou  refer  to  the  first  engine  that  was  put  there  ? That  is 
what  I want  to  get  at. 

A.  I do,  sir. 

Q.  You  think  that  just  previous  to  that  there  was  a dry  season 
when  the  mill  stopped  ? 

A.  I think  it  was  about  that  time. 

Q.  Do  you  remember  their  stopping  at  any  time  before  that? 

A.  Well,  I do,  but  I don’t;  that  is  to  say,  as  to  date.  I 
think  I had  been  in  Saxonville  some  four  or  five  years  when  they 
stopped,  in  April,  and  we  stopped  for  three  months,  the  last  time. 
It  was  a very  dry  time.  The  year  1834  or  35,  I should  think  it 
was.  But  never  since  that,  nor  previous  to  that,  did  they  stop  so 
much  as  at  that  time.  • 

Mr.  Hodges.  I assume  that  you  have  not  stopped  since  you 
had  an  engine  in,  because  you  have  had  something  to  do  the  work 
besides  water ; therefore  I have  not  asked  any  questions  about 
that. 

Cross-examination . 

Q.  (By  Mr.  Butler.)  Mr.  Witness,  what  was  done  there  be- 
fore 1844?  What  did  they  make?  It  was  then  the  New  England 
Worsted  Co.,  and  they  only  made  worsted  work,  did  they? 

‘A.  They  made  flannel  at  the  start,  in  No.  2 mill,  in  1829,  and 
continued  it  along  until  Coolidge,  Poor  & Head,  the  company 
that  was  then  in  there,  made  an  assignment,  at  which  period  I 
left  Saxonville,  at  that  time. 


Rufus  A.  French. 


245 


Q.  That  failed  them  ; then  what  did  they  go  to  doing? 

A.  They  made  flannel  previous  to  that  time.  Then,  after  that, 
as  I stated,  I left  Saxonville.  As  they  proposed  to  work  up  the 
stock  and  close  up,  I got  a job  at  Fitchburg,  and  left.  I returned 
in  about  two  }^ears  and  a half,  dating  April,  1838. 

Q.  What  business  was  started  up  then? 

A.  The  New  England  Worsted  Co.  came  there  to  start  up  their 
worsted  works,  and  also  to  make  blankets. 

Q.  How  long  did  they  continue  the  worsted  business  there  ? 

A.  They  have  continued  it  until  the  present  day. 

Q.  Under  another  change  of  name? 

A.  Under  another  administration. 

Q.  In  1843,  what  was  the  product  of  those  mills  compared  with 
what  it  is  now,  when  they  were  running  full,  doing  the  best  they 
could  then,  and  doing  the  best  they  can  now? 

A.  It  is  impossible  for  me  to  say.  I can  say,  in  regard  to  my 
own  room,  just  about  the  same  thing  one  year  with  another,  for 
these  forty  years. 

Q.  And  yours  is  what? 

A.  Weaving. 

Q.  Weaving  what? 

A.  Blankets. 

Q.  The  blankets  would  run  along  about  the  same  all  the  time? 

A.  Yes,  sir.  We  do  about  320  blankets  a day,  on  17  looms. 

Q.  How  much  did  you  do  during  the  war? 

A.  Well,  sir,  we  done  something  more  than  that,  because  we 
run  extra  time. 

Q.  How  much  extra  time? 

A.  Well,  sir,  I fared  a little  better  than  some  of  the  overseers, 
for  Mr.  Simpson  told  me  what  he  wanted  done,  and  told  me  I 
must  run  night  and  day.  I objected.  I asked  him  how  much  he 
wanted,  and  he  told  me  how  much  he  would  be  satisfied  with, 
whether  I run  nights  or  not ; so  I run  a day  and  a quarter  and 
done  the  work. 

Q.  How  much  work  did  you  do  in  that  time? 

A.  I can’t  tell  you  exactly  ; but  I done  done  enough  to  satisfy 
him  that  he  got  a day  and  night’s  work. 

Q.  Did  you  do  that  by  speeding  up  your  looms  ? 

A.  We  did  speed  them  up  some.  Well,  we  worked  with  a little 
more  vim. 

Q.  And  you  were  paid  for  a day  and  a quarter,  and  the 
rest  of  the  mill  had  pay  for  a day  and  night,  and  only  kept  up 
with  you  ? 

A.  It  was  just  about  so  ; pretty  much  so. 

Q.  Well,  then,  it  would  have  been  a more  profitable  business 
for  them  to  have  speeded  up  the  rest  of  the  work  and  kept  up  with 
you,  and  paid  for  a day  and  a quarter  instead  of  two  days’  work, 
besides  losing  the  gas  ? 

A.  Perhaps  the  rest  were  not  so  smart  as  I was. 

Q.  Which  did  you  light  with  at  that  time,  oil  or  gas  ? 

A.  Oil,  at  that  time. 

Q.  So  this  running  all  night  with  water  all  night  was  not  a very 


246 


Saxonville  Mills. 


profitable  business  for  him,  was  it?  He  better  have  run  a quarter 
of  a da}-  longer,  and  not  used  his  water  all  night,  as  you  under- 
stand it?  That  is  so,  isn’t  it? 

A.  Well,  he  made  an  exception  of  me,  sir;  I am  not  able  to 
say  why  exactly.  I done  a pretty  good  day’s  work.  He  was 
satisfied  with  it. 

Q.  He  was  satisfied  with  it ; but  you  had  to  keep  up  with  the 
rest  of  the  production? 

A.  I don’t  know  what  his  estimate  was. 

Q.  I did  not  ask  you  that ; but  you  had  to  keep  up.  They 
could  not  make  blankets  until  you  wove  them? 

A.  No,  sir. 

Q.  They  could  not  finish  them  until  after  you  wove  them  ? It 
was  no  use  to  spin  any  faster  than  you  could  weave,  so  that  you 
were  the  regulator,  after  all? 

A.  (The  witness  did  not  reply  to  the  question.) 

Q.  (By  Mr.  Hodges.)  You  did  not  do  all  the  weaving,  did 
you? 

A.  No,  sir  ; only  about  one-third. 

Q.  (By  Mr.  Butler.)  Thanks ! And  you,  by  hurrying  up 
your  matter,  and  having  only  one-third  of  the  weaving  to  do,  kept 
up  with  those  who  wove  all  night? 

A . I worked  on  the  coarse  work  machinery,  and  perhaps  there 
was  a difference  made  about  the  propriety  of  running  my  work.  I 
worked  mainly  on  the  coarser  kind  of  work. 

Q.  Army  blankets,  and  that  sort  of  things,  I suppose? 

A.  Yes,  sir. 

Q.  And  that,  of  all  work,  could  be  done  best  at  night,  could  it 
not? 

A.  I should  say  it  could.  No,  I won’t  say  that.  But  still,  we 
did  not  work  quite  as  good  stock.  It  would  not  work  quite  as 
well  as  white  blankets. 

Q.  You  could  have  got  along  a good  deal  faster  if  they  had 
given  you  better  stock,  couldn’t  you? 

A.  I suppose  so. 

Q.  You  said  that  at  some  time  they  started  up  the  making  of 
bunting  there — when  was  that? 

A.  1842. 

Q.  How  long  did  that  manufacture  continue  ? 

A.  From  six  to  eight  years. 

Q.  For  whom?  General  merchandise? 

A.  Yes,  sir ; for  the  market.  It  was  sold  in  Boston,  New 
York,  Philadelphia,  and  the  market  generally. 

Q.  They  stopped  that? 

A.  Yes,  sir. 

Q.  And  did  not  begin  it  again? 

A.  No,  sir. 

Q.  They  stopped  it,  then,  about  1850?  Was  that  so? 

A.  1848.  I have  the  record  of  the  work,  I believe,  about  the 
last. 

Q.  Very  like  ; but  about  what  time  did  they  stop  it? 

A.  About  1848. 


Kufus  A.  French. 


247 


Q-  Did  they  keep  on  with  their  worsted  work? 

A.  Yes,  sir. 

Q.  That  banting,  I have  understood,  was  made  of  worsted  ? 

A.  Yes,  sir  ; warping  and  filling. 

Q.  Did  they  double  and  twist  the  filling,  do  you  remember? 

A.  No,  sir. 

Q.  Did  they  double  and  twist  the  warp  ? 

A.  No,  sir.  They  had  to  size  it  pretty  well  in  order  to  lay  the 
fibre  down. 

Q.  The  sizing  would  wash  off,  I suppose,  in  the  rain,  if  it  was 
out  in  a storm  ? 

A.  Glue  size  will,  sir.  That  is  what  I used ; the  very  best 
thing. 

Q.  Did  you  sell  any  to  the  navy  or  army,  do  you  remember? 

A.  I don’t  know,  sir,  where  they  sold  it. 

Adjourned  to  Thursday , at  9J-  o'clock. 


248 


Saxon ville  Mills. 


Thursday,  September  28th,  1876. 

Joseph  P.  Frizzell,  sworn. 

Q.  (By  Mr.  Hodges.)  What  is  your  occupation? 

A.  I am  a civil  engineer. 

Q.  In  what  department  of  civil  engineering,  if  you  have  any 
special  department? 

A.  My  employment  has  been  mainly,  for  most  of  my  professional 
life,  in  the  line  of  hydraulic  engineering,  — dealing  with  water,  in 
one  shape  or  another. 

Q.  Have  you  made  an  examination  of  the  Saxonville  fall? 

A.  I caused  the  fall  to  be  measured  at  Saxonville. 

Q.  Did  you  yourself  examine  it? 

A.  I did,  so  far  as  to  be  satisfied  that  it  was  about  correct. 

Q.  What  is  the  height  of  the  fall?  State  the  result  of  your 
examination. 

A.  The  river  at  [the  time  of  measuring  the  fall  was  not  in  its 
ordinary  condition  ; the  water  below  the  dam  was  a good  deal  lower 
than  it  would  have  been  when  the  river  was  flowing ; for  that 
reason,  there  is  a little  correction  to  be  made.  There  are  two  falls  ; 
there  is  one  at  Saxonville,  and  then  there  is  a small  fall  some  dis- 
tance above.  The  one  at  Saxonville  is  25.29  feet,  as  near  as  I 
could  make  it.  The  upper  fall  (the  grist-mill  fall)  is  1.67  feet; 
it  was  at  that  time.  Reckoning  the  fall  at  the  top  of  the  dam,  it 
was  1.67;  but  at  present,  over  the  flash-boards,  assuming  that 
those  flash-boards  are  correct,  that  they  have  a right  to  use  those 
flash-boards,  the  fall  at  that  point  would  be  2.58  feet. 

Mr.  Hodges.  We  have  that  right. 

Q.  How  do  you  make  the  fall  at  the  large  dam?  25.59  from 
the  top  of  the  dam  ? 

A.  From  the  top  of  the  existing  flash-boards  to  the  surface  of 
the  water  at  the  outlet  of  the  race,  making  allowance  for  the  rising 
of  the  water  in  the  race  when  the  river  is  running.  The  river  was 
substantially  cut  off  when  the  levels  were  taken. 

Q.  How  would  it  be  if  you  reckoned  the  fall  below  the  race  from 
the  level  below  to  the  top  of  the  flash-boards  of  the  dam? 

A.  From  the  level  below  the  rapids? 

Q.  Yes,  sir. 

A . That  would  add  2.8  feet  fall. 

Q.  Those  rapids  are  immediately  below? 

A.  Yes,  sir.  This  would  be  levelling  to  a point  some  800  or  900 
feet  in  a straight  line  below  the  mill ; in  a straight  line,  not  follow- 
ing the  bend  of  the  river. 

Q.  (By  Mr.  Butler.)  That  is,  the  stream  runs  off  rapidly  until 
it  comes  to  a level? 

A.  Yes,  sir. 

Q.  (By  Mr.  Hodges.)  You  mean,  that  bridge  that  crosses  about 
here  [indicating  the  point  on  map]. 


Joseph  P.  Frizzell. 


249 


A.  What  is  called  “ Elm-street  bridge  between  the  race  of  the 
mill  and  Elm-street  bridge  there  is  a fall  of  2.8  feet. 


Cross-examination . 

Q.  (By  Mr.  Butler.)  Is  that  a ledge  behind  the  mill  where  the 
rapids  are? 

A.  I think  not. 

Q.  Gravel  ? 

A.  Yes,  sir ; it  is  gravel,  and  farther  down  there  is  a good  deal 
of  sand. 

Q.  Do  you  know  whether  the  water  is  backed  up  to  what  you 
call  the  level,  by  the  dam  below? 

A.  It  was  not  at  that  time ; I don’t  know  how  it  is  now. 

Q.  When  was  that  time  ? 

A.  That  was  the  first  of  September,  this  year,  that  the  levels  I 
speak  of  were  taken. 

Q.  No  water  was  running  at  all? 

A.  Barely  a perceptible  current ; three  or  four  cubic  feet  per 
second,  perhaps,  running  in  the  channel. 

Q.  Do  you  know  whether  that  level  to  which  the  rapids  come  is 
the  head  of  a mill-pond  ? 

A.  I can’t  say  ; I should  judge  not. 

Q.  (By  Mr.  Hodges.)  There  is  no  dam  between  there  and 
North  Billerica,  — 29  miles? 

A.  No,  sir. 

Francis  W.  Bacon,  sworn. 

Q.  (By  Mr.  Hodges.)  What  is  your  occupation? 

A.  Machinist  and  engineer. 

Q.  Have  you  made  an  examination  of  the  steam-engines  and 
the  appliances  in  use  at  the  Saxonville  mills  recently,  and  when? 

A.  I have,  sir,  recently.  September  4,  I made  an  examination 
there. 

Q.  Will  you  state  the  result  of  that  examination  ? 

A.  I found  two  steam  engines,  each  of  20-inch  cylinders,  48- 
inch  stroke,  making  52  revolutions  per  minute. 

Q.  Under  what  pressure? 

A.  Eighty  pounds’  pressure  when  I saw  them.  What  we  call 
“ high  pressure  condensing.”  The  vacuum,  by  gauge,  showed  15 
to  23  inches;  the  mean  would  be  19  inches;  equal  to  about  nine 
and  a half  pounds.  The  point  of  cut-off  I could  only  guess  at ; 
not  putting  an  indicator  on,  I could  not  tell  exactly. 

Q.  With  your  experience  of  engines,  you  could  tell  with  suffi- 
cient accuracy,  couldn’t  you  ? 

A.  Well,  I can  give  you  a supposition  on  the  point  of  cut-off, 
and  the  result  that  would  follow  that  theoretically. 

Q.  Well,  if  it  can  be  different  from  that,  I don’t  know  as  I 
care  about  it ; I don’t  think  it  of  very  much  consequence,  any 
way. 


250 


Saxonville  Mills. 


A.  I can  give  you  the  capacity  of  the  engine  commercially. 

Q.  What  does  the  engine  indicate? 

A.  I am  told  — I know  nothing  about  it  — 

Q.  The  engineer  is  here  ; he  can  tell  that.  Now,  sir,  in  the 
first  place,  with  such  an  engine  as  that,  and  taking-  the  ordinary 
engineering,  as  your  experience  shows  it  to  be  in  this  part  of  Mas- 
sachusetts, what  would  be  the  consumption  of  coal  for  ten  hours? 
Ten  hours  is  as  well  as  any  other  time ; take  ten  hours. 

A.  Suppose  it  indicates  320  horse-power,  the  consumption  of 
coal  — I have  not  those  figures,  only  the  cost  of  the  amount  of 
coal. 

Q.  Well,  sir,  you  know  substantially  what  such  an  engine  would 
demand  per  hour  per  horse-power,  and  we  want  the  result  of  your 
experience,  as  an  expert,  in  such  matters. 

A.  My  experience  shows  that  factory  engines,  as  a rule,  will 
call  for  about,  as  we  find  them,  not  perhaps  as  we  would  have 
them,  but  as  we  find  them,  would  call  for  about  four  pounds  an 
hour  for  each  horse-power. 

Q.  Varying  from  some  figure  less  than  that  to  some  figure 
higher  than  that? 

Mr.  Butler.  I guess  not.  What  would  be  the  variations? 
Don’t  lead  him,  please. 

A.  Well,  from  two  and  a half  to  fifteen  pounds. 

Q.  You  mean  a consumption  from  two  and  a half  to  fifteen 
pounds  per  hour? 

A.  Take  that  type  of  engine,  as  I find  them  in  factories,  I am 
safe  to  say  that  it  would  require  four  pounds  an  hour  per  horse- 
power. 

Q.  (By  Commissioner  Francis.)  This  is  a double-cylinder 
engine  ? 

A.  This  is  what  we  know  as  a“  double-cylinder  engine,”  both 
working  on  one  shaft. 

Q.  (By  Commissioner  Russell.)  Now,  do  you  treat  that  as  a 
320  horse-power  engine?  You  began  an  answer  here  by  saying, 
“ For  such  an  engine  indicating  320  horse-powers.”  You  speak  of 
that  as  one  double  engine  ? 

A.  I mean  this  one  double  engine,  high  pressure  condensing. 
I am  speaking  of  a double  engine,  working  on  one  shaft. 

Q.  (By  Mr.  Hodges.)  Now,  Mr.  Witness,  I want  to  get  the 
cost  of  such  an  engine,  the  setting,  and  the  other  appliances  for 
placing  upon  the  working  shaft  of  the  mill,  the  power  produced  by 
the  engine.  Will  you  state  it  in  detail,  as  you  know  it? 

A.  There  is  one  addition  to  the  character  of  this  engine  that  I 
must  make.  It  is  what  we  know  as  a “ geared  engine,”  or,  in  other 
words,  the  fly-wheel  of  the  engine  has  a toothed  wheel,  and  plays 
into  a jack,  enhancing  the  cost  somewhat  of  the  machine.  The 
cost  of  that  engine,  set  up  ready  to  run,  I put  down  at  $10,000 
There  were  eight  boilers,  known  as  “ cylinder  tubulars,” 

4 ft.  in  diameter,  15  ft.  long,  5,600 

The  number  of  tubes  is  48,  3 inches  in  diameter. 

The  setting  of  the  boilers,  2,000 


Francis  W.  Bacon. 


251 


Connecting  boilers  with  engine, 

$1,100 

Chimney, 

2,000 

Shafting,  pulleys  and  pedestal-boxes, 

760 

Belting, 

417 

Morton  condenser, 

750 

Supply  pump  for  boilers, 

475 

Total, 

$23,102 

That  includes  the  engine,  boilers,  chimney  connected  with  the 
mill,  ready  to  run. 

Q.  Now,  sir,  if  you  have  considered  the  subject  of  running  that 
engine,  please  state  what  would  be  the  cost  of  running  the  engine, 
introducing  into  it  all  the  elements  of  expenses  that  you  believe 
to  belong  to  running  an  engine  per  annum  ; and  in  that  confine 
yourself  to  ten  hours  of  the  day. 

Interest  on  cost  of  plant,  $23,102,  and  depreciation,  fifteen  per 


cent.,  $3,465 

Engineer,  foremen  and  coal-passer,  3,057 

Rent  of  engine,  boiler  and  coal-house,  1,000 

Oil,  waste  and  packing,  300 

Insurance  on  engine,  engine  house,  boiler  house  and  coal 

house,  275 

Fuel,  14,263 

Taxes,  330 

Repairs,  1,000 

Supervision,  300 

Boiler  insurance,  122 


Total,  $24,112 


Q.  Now,  if  you  are  through  with  the  details  of  that,  go  back  in 
your  list  to  the  item  of  fuel,  and  tell  us,  firstly,  in  making  that  es- 
timate, how  much  fuel  you  have  allowed  per  hour  per  horse-power? 

A.  I have  allowed  four  lbs.  an  hour  for  each  horse-power,  and 
the  number  of  horse-powers  calculated  upon  was  320. 

Q.  Now,  there  is  still  an  element  that  you  have  left,  to  my 
mind,  uncertain,  and  that  is  the  price  of  coal. 

Mr.  Butler.  Is  he  an  expert  on  that,  too? 

Mr.  Hodges.  He  is  an  expert  on  what  he  allowed  for  that. 
He  had  some  price  for  coal,  or  else  he  could  not  have  arrived  at 
anything  but  the  amount  of  coal. 

Mr.  Butler.  That  is  to  say,  he  must  have  fixed  the  price? 

Mr.  Hodges.  He  fixed  the  price,  and  that  is  the  only  way  we  can 
test  the  accuracy  of  his  calculations.  That  is  my  only  purpose. 
I do  not  assume  that  he  is  an  expert,  — I don’t  believe  anybody  is, 
— on  the  price  of  coal. 

A.  I calculated  the  price  of  coal,  for  2,240  pounds,  put  down 
at  Saxonville,  at  $8.00. 

Q.  In  making  that  estimate,  it  is  based  upon  coal  at  $8.00  a 
ton,  of  2,240  pounds,  put  down  at  Saxonville? 

A.  Yes,  sir,  $8.00  for  2,240  pounds. 


252 


Saxonville  Mills. 


Q.  Did  you  examine  any  other  engine  there  than  this  one? 
A.  No,  sir. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  Did  they  show  you  what  that  engine  did 
cost? 

A.  No,  sir. 

Q.  Did  they  show  you  how  much  coal  was  burned? 

A.  No,  sir. 

Q.  Did  they  show  you  the  book  of  the  daily  consumption  for 
three  years? 

A.  No,  sir. 

Q.  That  is  a Corliss  engine,  is  it  not? 

A.  It  is,  sir. 

Q.  Of  the  best  construction,  — is  it,  or  isn’t  it?  I don’t  care 
which. 

A.  Well,  it  is  capable  of  working  as  economically  — 

Q.  I did  not  ask  that  question.  Is  that  a Corliss  engine  of  the 
best  construction,  or  not? 

A.  It  is  not  a modern  engine  ; it  is  not  an  engine  such  as  Cor- 
liss has  in  the  fair  ; it  is  an  engine  — 

Q.  I did  not  ask  that.  Is  it  a Corliss  engine  of  the  best  con- 
struction, as  an  article  of  commerce? 

A.  Well,  I can  answer  that  only  by  saying  that  it  is  capable  of 
doing  as  economical  work  as  a Corliss  engine  is  of  to-day. 

Q.  It  has  the  same  method  of  connecting  power  by  the  fly- 
wheel and  cogs  that  the  engine  in  the  fair  has,  hasn’t  it,  — the 
cogs  and  fly-wheel  operating  on  a jack? 

A.  With  regard  to  the  engine  in  the  fair,  I only  know  by  — 

Q.  If  you  don’t  know  anything  about  it,  don’t  say  anything 
about  it,  and  then  you  won’t  mislead  me.  Tell  only  what  you 
know  ; that  will  take  quite  as  long  as  we  want  to  delay.  Do  you 
now  mean  to  tell  the  commissioners,  sir,  that  a first-class  Corliss 
engine,  operated  properly  by  a competent  engineer,  with  good  fuel, 
consumes  four  pounds  of  proper  coal  per  hour  per  horse-power,  in 
a 320  horse-power  engine? 

A.  I mean  to  say,  as  I have  said,  that  the  variation  in  the  con- 
sumption of  fuel  — 

Q.  I have  not  asked  that.  Please  answer  my  question.  Do  you 
mean  to  say  that  a first-class  Corliss  engine,  properly  operated  by 
a competent  engineer,  fitted  to  produce  320  horse-power,  will  con- 
sume four  pounds  of  coal  per  hour  per  horse-power? 

A.  I mean  to  say,  as  I have  said,  that  is  just  about  the  average 
that  I find  — 

Q.  I have  not  asked  any  average,  because  there  may  be  very 
poor  and  very  bad  engines.  I only  want  to  know  what  amount  of 
coal  }tou  think  a first-class  Corliss  engine,  properly  run,  capable 
of  producing  320  horse-power,  will  consume? 

A.  A first-class  Corliss  engine,  with  selected  coal,  and  that 


Francis  W.  Bacon. 


253 


picked,  with  a first-class,  thorough  fireman,  trained  to  it,  with  an 
engineer  who  is  a good  jockey,  will  run  a first-class  Corliss  engine 
of  320  horse-power,  high  pressure  condensing,  with  two  and  a half 
pounds  of  coal.  That  is  an  exception,  which  I wish  the  gentlemen 
to  understand  is  not  carried  out  in  factories. 

Q.  Have  you  ever  bought  or  owned  a first-class  Corliss  condens- 
ing engine  ? 

A.  I never  have  owned  a condensing  engine. 

Q.  Have  you  ever  run  one  a week  in  your  life  ? 

A.  No. 

Q.  Have  you  ever  been  in  charge  of  any  establishment  a week 
in  your  life  that  did  run  one  ? 

A.  Yes,  more  than  a week. 

Q.  How  much  more? 

A.  I think  some  fourteen  days. 

Q.  I was  unlucky  in  not  setting  it  at  a fortnight,  instead  of  a 
week.  I will  trouble  you  with  but  one  more  question.  How  much 
do  you  get  a day  for  your  services  as  an  expert  from  the  Saxon- 
ville  Company  ? 

A.  I have  not  made  any  contract  with  them,  sir. 

Q.  How  much  do  you  charge  a day? 

A.  That  is  rather  going  into  a man’s  private  business ; but 
my  charge  is  $25  a day. 

Q.  How  many  days  have  you  been  about  this  work? 

A.  Well,  two  days  anterior  to  yesterday  — yesterday  and  to- 
day. 

Q.  When  did  you  make  this  examination? 

A.  You  already  have  that ; September  4,  I visited  the  works  at 
Saxonville. 

Q.  You  were  there  two  days? 

A.  No,  sir. 

Q.  How  long  were  you  there  ? 

A.  About  four  hours. 

Q.  Did  you  ask  to  see  the  books  to  see  how  much  coal  was 
being  used  ? 

A.  No,  sir. 

Q.  How  long  is  it  since  you  ran  an  engine,  even  fourteen  days  ? 

A.  Well,  the  last  of  my  engineering,  as  a runner  of  an  engine, 
I left  1600  horse-powers  — 

Q.  I do  not  ask  any  other  information  except  the  time. 

A.  1852  ; — that  is,  as  a runner  of  steam  engines. 

Q.  How  much  did  you  include  in  this  $3,000  a year  for  the 
engineer  ? 

A.  I took  the  price  that  was  given  me  by  the  superintendent. 

Q.  Well,  you  did  ask,  then,  about  the  price  of  the  engineer. 
How  much  did  you  take?  — I don’t  care  whether  it  was  the  price 
given  you  by  the  superintendent  or  not ; — how  much  did  you  cal- 
culate for  the  engineer? 

A.  $2.80  a day. 

Q.  More  than  one  engineer  ? 

A.  He  was  called  the  engineer. 


254 


Saxonville  Mills. 


Q.  Did  you  take  more  than  one  engineer  into  your  calcula- 
tion? 

A.  No,  sir. 

A.  How  many  firemen  ? 

A.  Two  firemen. 

Q.  How  many  coal-passers  ? 

A.  One  man  and  one  horse  and  wagon. 

Q.  How  much  did  you  allow  for  the  firemen  ? 

A.  Firemen,  $2  a day  each. 

Q.  How  much  did  you  allow  for  the  coal-passers? 

A.  Coal-passer  and  horse  and  wagon,  $3. 

Q.  How  much  for  the  one  that  hadn’t  the  horse  and  wagon? 

A.  I did  not  find  any  such. 

Q.  Then  you  had  only  one  coal-passer  and  a horse  and  wagon? 

A.  No,  sir. 

Q.  How  far  had  he  to  pass  the  coal? 

A.  I can’t  tell  you,  sir. 

Q.  And  out  of  that  you  made  $3,000  a year? 

A.  Yes,  sir,  $3,057. 

Q.  Now,  sir,  have  you  gone  into  any  calculation  to  see  how 
ifiuch  that  would  make  a horse-power  cost  there  per  year? 

A.  Yes,  sir ; $75.35,  according  to  my  figures. 

Q.  Didn’t  you  testify  in  the  case  of  the  water  works  of  the  town 
of  Waltham? 

A.  Do  these  gentlemen  want  to  know  anything  about  that? 

Q.  I don’t  know  whether  they  do  or  not ; we  will  find  out. 
Didn’t  you  testify  that  the  coal  for  a 100  horse-power  engine,  at  $8 
a ton,  cost  $50? 

A.  No,  sir. 

Q.  Didn’t  you  make  that  out  as  the  amount  finally? 

A.  No,  sir ; I testified  to  a fifty  horse-power  engine. 

Q.  At  $50  a horse-power? 

A.  No,  sir. 

Q.  How  much  did  you  put  that  ? 

A.  That  was  something  over  $100.  I don’t  exactly  remember 
the  figures ; but,  having  stated  that,  I suppose  I have  a right  to 
make  an  explanation  why  that  came  higher  than  this. 

Q.  I suppose  the  explanation  is,  that  it  costs  less  where  you 
have  a large  power  than  it  does  where  you  have  a small  one.  Isn’t 
that  it? 

A.  That  is  part  of  the  explanation. 

Q.  Didn’t  you  start  off  with  testifying  that  it  would  be  $150? 
Wasn’t  that  your  testimony,  taken  down  by  the  reporter,  that  it 
would  be  $150  a horse-power? 

A.  No,  sir  ; I think  not. 

Q.  Sure,  on  your  oath? 

A.  Well,  the  report  will  show.  I think  it  was  $138  ; I am  not 


sure. 


George  W.  Clough. 


255 


George  W.  Clough,  sworn . 

Q.  (By  Mr.  Hodges.)  What  is  your  residence  and  occupa- 
tion? 

A.  Saxonville  ; machinist  and  engineer. 

Q.  You  know  these  Saxonville  mills  we  are  talking  about? 

A.  Yes,  sir. 

Q.  How  long  have  you  known  them? 

A.  About  twenty  years. 

Q.  Have  you  been  engaged  in  them  during  that  time  ? 

A.  Most  of  the  time,  with  the  exception  of  two  and  a half 
years. 

Q.  When  was  that  ? 

A.  1862,  *3,  and  ’4. 

Q.  What  has  been  your  business  there  ? 

A.  Since  1860  i have  run  the  engine ; that  is,  the 
part  of  the  time  that  it  is  run ; the  rest  I have  been  in  the  ma- 
chine-shop. 

Q.  Of  course,  excepting  the  time  you  have  spoken  of  as  being 
absent  from  the  works  ? 

A.  Yes,  sir. 

Q.  When,  if  ever,  did  you  begin  to  keep  a record  of  the  time 
when  you  run  the  engine  by  steam,  and  the  days  when  the  mill 
was  run  by  water? 

A.  I think  it  was  the  17th  of  June,  1871. 

Q.  Have  you  the  original  book  in  which  you  kept  that  time  ? 

A.  I have  : it  was  the  17th  of  June,  1871. 

Q.  Had  you,  previously  to  that  time,  during  the  time  since  you 
took  charge  of  the  engine,  kept  any  record  of  the  time  when  the 
engine  was  run  ? 

A.  I had  not. 

Q.  That  is  the  first  record  you  kept  ? 

A.  That  is  the  first  record. 

Q.  And  that  is  a correct  record  of  the  times  when  it  was  run  ? 
A.  I think  it  is,  unless  there  is  some  error  of  mine. 

Q.  You  intended  to  keep  it  accurately? 

A.  Yes,  sir. 

Q.  Is  there  another  engine  there  besides  the  big  Corliss  engine 
that  we  have  been  speaking  of? 

A.  Yes,  sir. 

Q.  Where  is  it? 

A.  It  is  connected  with  No.  1 mill  — the  large  mill ; it  is  be- 
tween that  and  the  machine-shop. 

Q.  As  you  pass  down  the  hill  ? 

A.  Yes,  sir ; it  is  at  the  left  as  you  go  to  the  machine-shop. 

Q.  For  what  is  that  employed  ? 

A.  There  is  no  use  for  that  now  in  particular. 

Q.  You  don’t  use  it? 

A,  We  have  not  used  it  since  we  had  this  new  engine. 

Q.  When  was  this  new  engine  put  in  ? 


256 


Saxonville  Mills. 


A.  In  1860  ; in  June,  it  was  started  up. 

Q.  Was  the  one  that  you  have  last  spoken  of,  as  being  now 
unused,  in  the  same  place  where  this  one  is? 

A.  No,  sir ; there  was  another  one  in  the  place  of  this. 

Q.  Still  another  one  in  the  place  of  this  ? 

A.  Yes,  sir. 

Q.  Where  is  that  other  one  ? 

A . That  has  been  broken  up  and  sold  for  old  iron. 

Q.  Do  you  know  whether  that  was  what  was  known  as  “ the 
English  engine”? 

A.  No,  sir ; the  one  that  we  have  now,  the  disused  engine, 
is  the  English  engine.  This  other  one  was  made  in  this  country. 

Q.  Now,  have  you  any  knowledge  of  the  amount  of  coal  your 
engine  demands? 

A.  I have  not. 

Q.  Have  you  kept  any  memorandum  of  it,  of  any  kind  ? 

A.  I have  a memorandum  of  the  coal  that  is  used  on  the  corpo- 
ration ; but  not  alone  on  the  engine  ; that  is,  the  amount  of  coal 
that  we  have  used  each  day. 

Q.  How  long  have  you  kept  that? 

A . I commenced  about  the  same  time.  I think  June  17. 

Q.  So  that  you  have  the  amount  of  coal  in  the  same  book  ? 

A.  Yes,  sir. 

Q.  What  do  these  words  mean  on  the  book : “ No.  of  loads  per 
day  ” ? 

A.  That  means  one  ton.  In  the  first  place,  for  one  week,  they 
weighed  the  amount  of  coal  in  the  cart.  We  have  to  drag  our 
coal  from  the  railroad.  It  is  probably  twenty-five  rods  from  the 
engine  house,  and  they  calculate  a ton  to  a load.  They  weighed 
it  for  one  week. 

Q.  (By  Commissioner  Russell.)  How  much  for  a ton? 

A.  2,000  pounds. 

Q.  (By  Mr.  Hodges.)  Take  a day  of  ten  hours : how  much 
coal  does  your  engine  consume,  when  you  use  it,  a day? 

A.  That  I cannot  tell  you. 

Q.  Do  you  know  anything  of  the  cost  of  coal  there  ? 

A.  No,  sir. 

Q.  What  coal  do  you  use? 

A.  I cannot  tell  you  that.  I have  nothing  to  do  with  the  fire 
room.  My  business  is  in  the  engine  room.  Of  course,  I know 
whether  it  is  hard  or  soft.  It  is  hard  coal. 

Q.  Passing  from  this  matter,  do  you  know  the  rapids  below  the 
dam?  Have  you  observed  them ? What  I want  to  get  at  is  simply 
this,  Mr.  Clough  : whether  the  fall  of  water  beginning  below  your 
dam,  until  you  come  down  to  the  level  of  the  water,  where  it 
ceases  to  have  a perceptible  fall,  — whether  that  is  included  within 
the  limits  of  the  Saxonville  Corporation  property,  or  whether  the 
rapids  extend  below  ? 

A.  I don’t  know. 

Q.  You  know  the  lower  limits  of  the  property  there? 

A.  Yes,  sir. 


George  W.  Clough. 


257 


Q.  Where  is  Elm  street? 

A.  Elm  street  runs  from  up  over  the  hill ; runs  from  the  depot 
up.  [Pointed  out  on  map.] 

Cross-examination . 

Q.  (By  Mr.  Butler.)  I only  want  to  get  at  a few  explana- 
tions. A load,  then,  means  in  this  book  a ton  of  coal  drawn  from 
the  railroad  to  the  coal-house  at  the  engine  room  ? 

A.  Fire  room  ; yes,  sir. 

Q.  And  that  load  is  supposed  by  you  to  represent  2,000  pounds 
of  coal  ? 

A.  Yes,  sir. 

Q.  “No.  of  loads  per  day,  No.  1 mill,  on  steam,  June  17,  6,” 
means  that  it  took  six  tons  per  day  to  run  No.  1 mill  on  the  17th 
of  June? 

A.  No,  sir ; it  didn’t  take  all  that  coal  to  run  that  mill. 

Q.  That  is  exactly  what  I want  to  get  at.  I supposed  it  did 
not. 

A.  That  is  the  amount  of  coal  burned  in  the  furnace. 

Q.  This  book,  then,  shows  the  number  of  tons  burned  each  day 
in  the  furnace? 

A.  Yes,  sir. 

Q.  Then,  on  the  19th,  you  charged  No.  2 mill  on  steam,  and 
you  burned  four  loads  on  that  day  ? 

A.  Yes,  sir. 

Q.  Then,  where  the  blanks  are,  the  engine  stopped  ? 

A.  Yes,  sir. 

Q.  But  when  the  engine  stopped,  you  burned  three  tons  a day 
for  four  days  ? 

A.  Yes,  sir. 

Q.  That  was  for  heating  purposes,  I suppose  ? 

A.  Yes,  sir.  The  next  day  was  Sunday.  You  will  notice 
Saturdays  we  burned  a little  more. 

Q.  Then,  on  Sunday,  “ 20.”  What  is  that  “ 20  ” ? 

A.  That  is  a summing  up  of  the  number  of  tons  burned  that 
week. 

Q.  You  haven’t  a book  that  shows  the  number  of  days  the  mill 
run,  have  you? 

A . Take  that  entry,  for  instance.  There  is  No.  1 mill ; there 
is  No.  2 mill ; but  it  is  not  carried  out.  I have  another  book  for 
1875. 

Q.  Have  you  any  book  with  the  amount  of  coal  here  ? 

A.  No,  sir ; it  is  merely  an  account  of  the  engine  in  a more 
condensed  form  than  that  book  is — a mere  copy. 

Q.  Was  it  kept  day  by  day? 

A.  Yes,  sir,  every  day. 

Q.  Then,  on  Sunday,  you  had  burned  during  that  week  twenty 
tons  of  coal? 

A.  Yes,  sir. 

Q.  You  had  run  No.  1 on  the  17th  of  June  on  steam  one  daj\ 


258 


Saxon ville  Mills. 


Then  the  18th  was  Sunday,  and  nothing  was  run.  Then  on  the 
19th  the  engine  stopped  half  a day ; so  it  ran  half  a day  on  the 
19th.  That  is  one  day  and  a half.  At  noon  you  changed  No.  2 
to  steam.  Then,  in  the  afternoon,  the  engine  stopped,  and  you 
did  not  run  it  again  until  the  20th,  so  that  where  you  burned 
twenty  tons  of  coal  that  week,  you  only  run  the  engine  a day  and 
a half? 

A.  Two  days  and  a half. 

Q.  You  run  the  engine  two  days  and  a half  on  one  mill? 

A.  That  is,  No.  1 mill. 

Q.  I say  on  either  one  or  the  other,  you  run  the  engine  two 
days  and  a half? 

A.  Yes,  sir. 

Q.  Then,  in  burning  twenty  tons  of  coal  that  week  you  only 
had  two  days  and  a half  of  the  engine  on  one  mill.  It  takes  about 
half  your  power  on  each  mill  for  your  engine,  don’t  it? 

A.  No ; it  takes  more  on  one  mill  than  it  does  on  the  other 
two  — nearly  one-half  more,  I think. 

Q.  When  you  run  No.  1 mill,  how  many  horse-powers  does  that 
take  ? 

A . It  is  about  210,  I think. 

Q.  How  much  does  No.  2 take? 

A.  92. 

Q.  There  is  no  No.  3 now,  is  there? 

A.  No,  sir. 

Q.  Then  this  shows  all  the  mills  run  by  steam? 

A.  Well,  No.  2 includes  No.  4 mill. 

Q.  You  never  make  a separate  account  of  No.  4? 

A.  No,  sir. 

Q.  When  No.  2 runs  by  steam  No.  4 has  to? 

A.  Yes,  sir ; and  when  No.  1 runs,  No.  5 has  to  run  by  steam. 

Q.  So  that  No.  1 and  No.  5 go  together,  and  No.  4 and  No.  2 
go  together  ? 

A.  Yes,  sir. 

Q.  Now,  by  going  over  this  book  carefully,  we  can  tell  just  how 
long  you  run  with  steam  each  year,  how  many  days  in  the  year, 
and  how  many  days  you  run  partially  with  steam? 

A.  Yes,  sir. 

Q.  Have  you  ever  gone  over  that  calculation  ? 

A.  I have,  and  have  it  here.  [Paper  produced.] 

Q.  Where  is  1871,  sir?  Have  you  got  the  calculation  for 
1871? 

Ai  No,  I did  not  commence  until  the  first  of  January. 

Q.  Why  didn’t  you  commence  in  1871,  when  your  book  com- 
menced ? 

A.  Well,  it  is  on  the  paper,  isn’t  it? 

Q.  That  is  in  September.  Your  book  commences  in  June, 
1871.  However,  I won’t  bother  you.  We  can  make  the  calcula- 
tion as  well  as  you  can,  now  we  have  got  the  date. 

A.  I thought  I had  it  here ; but  I probably  skipped  those  six 
months. 


George  W.  Clough. 


259 


Q . Well,  in  order  to  do  that,  we  must  have  the  other  book,  after 
we  get  over  here,  because  you  do  not  put  in  the  mills. 

A.  There  are  no  mills  run  I told  you.  I didn’t  make  any 
account  of  it  when  the  mills  didn’t  run. 

Q.  That  is,  wherever  it  is  blank  it  was  water-power? 

A.  Yes,  sir. 

Q.  (By  Commissioner  Russell.)  Then  that  book  shows  when 
the  mills  run  by  steam,  and  what  mills  run  by  steam,  without  the 
other  book  ? 

A.  Yes,  sir ; the  other  book  is  merely  a copy  from  that,  only  in 
a little  different  form.  This  is  the  original  book,  and  I com- 
menced it  on  my  own  account. 

Q.  (By  Mr.  Butler.)  Isn’t  there  a superintendent  of  these 
mills  at  Saxon ville? 

A . Yes,  sir  ; there  is  a superintendent  and  a paymaster. 

Q.  He  ought  to  know  how  much  coal  he  buys? 

A.  I don’t  think  he  buys  the  coal. 

Q.  He  knows  how  much  he  receives  and  paj^s  freight  for, 
doesn’t  he  ? 

A.  I cannot  tell  you  what  he  knows. 

Q.  The  poor  man  has  not  died  recently,  has  he  ? 

A.  No,  sir. 

Q.  He  might  be  here,  if  the  company  wanted  him? 

A.  Yes,  sir. 

Q.  I want  to  ask  you  a question  or  two  about  another  matter, 
seeing  that  you  are  the  last  gentleman  I am  likely  to  get  from  those 
mills.  Do  you  know  anything  about  what  that  dam  cost? 

A.  No,  sir  ; it  was  built  long  before  I went  there. 

Q.  Did  you  ever  run  your  mill  when  the  heating  apparatus  was 
not  going? 

A.  No,  sir ; they  both  have  to  run  at  the  same  time. 

Q.  Is  yours  a good  engine  ? 

A.  Yes,  sir. 

Q.  And  your  pay  is  how  much  ? 

A.  $2.52  a day. 

Q.  How  long  has  it  been  that? 

A.  Since  the  first  of  September,  1876. 

Q.  Then,  if  the  superintendent  told  Mr.  Bacon  on  the  4th  of 
September  it  was  $2.80,  somebody  got  it  wrong,  didn’t  they  ? You 
would  be  glad  to  have  the  $2.80,  I suppose? 

A.  I would,  yes,  sir.  They  cut  down  the  first  of  September 
from  2.80,  ten  per  cent. 

Q.  (By  Mr.  Hodges.)  It  was  $2.80  until  the  first  of  the  month? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  How  much  do  the  firemen  get  a day? 

A.  Two  dollars. 

Q.  Since  the  cut  down  ? 

A.  No,  sir  ; ten  per  cent.  off. 

Q.  We  want  to  get  at  what  they  are  paying  now,  because  we 
suppose  it  is  going  still  lower.  How  much  does  the  man  with  the 
horse  and  wagon  get  ? 

A.  I don’t  know  what  he  gets. 


260 


Saxonville  Mills. 


Q . He  has  to  haul  seven  or  eight  tons  of  coal  a day,  doesn’t  he? 

A.  Yes,  sir. 

Q.  About  how  many  rods  ? 

A.  I should  say  it  was  twenty  or  twenty-five  rods. 

Q.  Do  you  think  it  costs  three  dollars  a day  to  haul  seven  or 
eight  tons  of  coal  twenty-five  rods  ? 

A.  I should  say  not ; no,  sir. 

Q.  Have  you  ever  kept  an  account  of  how  much  it  cost  you  for 
oil  and  waste? 

A.  No,  sir. 

Q.  How  much  should  you  say  it  does  cost  to  move  coal  from  the 
railroad  depot,  or  the  place  where  it  is  deposited  to  your  coal  house  ? 

A.  I have  no  idea  of  knowing.  I don’t  know  what  it  costs  to 
keep  the  horse,  or  how  much  the  man  gets. 

Q.  Don’t  that  man  and  horse  do  anything  else  ? 

A.  Yes,  sir. 

Q.  When  your  engine  is  not  running,  you  are  engaged  on  its 
repairs,  or  engaged  as  machinist  in  the  repair-shop? 

A.  Yes,  sir. 

Q.  When  the  engine  is  not  running,  the  firemen  are  engaged  in 
keeping  up  the  fire  under  the  boiler  for  heating  ? 

A.  One  of  them ; the  other  one  is  engaged  elsewhere  most  of 
the  time. 

Q.  Do  you  keep  an  account  of  the  repairs  on  the  engine? 

A.  No,  sir. 

Q.  Does  anybody  do  any  repairs  on  the  engine  besides  your- 
self? 

A.  If  I have  a job,  if  I want  any  assistance,  I have  it  from  the 
machine-shop. 

Q.  I know  ; but  as  a rule  ? 

A.  Yes,  sir ; sometimes  I have  from  one  to  ten  men ; it  de- 
pends upon  the  job. 

Q.  Give  me  your  very  best  estimate  for  the  year  past,  of  the 
repairs  upon  your  engine. 

A.  It  would  be  merely  guess-work.  I have  no  idea.  Repairs 
count  up  pretty  high. 

Q.  You  drive  your  engine  about  how  many  times  a minute  ? 

A.  Fifty-two. 

Q.  Its  capacity  is  what? 

A.  Well,  it  is  tested  320  horse-power.  That  is  the  most  I have 
ever  made  it ; — that  amount  of  machinery. 

Q.  Does  your  engine  when  it  is  running  by  steam  run  as  well 
as  it  does  when  it  is  running  under  water? 

A.  Yes,  sir ; it  runs  as  well.  What  do  you  mean  by  “ running 
as  well  ” ? 

Q.  As  steadily,  as  easily? 

A.  Yes,  sir. 

Q.  Does  your  engine  labor  at  all  at  any  time  with  the  amount 
of  work  that  is  put  upon  it? 

A.  Yes,  sir ; it  has. 

Q.  When? 

A.  Previous  to  putting  on  the  condenser. 


George  W.  Clough. 


261 


Q.  How  long  has  the  condenser  been  on? 

A.  Three  years,  I think. 

Q.  That  has  increased  its  capacity  somewhat? 

A.  Yes,  sir. 

Q.  Or  rather,  perhaps,  increased  its  steadiness.  Is  that  it? 

A.  Well,  it  has  taken  off  a certain  per  cent,  of  power.  That  is, 
the  engine  runs  easier. 

Re-direct . 

Q.  (By  Mr.  Hodges.)  You  say  your  engine  rates  320  horse- 
power : will  it  perform  no  higher  duty  than  that? 

A.  Yes,  sir.  I presume  it  would  perform  duty  until  it  breaks, 
as  far  as  that  is  concerned. 

Q.  When  you  say  it  rates  at  that,  I don’t  think  I quite  under- 
stand you.  Do  you  know  that  it  never  has  performed  higher  duty 
than  that? 

A.  That  is  the  highest  of  any  card  that  has  ever  been  taken 
from  it. 

Q.  It  may  have  performed  a higher  duty  without  the  card  being 
taken  ? 

A.  Yes,  sir. 

Q.  How  often  are  cards  taken  ? 

A.  No  specific  time.  Sometimes  I take  a dozen  a day,  and 
then  I may  not  take  one  for  a week. 

Q.  Is  it  your  habit  to  take  them  oftener  than  once  a week,  or 
have  you  any  habit  about  it? 

A.  No,  sir.  I have  no  habit.  If  there  is  anything  the  matter, 
if  the  valves  don’t  seem  to  work  right,  I put  on  the  indicator. 

Q.  Sometimes  it  is  not  on  for  a month  ? 

A.  Yes,  sir.  It  has  not  been  on  this  month. 

Q.  Will  you  take  this  book  and  tell  me  from  that  how  many 
days  No.  1 worked  by  steam  in  June,  1871? 

A.  Two  days  and  a half. 

Q.  How  much  No.  2? 

A.  Two  days  and  a half. 

Mr.  Butler.  Then  we  have  the  mills  running  by  steam  two 
days  and  a half  in  June? 

Mr.  Hodges.  Yes,  sir. 

Re-cross. 

Q.  (By  Mr.  Butler.)  Mr.  Engineer,  a 320  horse-power  engine 
can  be  run  up,  without  any  trouble,  from  twenty  to  twenty-five  horse- 
power more,  can  it  not? 

A.  This  engine,  I would  say,  was  tested  250  horse-power. 

Q.  I want  you  to  explain  a little  discrepancy  to  me,  if  you  can. 
Assume  that  you  find  that  your  indicator  shows  320  horse-power, 
(that  i3  the  highest,  it  is  assumed ; that  is  in  the  testimony,  and  I 
will  leave  it)  ; that  it  takes  twenty  per  cent,  of  that  power  to  turn 
the  shafting  and  transmit  it  to  the  machinery ; assume  thnt  the 
machinery  is  in  itself  accurately  tested  and  found  to  be  325  horse- 
power, how  can  that  be  done,  if  it  can  be  done? 

' A.  I don’t  know,  unless  you  take  the  twenty  per  cent,  from  it. 
The  friction. 


262 


Saxonville  Mills. 


Q.  Pardon  me  ; you  don’t  quite  apprehend  me.  I only  wanted 
to  call  your  attention,  whether  your  engine  really  did  not  run 
more.  You  say  you  got  320  as  the  highest  indicator? 

A.  Yes,  sir  ; that  is  the  card  from  the  cylinder. 

Q.  Now,  then,  that  is  the  highest  amount  of  power  that  is  trans- 
mitted from  the  engine? 

A.  Yes,  sir. 

Q.  Very  well.  Now,  it  takes  ten  per  cent,  of  that  320  horse- 
power, to  wit,  32  liorse-power,  to  turn  the  shafting  and  con- 
nections ; but  yet  the  djmamometer  is  supposed  to  show  that  the  ma- 
chinery itself  requires  325  horse-power  to  run  it.  Can  you  explain 
how  that  can  be?  You  start  with  320. 

A.  314,  I think  it  was. 

Q.  Well,  314.  Assume  it  is  314.  Are  you  not  just  as  badly 

off? 

A.  No,  sir,  I cannot  explain  that. 

Mr.  Butler.  You  and  I are  exactly  alike  in  that.  I cannot 
explain  it.  I didn’t  know  but  somebody  could. 

Mr.  Hodges.  There  is  where  you  both  differ  from  me. 

Mr.  Butler.  Oh ! you  can.  I am  glad  of  that. 

Q.  Now,  in  this  sheet  for  1871,  you  have  put  down  no  days  of 
steam.  You  have  just  told  us  that  each  of  the  mills  run  two  and 
a half  days. 

A.  I commenced  taking  this  report  the  17th  day  of  June.  For 
that  reason,  I have  no  report  previous  to  July,  1871. 

Q.  But  in  the  book  that  you  have,  there  seems  to  be  two  and  a 
half  days  for  mill  No.  1,  and  two  and  a half  days  for  mill  No.  2 in 
June? 

A.  Yes,  sir.  I didn’t  take  it,  for  this  was  a broken  month. 

Q.  (B}'  Commissioner  Russell.)  There  might  have  been  other 
days  when  steam  was  used  in  June,  before  the  17th? 

A.  Yes,  sir.  I will  say  that  when  I commenced  to  take  these 
books,  I never  had  any  idea  that  they  would  go  before  any  court. 

Q.  You  did  it  on  your  own  account? 

A.  Yes,  sir. 


Table  showing  the  number  of  days  of  the  use  of  steam  and  amount  of  coal 
consumed  at  Saxonville  Mills , from  June  17,  1871,  to  Dec.  31,  1874. 


1871.  No.  of  loads  per  day. 

June  17  No.  1 mill  on  steam. .. . 6 

18  Sunday 

19  Engine  stopped  £ day 

M.,  changed  No.  2 
steam.  P.  M.,  engine 


stopped 4 

20  3 

21  3 

22  3 

2  4 . NoV  2 £.*..* .’  *.  *. .’ .’  4 

25  Sunday 20 

26  M 3 

27  Changed  2,  on  steam...  6 2 

28  No.  2 “ ...  5 2 

29  1 steam 6 

30  1 “ 8 


1871.  No.  of  loads  per  day. 

July  1 No.  2 steam 5 

2 Sunday... 33 

3 No.  1 & 2 6 

4 

5 No.  1 6 

6 “ 6 

7 No.  l£  &2 7 

8 “ 7 

9 Sunday 32 

10  No.  1£  & 2 8 

11  “ 8 

12  “ 8 

13  “ 7 

14  7 

15  “ 6 

16  Sunday 44 

17  No.  1 & 2£ 7 


George  W.  Clough 


263 


1871.  No.  of  loads  per  day. 


July  18  No.  1 and  2£  steam 7 

19  “ ....  8 

20  “ ....  7 

21  “ ....  8 

22  “ quarter..  6 

23  Sunday 43 

24  No.  1 & 2 8 

25  “ 8 

26  “ 5 

27  “ 8 

28  “ 8 

29  “ 6 

30  Sunday 43 

31  No.  l£  steam,  2 6 

No.  2 on  steam 

Aug.  1 No.  l£  steam  and  2 7 

2 No.  1 steam  £ 2 7 

3 No.  1 “ £ 2 5 

4 No.  1 & 2 steam 8 

5 “ 1£&2  “ 6 

6 Sunday  39 

7 No.  1 & 2 steam 6 

8 “ “ 7 

9 “ 1£&2  “ 8 

10  “ “ 5 

11  “ 1&2  “ 6 

12  “ l£&2  “ 6 

13  Sunday 38 

14  1 & 2£ 7 

15  1 & 2 7 

16  1 & 2 7 

17  1 & 2£ 7 

18  1 & 2 8 

19  1 & 2 6 

20  Sunday 42 

21  1 & 2 7 

22  1 & 2 8 

23  1 & 2 7 

24  1 & 2 7 

25  1 & 2 8 

26  1 & 2£ 7 

27  Sunday 44 

28  1 & 2£ 7 

29  1 & 2 7 

30  1 & 2 7 

31  1 6 

Sept.  1 No.  1 mill  on  steam ... . 6 

2 “ 2 “ ....  4 

3 Sunday 37 

4 No.  1 & 2£ 7 

5 “ 1&2 7 

6 “ 1 & 2£ 7 

7 “ 1 7 

8 “ 1 & 2 8 

9 “ 1&2£ 5 

10  Sunday 41 

11  No.  1 and  2 8 

12  “ 7 

13  “ 7 

14  “ 8 

15  “ 8 

16  “ 6 

17  Sunday 44 

18  Nos.  land  2£ 8 

19  Nos.  1 and  2 6 


1871.  No.  of  loads  perday. 

C Cattle  show  ^ 

Sept.  20  < Rag  picker  & W.  wool  > 4 
C New  shaft  No.  1 w.  wheel  ) 

21  Nos.  1 and  2 6 

22  “ 7 

23  “ 7 

24  Sunday 38 

25  No.  1 and  2 8 

26  “ 8 

27  “ 7 

29  “ 8 

30  “ 9 

Oct.  1 Sunday 47 

2 No.  1 and  2 7 

3 “ 8 

4 “ 7 

5 “ 7 

6 “ 8 

7 No.  1 and  2| 8 

8 Sunday 45 

9 No.  1 and  2 7 

10  “ 7 

11  No.  1 7 

12  “ 6 

13  Nos.  l£  and  2£ 6 

14  6 

15  Sunday 39 

16  No.  2| 6 

17  No.  1 7 

18  “ 7 

19  “ 7 

20  “ 7 

21  “ 7 

22  Sunday 41 

23  No.  1 and  2£  8 

24  “ 7 

25  “ 7 

26  No.  1 7 

27  No.  land  2£  8 

28  “ 7 

29  Sunday 44 

30  No.  1 8 

31  “ 8 

Nov.  1 No.  1 7 

2 No.  1 8 

3 No.  1 8 

4 “ 8 

5 Sunday 47 

6 No.  1 and  2£ 9 

7 No.  1 and  2 9 

8 No.  1 8 

9 “ 7 

10  No.  1 and  2 9 

11  No.  1 7 

12  Sunday 49 

13  No.  1 11 

14  “ 9 

15  No.  1£ 7 

16  4 

17  ... 4 

18  7 

19  Sunday 42 

20  6 

21  4 

22  4 


264 


Saxonville  Mills 


1871.  No.  of  loads  per  day. 

Nov.  23  6 

24  No.  2h 6 

25  5 

26  Sunday t. . 31 

27  6 

28  9 

29  9 

30  Thanksgiving. 

Dec.  1 10 

2  10 

3 Sunday 44 

4 5 

5 No.  2 10 

6 “ 9 

7 No.  1 10 

8 No.  2 8 

9 “ 10 

10  Sunday 52 

11  No.  2 8 

22  “ 8 

13  No.  l£  and  2k 8 

14  No.  1 10 

16  Nos.  l£  and  2\ 13 

17  Sunday 57 

18  No.  2 9 

29  <<  9 

20  No.  l£  and  2\ 10 

21  No.  1 11 

22  “ 10 

23  “ 17 

24  Sunday 66 

25  Christmas 

26  

27  5 

28  9 

29  9 

30  10 

31  Sunday 33 

1872. 

Jan.  1 7 

2  6 

3 5 

4 6 

5 6 

6 10 

7 Sunday 40 

8 8 

10  No.  2 1 7 

11  “ 2 7 

12  “ 2 9 

13  10 

14  Sunday 49 

15  No.  2h 9 

16  “ 2 8 

17  “ 1 10 

18  “ 1 10 

19  “ li  & 2 h 7 

20  7 

21  Sunday 51 

22  5 

23  7 

24  7 


3872.  No.  of  loads  per  day. 

Jan.  25  No.  2k 8 

26  “ 2 . 9 

27  “ 2 9 

28  Sunday ••••  45 

29  No.  2 10 

30  “ l£  & 2h 9 

31  “ 1 10 

Feb.  1 No.  1 10 

2 “ 1 19 

3 “ 1 14 

4 Sunday 62 

5 No.  1 10 

6 “ 1 9 

7 “ 1 ...14 

8 “ 1 12 

9 “ 2 9 

10  “ 2 10 

11  Sunday 64 

12  No.  Ik  & 2 12 

13  “ 1 10 

14  “ l£ 10 

15  Put  in  Chub  and  Brick’s  Packing.  8 

16  8 

17  9 

18  Sunday 57 

19  No.  2h 8 

20  “ 2 9 

21  “ 2 8 

22  “ 2 h 8 

23  “ 2 10 

24  “ 2 9 

25  Sunday 52 

26  6 

27  No.  2| 10 

28  “ 2 10 

29  No.  lh  & 2k 8 

Mrch.  1 No.  1 -. 10 

2 No.  Ik  & 2k 10 

3 Sunday 54 

4 No.  2 11 

5 “ 1 14 

6 No.  1 & 2 k 17 

7 “ 1 & 2 10 

8 “ “ 12 

9 No.  1 13 

10  Sunday 78 

11  4 

12  6 

13  8 

14  No  2i 9 

15  7 

16  10 

17  Sunday 44 

jg  9 

19  No.  1 ’&  2| 12 

20  “ lk  & 2 11 

21  No.  2 12 

22  “ 2 10 

23  “ 2 10 

24  Sunday 64 

25  No.  2 .' 11 

26  “ 2 8 

27  “ 2 6 


George  W.  Clough 


265 


1872.  No.  of  loads  per  day. 

Mar.  28  No.  2 7 

29  “ 2 8 

30  “ 2 9 

31  Sunday 49 

Apr.  1 No.  2 8 

2 “ 2 11 

3 “ 2 11 

4 East  Day 

5 No.  2 8 

6 “ 8 

7 Sunday 46 

8 No.  2 8 

9 “ 7 

10  “ 6 

11  “ 6 

12  “ 9 

13  “ 6 

14  Sunday 42 

15  No.  2 6 

16  “ 6 

17  “ 5 

18  “ 6 

19  “ 4 

20  “ 5 

21  Sunday 32 

22  No.  2 h 6 

23  4 

24  4 

25  4 

26  4 

27  3 

28  Sunday 25 

29  3 

30  3 

May  1 4 

2 4 

3 4 

4 ....*•••  2 

5 Sunday 20 

6 4 

7 2 

8 5 

9 3 

10  2 

11  0 

12  Sunday 16 

13  6 

14  No.  2 5 

15  “ 5 

16  “ 5 

17  “ 4 

18  “ 3 

19  Sunday 28 

20  4 

21  3 

22  No.  H &2h.. 8 

23  No.  2 5 

24  “ 4 

25  3 

26  Sunday 27 

97 

28  No.  2.  . . . . . . . . 6 

29  3 


1872.  No.  of  loads  per  day. 

May  30  Decoration  Day 

31  2 

June  1 4 

2 Sunday 18 

3 4 

4 No.  2 4 

5 3 

6 3 

7 2 

8 3 

9 Sunday 19 

10  2 

11  3 

12  3 

13  4 

14  No.  2 5 

15  23  3 

16  Sunday 20 

17  No.  2h 5 

18  No.  U & 2£ 6 

19  No.  1 £ 2i 7 

20  No.  1 7 

21  “ 6 

22  “ 5 

23  Sunday 36 

24  No.  1 6 

25  No.  1 & 2^ 6 

26  No.  1 & 2 9 

27  No.  1 5 

28  No.  1 & 2 . . 8 

29  “ 7 

30  Sunday 41 

July  1 No.  1 & 2 6 

2 “ 9 

3 “ 5 

4 July  4th 

5 No.  1&2 6 

6 “ 7 

7 Sunday 33 

8 No.  1&2 7 

9 “ 7 

10  “ 7 

11  “ 7 

12  “ 7 

13  “ 7 

14  Sunday 42 

15  No.  1 & 2 5 

16  “ 7 

17  “ 7 

18  “ 7 

19  “ 7 

20  “ * 5 

21  Sunday 38 

22  No.  1 & 2 6 

23  “ 7 

24  “ 7 

25  “ 7 

26  “ 7 

27  “ 7 

28  Sunday 41 

29  No.  1 & 2 7 

30  No.  1 and  2 7 

31  “ 7 


266 


Saxonyille  Mills 


1872.  No.  of  loads  per  day. 

Aug.  1 No.  1 and  2 7 

2 “ 7 

3 “ 6 

4 Sunday 41 

5 No.  1 and  2 7 

6 “ 7 

7 “ 7 

8 No.  1 7 

9 No.  1 and  2 7 

10  “ 7 

11  Sunday 42 

12  No.  1 and  2 6 

13  “ 7 

14  “ 7 

15  “ 7 

16  “ 7 

17  5 

18  Sunday 39 

19  2 

20  3 

21  3 

22  2 

23  3 

24  2 

25  Sunday 15 

26  No.  2h 3 

27  No.  2 4 

28  No.  1 and  2£ 6 

29  No.  1 and  2 7 

30  No.  1|  and  2 7 

31  No.  2 3 

Sept.  1 Sunday 30 

2  2 

3 4 

4 No.  2} 4 

5 No.  2 3 

6 No.  l£  and  2£ 5 

7 No.  1 7 

8 Sunday 25 

9 No.  1 5 

10  No.  1 and  2 7 

11  “ 7 

12  “ 8 

13  “ 7 

14  No.  U 7 

15  Sunday 41 

16  3 

17  4 

18  Cattle  Show 0 

19  3 

20  4 

21  3 

22  Sunday 17 

23  ISO.  2k 3 

24  3 

25  3 

26  3 

27  3 

28  3 

29  Sunday 18 

30  3 

3 
1 


1872.  No.  of  loads  per  day. 

Oct.  3 3 

4 5 

5 3 

6 Sunday 15 

7 No.  2k 3 

8 3 

9 2 

10  4 

11  3 

12  4 

13  Sunday 19 

14  3 

15  4 

16  4 

17  4 

18  4 

19  3 

20  Sunday 22 

21  3 

22  No.  2k 3 

23  No.  2 6 

24  4 

25  No.  2h 4 

26  3 

27  Sunday 23 

28  6 

29  4 

30  2 

31  4 

Nov.  1 4 

2 5 

3 Sunday 25 

4 4 

5 4 

6 2 

7 4 

8 4 

9 5 

10  Sunday 23 

11  4 

12  4 

13  4 

14  4 

15  4 

16  5 

17  Sunday 25 

18  6 

19  5 

20  4 

21  5 

22  4 

23  6 

24  Sunday 30 

25  6 

26  4 

27  5 

28  Thanksgiving 

29  5 

30  2| 12 

Dec.  1 Sunday 32 

2 9 

3 G 

4 7 


Oct. 


2 


George  W.  Clough 


267 


1872.  No.  of  loads  per  day. 

Dec.  5 6 

6  6 

7 4 

8 Sunday 38 

9 5 

10  No.  2h 13 

11  No.  2 10 

12  “ 10 

13  “ 8 

14  “ 9 

15  Sunday 55 

16  No.  2 8 

17  “ 8 

18  “ 7 

19  “ 8 

20  “ 8 

21  “ 10 

22  Sunday 49 

23  No.  2 12 

24  “ 16 

25  Christmas 

26  No.  2 11 

27  “ 11 

28  No.  1 16 

29  Sunday 66 

30  No.  1 11 

31  “ 1 12 

1873. 

Jan.  1 No.  2 8 

2 “ 8 

3 “ 8 

4 “ 8 

5 Sunday 55 

6 6 

7 9 

8 11 

9 6 

10  9 

11  6 

12  Sunday 47 

13  10 

14  9 

15  6 

16  8 

17  8 

18  6 

19  Sunday 47 

20  8 

21  8 

22  6 

23  6 

24  8 

25  10 

26  Sunday 46 

27  7 

28  8 

29  10 

31  7 

Feb.  1 8 

2 Sunday  

3 8 

4 6 


1873.  No.  of  loads  per  day. 

Feb.  5 9 

6  6 

7 6 

8 9 

9 Sunday  44 

10  5 

11  11 

12  No.  2\ 8 

13  6 

14  8 

15  9 

16  Sunday  47 

17  8 

18  No.  2 7 

19  “ 8 

20  7 

21  9 

22  No.  2 12 

23  Sunday 51 

24  13 

25  No.  2. . . 10 

26  “ 9 

27  8 

28  5 

March  1 7 

2 Sunday 

3 5 

4 7 

5 No.  2- 9 

6 No.  2h 9 

7 9 

8 8 

9  Sunday 47 

10  8 

11  6 

12  6 

13  4 

14  6 

15  6 

16  Sunday 36 

17  8 

18  8 

19  6 

20  6 

21  7 

22  6 

23  Sunday 35 

24  7 

25  7 

26  5 

27  6 

28  7 

29  6 

30  Sunday 38 

31  5 

Apr.  1 4 

2 5 

3 Fast  Day 0 

4 7 

5 8 

6 Sunday 29 

7 4 

8 4 


268 


Saxon ville  Mills 


1873.  No.  of  loads  per  day. 

1873.  No.  of  loads  per  day. 

June  ii  No  1 and  2 - - - - - 9 

10  4 

12  No.  1 and  2A 3 

11  4 

13  No  1 6 

12  7 

14  “ 5 

13  Sunday 27 

14  3 

15  Sunday. 40 

16  No  1 6 

17  “ 6 

16  4 

18  No.  1 and  2| 9 

17  4 

19  No  1 and  2 T . 8 

18  4 

20  “ 7 

19  7 

21  No  1 and  14 6 

20  Sunday 26 

21  4 

22  Sunday 42 

23  No,  l and  2 9 

99!  4 

24  “ 8 

23  4 

25  “ 7 

24  4 

26  “ 7 

25  4 

27  “ 7 

26  6 

28  “ 7 

27  Sunday 26 

28  3 

29  Sunday 45 

30  No.  1 and  2 8 

29  3 

July  1 “ 8 

30  3 

2 “ 8 

M ay  1 3 

3 No.  1 MS  2 8 

2 3 

4 Fourth 

3 6 

5 No.  1 MS  2 6 

4 Sunday 21 

5 3 

6 Sunday 38 

7 No.  1 MS  2 8 

6 3 

8 “ 7 

7 9 

9 “ 7 

8 2 

10  “ 6 

9 3 

11  “ 6 

10  5 

12  “ 7 

11  Sunday 25 

12  No.  14 7 

13  No  1 6 

13  Sunday 41 

14  No.  1 MS  2 7 

15  <•  9 

14  “ 8 

16  “ 7 

15  “ 7 

17  “ 9 

16  “ 5 

18  “ 9 

17  “ 6 

19  No  1 MS 5 

18  Sunday 39 

19  4 

20  Sunday 48 

21  No  1 MS 7 

20  4 

22  “ 7 

21  No.  2f 5 

22  No.  2 5 

23  “ 4 

23  No.  1 MS  2 7 

24  No.  1 MS 6 

25  No  1 MS  2 7 

24  “ 6 

26  “ 7 

25  Sunday 28 

26  4 

27  Sunday 41 

28  No  I MS  2 7 

27  4 

29  “ 8 

28  3 

30  “ 10 

29  5 

31  “ 7 

30  Decoration  Day 0 

31  2 

Aug.  1 No.  IMS  2 9 

2 “ 5 

.Tiino  2 2 

3 Sunday 46 

4 No.  1 MS  2 9 

3 No  2 6 

5 “ 9 

4 “ 6 

6 “ 8 

5 No.  1 5 

6 No.  1 and  24 8 

7 No  1 7 

7 No.  14  MS  24 6 

8 No.  1 MS  2 9 

9 “ 8 

ft  Sunday T t * t • • • • ■ r r , 34 

1 0 Sundav  •••••••••••••••  49 

9 No.  1 6 

10  No.  2 6 

11  No.  1 MS  2 7 

12  “ 9 

George  W.  Clough, 


269 


1873.  No.  of  loads  per 

Aug.  13  No.  1 MS  2 

14  “ 

15  “ 

16  “ 

17  Sunday 

18  No.  1 MS  2 

19  No.  lh  MS  2k 

20  No.  2h 

21  

22  

23  

24  Sunday 

25  

26  

27  No.  2 

28  No.  1£  and  2£ 

29  No.  1 

30  “ 

31  Sunday 

Sept.  1 No.  1 

2  “ 

3 “ 

4 “ 

5 “ 

6 “ 

7 Sunday 

8 No.  1 

9 “ 

10  “ 

11  No.  1 and  2 

12  “ 

13  “ 

14  Sunday 

15  No.  1 and  2 

16  “ 

17  Cattle  Show 

18  No.  1 and  2 

19  No.  1 MS  2 

20  No.  1 and  2 

21  Sunday 

22  No.  1 and  2 

23  “ 

24  “ 

25  “ 

26  “ 

27  “ 

28  Sunday 

29  No.  1 and  2 

30  “ 

Oct.  1 “ 

2  “ 

3 “ 

4 “ 

5 Sunday 

6 No.  1 and  2 

7 No.  1 & 2h 

8 

9 

10  

11  

12  Sunday 

13  No  2 

14  “ 


1873.  No.  of  loads  per  day. 

Oct.  15  No  1 7 

16  No.  1 & 2 8 

17  “ 8 

18  “ 9 

19  Sunday 44 

20  No.  1 7 

21  No.  1 & 2k 4 

22  4 

23  3 

24  5 

25  3 

26  Sunday 26 

27  4 

28  5 

29  4 

30  4 

31  6 

Nov.  1 1 1 

2 Sunday 24 

3 5 

4 No.  2| 7 

5 <«  | g 

6 No.  1 & 2 10 

7 “ 1 & 2i 11 

8 5 

9 Sunday 46 

10  9 

11  5 

12  6 

13  Cut  down  20  per  cent.  5 


14  All  hands  stopped  work 

15  Commenced  work  with 

10  per  cent,  off 10 


16  Sunday 35 

17  9 

18  7 

19  No.  2 9 

20  “ 10 

21  6 

22  7 

23  Sunday 48 

24  7 

25  8 

26  16 

27  Thanksgiving 

28  5 

29  13 

30  Sunday 49 

Dec.  1 8 

2 7 

3 No  2 h 8 

4 “ 5 

5 6 

6 10 

7 Sunday 42 

8 No.  1!  & 21 8 

9 8 

10  5 

11  5 

12  5 

13  10 

14  Sunday 41 

15  4 


day. 

. 7 

. 7 

. 9 

. 6 

. 45 

. 6 

. 6 

. 4 

. 2 

. 2 

. 2 

. 22 

. 3 

. 3 

. 4 

. 8 

. 7 

. 7 

. 32 

. 6 

. 7 

. 6 

. 8 

. 6 

. 5 

. 38 

. 6 

. 7 

, 7 

. 9 

. 7 

. 7 

, 43 

. 9 

. 9 

8 

, 9 

8 

, 43 

9 

8 

7 

9 

8 

7 

46 

8 

8 

8 

8 

7 

7 

46 

8 

7 

5 

3 

5 

3 

31 

5 

7 


270 


Saxonville  Mills. 


1873. 


No.  of  loads  per  day 


1874. 


No.  of  loads  per  day. 

8 

7 
6 
5 

8 


Pec  16  8 

Feb.  17  

17  6 

18  

18  7 

19  

19  7 

20  

20  No  l£  & 2£ 14 

21  

21  Sunday 46 

22  \ 5 

22  Sunday 

23  

23  7 

24  

24  10 

9 S 

25  Christmas 

26  

26  8 

97  

27  No.  l£  & 2k 11 

28  

28  Sunday 41 

29  9 

Mch.  1 Sunday 

9 

30  8 

3 

31  9 

4 

Jan.  1,  1874 4 

5 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 
21 
22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

Feb.  1 
2 

3 

4 

5 

6 

7 

8 
9 

10 
11 
12 

13 

14 

15 

16 


Sunday 


7 
'7 
44 
7 

7 

7 

No.  lh  and  2\ 9 

4 

5 

Sunday 38 

6 

4 

8 

9 

4 

7 

38 
7 
7 
6 
6 
5 
7 

38 


Sunday 


Sunday 


Sunday 


6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 
21 
22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

April  1 
2 

3 

4 

5 

6 

7 

8 
9 

10 
11 
12 

13 

14 

15 

16 

17 

18 

19 

20 


5 

6 

7 

8 

7 

8 

9 
3 
7 
6 

7 

7 

Sunday 39 

4 

8 

8 

6 

8 

12 

Sunday 46 

6 

. 6 

3 

6 

6 

8 

Sunday 35 

7 

8 

6 

6 

7 

6 

Sunday 40 

9 

4 

8 

Fast  day 

4 

11 

Sunday 36 

7 

6 

7 

6 

5 

6 

Sunday 37 

8 

5 

3 

5 

3 

8 

Sunday 32 

4 


1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 


George  W.  Clough 


271 


No.  of  loads  per  day. 

4 

4 

8 

4 

6 

Sunday 30 

6 

4 

8 

5 

5 

4 

Sunday 32 

2 

5 

9 

2 

5 

5 

Sunday 28 

3 

4 

4 

3 

4 

5 

Sunday 23 

3 

4 

3 

3 

4 

4 

Sunday  21 

5 

3 

4 

4 

3 

Decoration  Day. 

Sunday  19 

2 

5 

5 

5 

3 


Sunday 20 

5 

4 

4 

4 

4 

2 

Sunday 23 

4 

4 

5 

4 

4 

3 

Sunday  24 

3 

t 


1874. 
June  24 

25 

26 

27 

28 

29 

30 

July  1 
2 

3 

4 

5 

6 

7 

8 
9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 
21 
22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

Aug.  1 
2 

3 

4 

5 

6 

7 

8 
9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 
21 
22 

23 

24 

25 

26 


No.  of  loads  per  day. 


5 

No.  1 and  2 8 

“ 7 

Sunday 24 

No.  1 and  2 6 

“ 8 

“ 8 

No.  1 and  2 MS 8 

“ 9 

July  Fourth. 

Sunday 25 

No.  1 and  2 8 

“ 9 

No.  1 6 

“ 6 

“ 9 

No.  1 and  2 8 

Sunday 46 

No.  U 6 

“ 5 

No.  1 5 

No.  1 and  2 10 

No.  1 and  2£  8 

No.  1 7 

Sunday 41 

No.  1 7 

“ 7 

No.  1 and  2 8 

“ 7 

“ 9 

“ 8 

Sunday 46 

No.  1 and  2 8 


6 

8 

9 

8 

7 


Sunday 46 

No.  1 and  2 7 

“ 7 

No.  1 MS  and  2 7 

No.  1 and  2 7 

“ 8 

“ 8 

Sunday 44 

No.  2 4 

“ 6 

“ 4 

“ 6 

No.  1 MS 6 

2 

Sunday 28 

No.  1 MS 7 

No.  2 6 

No.  \h  and  2^ 7 

No.  1 MS 6 

“ 6 

4 

Sunday 36 

4 

1M.S 9 


1 M.  S.  2 8 


272 


Saxonville  Mills, 


1874.  No.  of  loads  per  day. 

Aug.  27  1 M.  S 7 

28  No.  li 5 

29  No.  1 &2h 7 

30  Sunday 40 

31  Nos.  1 &2 8 

Sept.  1 “ 9 

2 <<  g 

3 No.  1&  5 

4 No.  1 & 2 7 

5 1 M.  S.  2.. 7 

6 Sunday 44 

7 1 M.  S.  2 7 

8 “ 7 

9 “ 7 

10  “ 7 

11  “ 8 

12  “ 7 

13  Sunday 43 

14  1 M.  S.  2 9 

15  “ 7 

16  “ 8 

17  “ 7 

18  “ 8 

19  1 M.  S 7 

20  Sunday 46 

21  1 M.  S 7 

22  1 M.  S.  2 8 


24  1 M.  S.  2 7 

25  “ 8 

26  “ 7 

27  Sunday 37 

28  1M.  S.  2 7 

29  No.  1 8 

30  No.  1&2| 7 

Oct.  1 No.  1 & 2 8 

2 “ 7 

3 “ 8 

4 Sunday 45 

5 No.  1 & 2 9 

6 “ 8 

7 “ 8 

8 “ 7 

9 “ 7 

10  “ 7 

11  Sunday 46 

12  No.  1 & 2 8 

13  “ 9 

14  “ 8 

15  “ 7 

16  “ 9 

17  “ 8 

18  Sunday % . 49 

19  No.  1 & 2 8 

20  “ 8 

21  “ 9 

22  “ 8 

23  No.  1 M.  S.  2 7 

24  “ 9 

25  Sunday 49 

26  No.  1 M.  S.  2 9 

27  “ 8 

28  “ 7 

29  No.  1 M.  S.  2 9 


1874.  No.  of  loads  per  day. 

Oct.  30  No.  1 M.  S.  2 9 

31  “ 8 

Nov.  1 Sunday 

2 No.  1 M.  S.  2 7 

3 “ 9 

4 “ 10 

5 “ 9 

6 “ 8 

7 No.  1 M.  S 8 

8 Sunday 51 

9 No.  1M.  S.  2 9 

10  No.  1 M.  S 7 

11  “ 8 

12  “ 9 

13  “ 10 

14  No.  1 M.  S.  2 10 

15  Sunday 53 

16  No.  1 &M.  S 12 

17  No.  1 M.  S.  2| 9 

18  “ 2\ 7 

19  No.  1 M.  S.  2 10 

20  “ 10 

21  “ 10 

22  Sunday 58 

23  No.  1 M.  S.  2 10 

24  “ 2i 10 

25  No.  1 M.  S 11 

26  Thanksgiving 

27  No.  1 8 

28  No.  1 & 2| 9 

29  Sunday 48 

30  No.  1 & 2 12 

Dec.  1 “ 11 

2 “ 9 

3 No.  1 7 

4 “ 10 

5 “ 10 

6 Sunday 59 

7 No.  1 8 

8 “ 11 

9 No.  1 Mi  S 2 8 

10  No.  1 M S 2 9 

11  “ 2i 9 

12  No.  1M  S 11 

13  Sunday 56 

14  No.  1 M S 10 

15  No.  1 M S 2| 13 

16  “ 2i 8 

17  No.  1 M S 10 

18  No.  1 M S2 12 

19  “ 15 

20  Sunday 68 

21  No.  1 M S 2 9 

22  “ 10 

23  “ 8 

24  “ 12 

25  Christmas 

26  No.  1 M S 2 13 

27  Sunday 53 

28  No.  1 M S 21 * 9 

29  No.  1 M S 7 

30  “ 9 

31  “ 14 


George  W.  Clough. 


273 


Engineer' s Report  of  Number  of  Days  in  which  Water  Power  was  employed 
at  Saxonville  Mills  for  Consecutive  Years.  e 

Days. 


No.  1 Mill,  from  June  17tli,  1871,  to  December  31st 404 

“ 2 “ “ “ “ “ “ “ 784 

Mills  together  “ “ “ “ “ “ 26 

No.  1 Mill,  from  January  1st,  1872,  to  December  31st 192 

“ 2 “ “ “ “ “ “ “ 1754 

Mills  together  “ “ “ “ “ “ 125 

No.  1 Mill,  from  January  1st,  1873,  to  December  31st 196 

“ 2 “ “ “ “ “ “ “ 210' 

Mills  together  “ “ “ “ “ “ 164 

No.  1 Mill,  from  January  1st,  1874,  to  December  31st 159| 

u 2 “ “ “ “ “ <<  “ 134 

Mills  together  “ “ “ “ “ “ 154 

No.  1 Mill,  from  January  1st,  1875,  to  December  31st 132 

“ 2 “ “ “ “ “ “ “ 152| 

Mills  together  “ “ “ “ “ “ 89 


Engineer's  Report  of  Number  of  Days  in  which  Steam  Power  was  employed 
at  Saxonville  Mill  for  each  month  in  Consecutive  Years. 

MILL,  No.  1. 


1871. 

1872. 

1873. 

1874. 

1875. 

Days. 

Days. 

Days. 

Days. 

Days. 

January. 

4 

4 

22 

February 

94 

204 

March 

8 

84 

April 

May 

k 

54 

June 

24 

10  k 

21 

4 

10 

July 

• 23  k 

26 

26 

25 

26 

August 

24  k 

16| 

174 

17 

26 

September 

24 

7 

25 

24 

26 

October 

23  k 

12 

27 

11 

November 

12k 

3 

24 

34 

December 

7k 

3 

14 

26 

4 

115  k 

CO 

1114 

1474 

1574 

MILL  No.  2, 

• — 

1871. 

1872. 

1873. 

1874. 

1875. 

Days. 

Days. 

Days. 

Days. 

Days. 

January 

8 k 

2 

4 

22 

February 

104 

54 

4 

17 

March 

16 

14 

34 

April 

174 

May 

84 

34 

3 

June 

2k 

74 

154 

4 

10 

July 

19 

26 

22 

164 

18 

August 

22 

20 

15 

15 

17 

September 

27 

64 

16 

214 

134 

October 

104 

24 

11 

27 

10 

November 

3 

4 

4 

14 

4 

December 

n 

144 

24 

134 

174 

91 

1384 

984 

1124 

1354 

274 


Saxonville  Mills. 


Josiah  W.  Blake,  sworn. 

Q.  (By  Mr.  Hodges.)  What  is  your  residence? 

A.  I am  taxed  at  Westboro. 

Q.  What  is  your  occupation  ? 

A.  I am  treasurer  of  the  Saxonville  mills. 

Q.  How  long  have  you  been  treasurer  ? 

A.  Since  1859  or  1860. 

Q.  Do  you  know,  and  if  }rou  know  please  state,  who  makes  the 
purchases  of  the  coal  for  that  establishment? 

A.  I make  them. 

Q.  Where  are  the  books,  and  what  are  the  books  in  which  those 
purchases  appear,  as  kept  in  your  establishment? 

A.  Some  of  them  were  burned  in  the  fire  of  1872,  and  some  are 
at  the  office,  — those  since,  certainly.  Since  I knew  that  this  was 
wanted,  I have  not  had  time  to  overhaul  them.  I may  find  them, 
possibly.  Some  of  our  old  books  were  saved,  and  some  lost. 

Q.  In  what  books  would  the  coal  purchases  appear? 

A.  We  have  a book  in  which  we  enter,  or  intend  to  enter,  all 
the  bills  and  purchases  for  the  mill. 

Q.  State  wliat  is  done  with  those  bills, — how  they  are  dealt  with  ? 

A.  We  file  them.  We  had  not  them  in  the  safe.  Some  of  the 
papers  that  were  in  the  safe  were  very  much  charred  and  injured. 

Q.  Where  was  your  office  at  that  time  ? 

A.  119  Milk  street. 

Q.  Would  the  purchases  of  coal  appear  in  any  other  book  than 
the  book  you  have  named?  I suppose  it  would  be  called  “ Invoice 
Book.” 

A.  The  payment  would  be  entered  in  the  caslj  book. 

Q.  And  as  a payment  for  coal? 

A.  No,  it  does  not  always  appear  so.  We  receive  from  the 
man  we  purchase  of  one  bill,  trusting  the  files  of  bills  for  the  pur- 
pose of  going  into  particulars  if  they  are  wanted. 

Q.  Were  any  of  those  books  or  bills  kept  at  Saxonville? 

A.  None  that  I have  referred  to. 

Q.  Now,  have  you  caused  to  be  made  a statement  of  the  coal, 
so/ar  as  you  can  — going  back  as  far  as  you  can? 

A.  We  have  drawn  off  this  statement  from  1870. 

Mr.  Butler  [interrupting].  As  you  did  not  make  up  this  state- 
ment, you  cannot  testify  about  it  any  more  than  I could.  Did 
you  make  it? 

The  Witness.  No,  sir. 

Q.  (By  Mr.  Hodges.)  I only  ask  you  as  to  what  you  have 
done.  You  have  found  some  means  of  going  back  to  1872? 

A.  This  statement  we  have  taken  from  the  bills  on  file. 

Mr.  Butler.  I object  to  his  testifying  about  any  statement 
which  he  has  not  himself  made. 

Mr.  Hodges.  He  has  been  aiding  in  the  preparation  of  it, 
since  the  time  that  you  said  you  wanted  it. 

The  Witness.  Mr.  William  Butler  [the  clerk  for  the  Saxon- 
ville mills]  read  off  the  bills,  and  I put  them  down. 

Mr.  Hodges.  Some  of  the  bills  prior  to  the  fire  appear  to  have 
been  found  ; or  is  that  which  I now  indicate  to  you  taken  from  the 
book? 


Josiah  W.  Blake. 


275 


Mr.  William  Butler.  That  one  month  previous  to  the  fire 
happened  to  be  in  the  desk.  I was  paying  the  October  bills,  and 
that  is  the  reason  why  they  happened  to  be  there. 

Q.  What  is  there  there  prior  to  November,  1872? 

A.  There  is  for  the  year  1870  and  ’71,  and  from  January,  1872, 
up  to  November. 

Q.  From  what  are  those  taken  ? 

A.  Those  are  taken  from  the  bills  as  far  as  we  get  them,  and 
copies  from  the  book. 

Q.  And  if  the  bills  were  burned  and  were  not  in  the  safe,  then 
it  was  taken  from  the  book  ? 

A.  At  the  time  of  the  fire  I went  to  the  store.  I found  it  was 
going  to  burn  the  store.  I pulled  the  drawers  out  of  the  desk  and 
left  the  desk,  and  sent  the  drawers  with  the  papers  off.  That 
accounts  for  our  saving  some  papers  and  not  others ; the  others 
which  had  been  put  away  in  boxes  I had  not  time  to  save. 

Q.  Now,  what  is  the  form  of  the  books  in  which  any  have  been 
saved  — because  we  want  the  books  here  if  they  are  capable  of 
being  brought  here? 

A.  The  book  at  the  store  has  all  these  items,  but  it  is  mixed 
up  with  all  the  other  purchases  at  the  mills. 

Mr.  Hodges.  Precisely.  But  let  the  gentlemen  have  the  op- 
portunity of  seeing  them.  I will  now  turn  the  witness  over  to 
General  Butler,  and  while  he  is  cross-examining  him  I will  send 
Mr.  William  Butler  for  the  books. 

Mr.  Butler.  I would  not  do  that.  Wait  until  I get  through 
before  you  do  it.  I don’t  think  it  will  then  be  necessary. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  You,  as  treasurer,  contracted  for  a 
quantity  of  coal  to  be  delivered  at  Saxonville  year  by  year? 

A.  Yes,  sir. 

Q.  Making  your  purchases  pretty  much  all  at  one  time,  or  mean- 
ing to? 

A.  Not  always,  sir. 

Q.  Not  all  at  one  time,  but  to  fill  up  your  coal  for  the  year. 

A.  No,  sir. 

Q.  Very  well  then  ; you  make  them  from  time  to  time.  Now 
what  I want  to  know  is  this : Is  there  any  check  kept  at  Saxon- 
ville so  that  you  may  know  whether  you  get  the  coal  there  which 
you  buy? 

A.  We  do  not  reweigh  it,  sir,  at  Saxonville.  We  occasionally 
have  a cargo  weighed  from  the  vessel  into  the  cars. 

Q.  But  don’t  you  in  some  way  contrive  to  get  a check  upon  it 
so  as  to  see  whether  you  get  the  right  amount  ? 

A.  We  send  up  a copy  of  the  bill  of  the  coal,  and  .they  mark  it 
as  received  when  it  is  all  there,  or  supposed  to  be  all  there. 

Q.  They  mark  it  as  received  ? 

A.  Yes,  sir,  they  mark  it  as  received. 

Q.  Do  they  keep  that  copy  ? 

A.  They  do  not.  They  send  that  to  us. 

Q.  Don’t  they  make  any  entry  of  the  coal  received  ? 


276 


Saxonville  Mills. 


A.  I don’t  think  they  do  at  Saxonville,  sir.  They  may  have  a 
memorandum-book.  I will  not  be  sure  of  that.  I am  very  sel- 
dom at  the  mill.  Mr.  Simpson  attends  to  that. 

Q.  Then,  for  aught  you  know  (you  causing  no  weighing  to  be 
made),  somebody  may  make  off  with  two  or  three  cart-loads,  with- 
out its  being  discovered,  in  the  business  of  a great  corporation? 
if  there  is  no  check  kept  upon  it? 

A.  I cannot  say  that  it  is  not  done,  sir. 

Q.  Do  you  believe  that  there  is  no  check  ? 

A.  I have  never  believed  that  it  was  done. 

Q.  You  never  have  believed  that  there  was  any  check  kept? 

A.  I never  have  supposed  that  any  of  the  coal  was  lost. 

Q.  But  do  you  believe  that  there  has  been  any  sort  of  caution 
taken  by  which  loss  could  be  detected,  — by  keeping  the  amount  of 
the  coal  at  Saxonville  — every  possible  precaution? 

A.  Every  possible  precaution  would  be  to  weight  every  pound. 

Q.  I mean  “ any  possible  precaution?” 

A.  Yes,  sir.  I think  so. 

Q.  What  is  it? 

A.  In  counting  the  cars. 

Q.  Do  you  keep  an  account  of  the  number  of  cars  at  Saxon- 
ville ? 

A.  I believe  they  do,  but  I cannot  swear  to  it. 

Q.  But  you  assume  that  a car-load  is  about  so  many  tons? 

A.  If  they  keep  an  account  of  the  cars,  it  is  merely  to  know 
that  we  get  all  the  cars  that  are  loaded  from  a cargo. 

Q.  Well,  it  is  easy  enough  now  to  ascertain  from  the  freight 
how  many  tons  you  have  had  carried  — the  freight  on  the  road  ? 

A.  Yes,  sir. 

Mr.  Hodges.  If  I had  time  I could  go  into  that. 

Q.  I only  wanted  to  see  if  it  was  possible  of  ascertainment. 
Now,  is  that  coal  used  for  other  purposes  besides  the  making  of 
steam  or  the  heating  of  the  mill  ? 

A.  I buy  stove-coal,  which  we  let  the  hands  have  at  cost,  which 
I have  not  taken  out  of  this  list.  The  broken  coal  we  use  for  the 
steam.  Of  course  we  only  use  for  steam  and  heating  a certain 
white-ash  coal.  Of  course  the  same  steam-boilers  heat  the  mill. 

Q.  But  you  buy  considerable  more  coal  for  the  hands,  and  Mr. 
Simpson,  I suppose,  uses  it  for  his  greenhouses  and  other  pur- 
poses ? How  is  that  checked  ? 

A.  That  is  arranged  up  there.  I have  no  control  of  that.  I 
don’t  know  for  what  it  is  used,  or  how  much  is  used. 

Q.  How  much  did  your  new  dam  cost? 

A.  That  was  built  before  I was  there,  sir,  and  I have  not  the 
knowledge  or  the  figures. 

Q.  Has  that  not  been  raised? 

A.  It  was  raised  four  feet  — I think  it  was  four  feet.  I cannot 
give  you  thewyear,  but  it  was  before  1859. 

Q.  Don’t  your  books  at  Saxonville  show  that? 

A.  That  was  raised,  I think,  before  the  fire.  I am  not  certain 
whether  these  books  that  were  saved  will  show  it  or  not. 

Q.  That  expenditure  was  made  at  Saxonville? 


Josiah  W.  Blake. 


277 


A.  Yes,  sir  ; it  was  made  at  Saxonville. 

Q.  Don’t  the  Saxonville  books  show  that  ? 

A.  I cannot  say,  sir. 

Q.  I wish  you  would. 

A.  I can  ascertain. 

Q.  What  did  your  Corliss  engine  cost? 

A.  That  was  put  in  before  I was  there,  and  I have  no  knowl- 
edge. 

Q.  Won’t  the  books  show? 

A.  I think  they  will,  if  we  have  them. 

Q.  I wish  you  would  let  us  know  what  it  cost  — from  the  orig- 
inal data.  What  did  your  boilers  cost? 

A.  There  has  been  one  put  in  while  I was  there,  and  the  others 
before. 

Q.  There  has  been,  then,  but  one  new  boiler  since  1860? 

A.  I think  not. 

Q.  That  would  be  sixteen  years.  You  would  not  want  to  put 
in  very  much  for  the  depreciation  of  that.  I would  like,  if  you 
can,  to  have  you  give  me  the  cost  of  that  engine. 

Mr.  Hodges.  You  sent  it  to  me  once,  Mr.  Blake.  [Hands  wit- 
ness a letter.] 

Mr.  Butler.  I would  like  to  have  the  original  data,  unless  Mr. 
Blake  can  swear  that  he  made  this  entry  which  I here  find. 

The  Witness.  When  Mr.  Hodges  asked  me  for  the  cost  I said  I 
could  only  give  a rough  estimate  of  the  cost  of  the  machinery, 
“ as  below.” 

Mr.  Butler.  That  was  estimated ; I don’t  want  anybody’s 
estimate  ; I have  asked  for  the  bill. 

Q.  (By  Mr.  Hodges.)  From  what  did  you  take  that  amount 
which  is  given  in  the  letter  which  you  wrote  to  me,  which  you  now 
have  in  your  hand?  Was  it  taken  from  the  books  or  was  it  an 
estimate  made? 

A.  I think  it  was  an  estimate  made  by  Mr.  Hill,  or  the  machin- 
ist who  has  the  care  of  the  engine,  etc. 

Mr.  Butler.  I thought  every  well-regulated  manufactory  in 
the  State  knew  what  the  cost  of  their  steam  engine  was. 

The  Witness.  I have  given  it  here  as  “ Engine  and  setting, 
$14,000.” 

Mr.  Butler.  You  need  not  state  what  is  in  the  letter.  Let 
me  see  it  before  you  put  it  in  in  that  way. 

[Mr.  Hodges  hands  the  letter  to  Gen.  Butler,  who  reads  it.] 

Mr.  Butler.  I object  to  it.  It  is  an  estimate  not  made  from 
any  books. 

Mr.  Hodges.  I shall  not  press  that  it  go  in.  I hand  it  to  the 
witness  as  the  best  information  he  could  give  me  at  that  time. 

The  Witness.  Any  original  bills  that  we  have  are  at  your 
disposal. 

Mr.  Butler.  I would  be  very  glad  to  see  Mr.  Corliss’s  receipt, 
or  if  you  will  write  and  get  his  bill. 

Mr.  Hodges.  I tell  you  that  cannot  be.  The  engine  was  not 
bought  of  Mr.  Corliss.  Whom  it  was  bought  of  I don’t  know ; 
but  it  was  bought  here.  I have  no  idea  who  it  was.  You  can 
have  it,  and  you  shall  have  it,  if  it  can  be  found. 


278 


Saxonville  Mills. 


The  Witness.  Such  of  our  papers  as  were  saved  were  in  a 
good  deal  of  confusion.  Not  supposing  they  would  ever  be 
wanted,  they  have  never  been  sorted  out. 

Mr.  Butler.  It  is  not  for  me  to  advise  a gentleman  of  your 
experience,  but  Saxonville  and  Boston  will  not  both  burn  down  at 
the  same  time,  and  if  you  had  two  sets  of  books  how  convenient 
it  would  be ! 

Mr.  Hodges.  Will  you  have  Mr.  Blake  go  up  and  get  the  books  ? 

Mr.  Butler.  I don’t  care  for  them. 

Mr.  Hodges.  You  asked  us  yesterday  in  respect  to  the  product 
of  the  mill,  and  I told  you  I thought  it  was  gone.  But  it  seems 
that  some  special  sheets  were  kept,  and  I have  had  an  abstract 
made  of  them,  and  there  is  the  list,  with  Mr.  Blake  to  speak  about 
it,  if  you  desire, — a list  of  the  blankets,  etc.,  that  we  have  made 
at  the  mill  — made  in  1859. 

[Mr.  Butler  takes  the  list  and  examines  it.] 


Memorandum  of  Saxonville  Out-Turn. 


SINGLE 

BLANKETS. 

YARDS 

PIECE 

GOODS. 

POUNDS 

SALE 

WORSTED. 

POUNDS 

YARNS. 

POUND 8 
BOX 

WORSTED. 

1859 

104,072 

70,407 

2 

430,901 

288,633 

135,987 

1860 

112,237 

71,285 

1 

396,372 

405,986 

184,161 

1861 

129,133 

70,706 

2 

158,601 

132,322 

108,003 

1862 

92,685 

358,212 

1 

201,942 

96,247 

175,318 

1863 

135,437 

191,233 

2 

275, 3212 

75,911 

206,337 

1864 

120,208 

320,570 

. . 

273,884 

44,367 

250,192 

1865 

213,526 

197,138 

1 

245, 3441 

159,608 

277,202 

1866 

182,072 

41,110 

2 

348,002 

145,346 

314,515 

1867 

179,125 

50,867 

2 

254,223 

194,457 

310,768 

1868 

93,411 

44,619 

. . 

172,664 

293,601 

363,672 

1869 

157,680 

51,034 

2 

276, 4693 

247,515 

407,242 

1870 

197,152 

13,372 

3 

257, 5842 

218,183 

444,788 

1871 

200,071 

5,475 

2 

193,267 

236,376 

509,589 

1872 

216,710 

2,985 

. . 

127,131 

185,163 

671,177 

1873 

219,783 

2,507 

1 

188,331 

142,482 

583,704 

1874 

217,787 

1,500 

2 

150,667 

204,570 

650,273 

1875 

218,051 

848 

2 

74,728 

181,336 

679,364 

Mr.  Butler.  I think  we  will  have  this  in,  sir. 

Q.  (By  Mr.  Hodges.)  That  is  taken  from  the  abstracted 
sheets  that  you  saved  yourself,  Mr.  Blake,  at  the  time  of  the  fire? 
A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  Why  did  you  begin  at  1859  ? 

A.  That  is  when  the  present  corporation  commenced. 

Mr.  Hodges.  The  other  was  another  corporation,  and  its  books 
have  never  been  in  the  keeping  of  this  corporation. 


William  Butler,  sworn. 

Q.  (By  Mr.  Hodges.)  Where  do  you  reside? 

A.  At  Medfield,  Mass. 

Q.  What  is  your  occupation? 

A.  I am  clerk  for  the  Saxonville  mills. 

Q.  In  reference  to  the  coal  as  sent  to  the  Saxonville  mill,  — 
what  is  that  which  I now  show  you  ? 


William  Butler, 


279 


Date. 

Tons. 

Amount. 

1870. 

April  6 

274 

1,635  14 

March  6 

241 

1,626  00 

July  15 

258 

1,707  96 

16 

250 

1,670  00 

November  9 

207 

1,308  24 

1,230  Tons.  $7,947  34 

1871. 

May 

50 

487  50 

315 

2,472  75 

June 

379 

2,558  25 

August 

230 

1,796  00 

September 

431 

3,331  63 

December 

170 

1,287  00 

1,575  Tons.  11,933  13 

1872. 

January 

224 

1,641  25 

April 

40 

360  00 

May 

386 

2,505  64 

September 

484 

2,786  86 

October 

460 

2,875  00 

November 

10 

76  15 

1,604  Tons.  10,244  90 

1873. 

June  9 

427 

2,942  92 

514 

2,467  49 

July 

848 

5,639  20 

August 

478 

3,298  20 

402 

2,773  80 

2,669  Tons.  17,121  61 

1874. 

April 

286 

1,887  60 

452 

3,051  00 

March 

580 

3,799  00 

April 

450 

2,947  50 

May 

317 

2,092  22 

September 

431 

2,884  70 

2,516  Tons.  16,662  02 

1875. 

February 

97 

827  36 

March 

168 

1,391  73 

335 

2,471  00 

May 

138 

1,012  19 

September 

673 

4,206  25 

73 

519  23 

October 

82 

579  86 

August 

331 

2,337  43 

October 

505 

2,398  75 

November 

500 

3,275  00 

November 

570 

3,790  05 

3,472  Tons.  22,809  30 

280 


Saxonyille  Mills. 


A.  That  is  an  abstract  from  the  bills  — made  up  from  the  books 
and  bills  that  I had  in  the  office.  To  the  best  of  my  knowledge  it 
is  correct. 

Cross-examination, 

Q.  (By  Mr.  Butler.)  Do  you  know  what  kind  of  coal  it  was? 
A.  It  was  broken  coal ; it  was  steamer  coal,  — large  coal, — 
what  they  call  broken  coal ; it  was  for  steam  purposes. 

Mr.  Hodges.  This  is  the  same  paper  that  Mr.  Blake  had? 
[Gen.  Butler  takes  the  paper  and  examines  it.] 

Q.  What  have  you  paid  for  coal  this  year,  sir? 

A,  Mr.  Hodges  sent  up  to  me  for  this  memorandum,  and  I had 
it  completed  as  far  as  that ; I finished  that  one  year. 

Q.  You  have  not  got  on  the  amounts  since  November,  1875? 

A.  No,  sir  ; I was  at  work  on  it  when  Mr.  Hodges  sent  for  me. 
Q.  What  do  you  pay  for  coal  this  year? 

A.  Well,  Mr.  Blake  buys  the  coal ; I think  he  could  state  better. 
Mr.  Hodges.  He  is  here,  sir. 

Q.  Are  you  sure  that  these,  since  1872,  are  all  the  purchases 
that  you  made? 

A.  I say  that  is  the  best  of  my  knowlege  ; I have  not  checked 
it  off,  General. 

Q.  I wish  you  would  go  over  it  and  check  it  off. 

Commissioner  Russell.  Mr.  Hodges  put  it  in  this  form.  Bet 
him  go  over  it  and  check  it  off,  and  if  there  is  any  correction  he  will 
report  it,  so  that  we  may  not  be  hindered  by  waiting  for  that. 

Mr.  Butler.  You  need  not  wait  for  that. 

Josiah  W.  Blake,  recalled. 

Cross-examination  resumed. 

Q.  (By  Mr.  Butler.)  Have  you  bought  your  coal  for  the  com- 
ing winter  for  your  mill? 

A.  No,  sir. 

Q.  What  did  you  pay  for  the  last? 

A.  I think  it  was  $5.25,  delivered  on  the  cars. 

Q.  What  is  the  freight  to  Saxonville? 

A.  They  charge  us,  I think,  81.20,  and  then  return  us  20  cents 
at  the  end  of  the  season. 

Q.  So  that  it  came  to  a dollar? 

A.  Yes,  sir  ; we  estimate  it  at  a dollar. 

Re-direct. 

Q.  (By  Mr.  Hodges.)  Does  that  go  to  Saxonville  or  Boston? 
A.  To  Saxonville. 

Q.  It  makes  $6.25  to  Saxonville? 

A.  Yes,  sir. 

Mr.  Hodges.  I think  that  constitutes  my  case,  General  Butler. 
Mr.  Butler.  Are  you  not  going  to  prove  about  Farm  pond  ? 
Mr.  Hodges.  No,  sir. 


William  Butler. 


281 


Mr.  Butler.  Do  you  claim  any  right  to  flow  Farm  pond  ? 

Mr.  Hodges.  Yes,  sir. 

Mr.  Butler.  I think  you  had  better  prove  it  then. 

Mr.  Hodges.  We  claim  the  title  only  growing  out  of  the  own- 
ership of  that  quarter  of  an  acre.  Now,  instead  of  making  a con- 
troversy here  about  the  title  to  that,  let  us  keep  whatever  damages 
are  allowed  for  Farm  pond  separate,  and  then  if  you  do  not  say 
that  we  have  got  a title  to  it  I shall  not  press  it.  I believe  we 
have  a complete  title  to  it. 

Mr.  Butler.  All  I can  say  is  that  I do  not  see  as  you  have  any 
title  or  any  right  to  flow  Farm  pond  for  a minute.  This  is  the 
point  I wish  to  bring  out : Assume,  as  you  might  well,  that  you 
own  a dam  down  below  Farm  pond.  That  does  not  give  you  a 
right  to  flow  Farm  pond  and  use  it  as  a reservoir  at  all.  Now  my 
brothers  claim  that  they  have  a right  to  flow  Farm  pond. 

Mr.  Hodges.  I agree.  That  is  exactly  my  position  now.  If 
by  the  laws  of  Massachusetts  we,  having  the  outlet  of  Farm  pond, 
have  not  the  right  to  flow  it  and  accept  the  penalty  for  flowing  it,  and 
that  right  is  not  worth  anything,  then  the  property  is  good  for 
nothing. 

Mr.  Butler.  You  paying  the  damages? 

Mr.  Hodges.  Yes,  sir. 

Mr.  Butler.  That  is:  you  think  you  can  settle  with  them 
cheaper  than  you  want  to  settle  with  us. 

Mr.  Hodges.  No,  sir.  I think  the  right  to  put  a dam  there  and 
pay  damages  is  something.  The  size  of  the  pond  is  in  evidence. 
It  was  put  in  in  the  Essex  Company’s  case. 


282 


Saxonville  Mills. 


CLOSING  AEGUMENT  OF  HON.  B.  F.  BUTLEE 
FOE  THE  EESPONDENT. 

Although,  as  far  as  I am  instructed,  may  it  please  your 
Honors,  we  see  no  occasion  to  put  in  any  testimony,  we  by 
no  means  agree  to  some  of  the  facts  attempted  to  be  set  up 
here.  I have  no  doubt  that  the  taking  of  this  water  will  be 
a substantial  damage  to  the  proprietor  of  Saxonville  fac- 
tory, at  certain  seasons  of  the  year.  The  first  question  is, 
What  are  the  petitioner’s  rights  ? When  we  get  that,  then 
we  will  come  to  the  measure  of  his  damages.  And  I claim 
that  all  the  right  that  he  has  is  to  the  natural  run  of  the 
stream,  uninflated  by  any  artificial  erections.  And  upon 
that  I would  like  the  opinion  of  the  commissioners.  If  they 
differ  with  me  upon  that  proposition,  that  proposition  I desire 
to  take  to  the  courts.  To  explain  precisely  what  I mean, 
gentlemen,  I mean  this  : That  if  the  amount  of  water  run- 
ning on  the  day  we  took  the  water  was  increased  by  any 
artificial  means,  not  within  the  control  and  ownership  of  Mr. 
Simpson,  that  increase  does  not  belong  to  him,  and  to  that 
increase  he  has  no  right.  For  instance,  looking  on  that 
map  of  the  Concord  river  and  its  water-shed,  you  will  see 
the  reservoir  built  by  the  city  in  the  town  of  Hopkinton. 
The  dark  blue  was  the  original  pond  which  was  spoken 
about  in  the  other  case.  The  light  blue  was  that  given  by 
the  city  as  compensation  for  taking  the  Cochituate  lake  out. 
And  so  whenever  the  water  is  raised  by  an  artificial  dam,  so 
that  its  flow  is  the  greater  in  a dry  time  (when,  alone,  as  I 
claim,  will  the  Saxonville  dam  be  injured),  then  and  in 
that  case,  Mr.  Simpson  has  no  right  to  it,  because  he  has 
no  claims  upon  the  persons  owning  it  to  keep  up  the  dam 
for  an  hour.  They  have  a right  to  let  it  go  at  any  time. 
They  have  a right  to  use  it  as  they  please,  provided  they  do 
not  use  it  to  his  detriment  in  this  way ; they  have  no  right 
to  store  up  the  water  in  great  quantity,  and  let  it  down  to 
flood  him ; they  have  no  right,  undoubtedly,  to  keep  it  back 
to  such  an  extent  that  he  would  not  get  any  of  it.  But 
within  those  rights,  he  has  no  control  over  them.  They 
have  no  right  to  keep  it  back  to  his  injury ; they  have  no 
right  to  let  it  down  to  his  injury ; and  he  has  no  right  to 
claim  from  them  that  they  shall  regulate  it  for  his  benefit. 
Therefore,  he  cannot  claim  from  the  city  any  pay  for  that. 
That  is  what  I mean  by  the  right  to  the  natural  run  of  the 
stream.  A stream  in  a state  of  nature  coming  to  him,  they 


Argument  of  Gen.  Butler. 


283 


have  taken,  — because  that  stream  is  Sudbury  river.  We, 
I agree,  are  to  make  him  whole  (under  the  limitations  to 
which  I will  call  your  Honors’  attention) , so  far  as  we  can 
make  him  whole,  for  that  which  he  stores  himself,  and  for 
that  which  he  has  the  capacity  for  storing  himself,  without 
injury  to  anybody  else.  I deny,  utterly,  that  there  is  any 
claim  of  damages  against  us  for  what  he  might  do  hereafter 
by  damaging  somebody  else,  which  is  the  claim  set  up  here. 
I deny  that  there  is  any  tangible  money  value  that  can  be 
put  in  the  claim  of  damages,  for  a right  to  damage  some- 
body else,  and  pay  those  damages,  and  then  be  paid  for 
what  he  would  have  left  over  after  he  has  done  that.  I 
think  that  is  a little  too  shadowy. 

What  he  has  done  and  paid  for  I agree  that  he  has  a right 
to.  That  is  his  own.  But  I ask  you  especially  to  rule  upon 
this  question,  and  that  disposes  of  Farm  pond.  Because  he 
owns  the  dam  at  the  outlet  of  the  pond  (which  dam  does 
not  flow  it  now  and  never  has  flowed  it) , I utterly  deny  that 
any  right  which  he  would  thereby  have  to  flow  Farm  pond 
(by  paying  the  damages)  is  a valuable  right,  for  which  he 
should  be  paid.  And  you  see  where  you  would  be  if  you 
undertook  to  give  damages.  How  do  you  know  what  the 
damages  of  flowing  Farm  pond  would  be  ? For  illustration 
simply  — I understand  that  if  you  flow  Farm  pond  two  feet, 
you  would  flow  all  South  Framingham.  From  the  way  that 
the  land  lies,  1 have  no  doubt  that  you  would  flow  the 
suburbs  of  South  Framingham.  It  is  of  no  consequence 
whether  that  is  so  or  not,  — it  is  an  illustration  merely  ; and 
the  fact  that  this  mill  has  been  running  now  for  forty  years, 
and  that  there  has  been  great  want  of  water,  and  that  they 
put  in  three  steam  engines  rather  than  flow  Farm  pond,  is  a 
pretty  strong  circumstance  to  show  that,  in  the  judgment  of 
the  owners  simply,  it  was  much  more  economical  to  put  in 
engines  than  to  flow  Farm  pond,  and  that  that  right  is  a 
valueless  one.  Therefore  I am  not  troubled  on  that  score  at 
all. 

First,  I deny  that  there  is  any  evidence  of  any  right  at  all 
to  flow  Farm  pond ; second,  I deny  that  if  there  were  that 
right  it  would  be  a valuable  right ; and  thirdly,  I deny  that, 
however  valuable,  it  is  a kind  of  right  which  should  be  put 
here  in  damages. 

Upon  this  question,  gentlemen,  of  the  right  in  other 
people  to  the  storage  of  water,  I have  a case  from  the 
Law  Times  Reports,  Vol.  XIII,  new  series,  page  74,  — 
" Gaved  vs.  Martyn,  — from  which  I will  read  : — 

"The  plaintiff,  being  desirous  of  increasing  the  supply  of 
watej*  to  the  leat  mentioned  in  the  preceding  paragraph, 


284 


Saxonville  Mills. 


continued  the  leat  to  a point  in  the  course  of  a natural 
stream  or  brook,  opposite  to  where  refuse  water  was  dis- 
charged by  tinners,  from  their  mine,  by  a drain  made  from 
the  mine  to  the  brook.  He  placed  a launder  or  trough 
across  the  brook  and  intercepted  the  water  from  the  mine, 
carrying  it  across  the  brook  without  allowing  it  to  mix  with 
the  water  of  the  brook,  and  thence  conducting  it  by  the  leat 
to  his  works.  He  used  the  water  in  this  manner  for  more 
than  twenty  years.” 

That  is  to  say,  that  the  supply  was  entirely  at  the  will  of 
the  parties  who  owned  the  mine  and  who  were  pumping  it, 
and  they  might  or  might  not  continue  ; that  he  could  not 
prescribe  rightly  by  haying  simply  used  it  at  a place  where 
it  flowed  into  the  brook,  and  put  a trough  to  flow  it  across 
to  his  brook  ; that  it  was  not  a thing  that  he  could  prescribe. 
He  did  not  undertake  to  prescribe  against  the  tinners,  but 
did  undertake  to  prescribe  against  the  man  who  owned  the 
brook  which  .he  had  used  for  twenty  years,  and  also  against 
the  man  through  whose  property  it  ran,  — which  made  it 
still  stronger. 

There  is  another  case  which  I will  take  this  opportunity  to 
cite,  from  the  Law  Times  Reports,  Yol.  IV.,  new  series, 
page  87,  — the  case  of  the  Medway  Navigation  Company 
against  the  Earl  of  Romney.  I ventured  to  say  to  you 
the  other  day  that  a superior  right  to  use  of  mills  was  the 
right  of  navigation.  (I  have  insisted,  and  shall  insist  by  and 
by  still  more  strongly,  that  the  first  right  is  that  of  the  pub- 
lic to  use  the  water  for  drinking  purposes,  — I don’t  care 
where  they  live,  it  they  can  get  at  the  water.)  Now,  this 
case  was  right  the  other  way.  The  Act  of  Geo.  II.  had 
given  a right  to  the  river  for  public  navigation,  and  the  ques- 
tion was  whether  anybody  had  any  right  to  take  any  water 
out  of  that  river  for  mills.  The  report  says  : — 

"It  was  held  that  upon  the  true  construction  of  the  13 
Geo.  II.  c.  26,  s.  2,  the  plaintiffs  had  not  such  a limited  right 
in  the  river  as  a private  grant  of  the  river  might  have  con- 
veyed ; but  that  it  created  such  a property  and  interest 
in  the  water  which  was  interfered  with  by  the  obstruction  of 
it  for  the  purposes  to  which  it  was  applied  by  the  defend- 
ants, which  purposes  were  more  extensive  than  those  for 
which  a riparian  proprietor  could  insist  upon  appropriating  a 
stream,  as  it  passed  his  land,  and  that  it  was  not  necessary 
that  it  should  be  an  actual  damage  to  the  navigation,  because 
the  Legislature  intended  to  give  the  company  such  an  inter- 
est in  all  the  water  of  the  river,  for  the  purposes  of  navigar- 
tion,  as  was  interfered  with  by  the  obstruction  of  any  part 
thereof.” 


Argument  of  Gen.  Butler. 


285 


And  the  effect  was,  that  " Since  the  passing  of  the  said 
acts,  persons  desirous  of  erecting  mills  along  that  part  of 
the  Medway  to  which  these  acts  relate,  have  always 
previously  applied  to  the  plaintiffs  for  permission  to 
use  the  water  of  the  river  for  the  purposes  of  their  mills. 
Such  permission  has  sometimes  been  granted,  and  sometimes 
refused,  by  the  plaintiffs ; but  it  does  not  appear  that  the 
water  has  been  used  without  the  permission  of  the  plaintiffs 
for  any  mill  erected  since  the  passing  of  the  said  acts.” 

And  a similar  question  was  argued  on  the  demurrer  — 
whether,  without  showing  some  appreciable  damage,  that  ac- 
tion could  be  maintained ; and  they  held  that  for  the  pur- 
poses of  navigation  they  must  not  interfere  with  it  at  all,  — 
that  it  was  not  a question  which  could  be  in  that  way  dis- 
cussed. 

Now,  then,  Mr.  Simpson,  or  the  Saxonville  Company,  the 
plaintiffs  here,  having  a right  to  the  natural  stream  of  Sud- 
bury river,  the  question  is  "How  do  we  injure  them?”  It 
is  said  that  we  take  all  the  water  of  Sudbury  river,  and 
therefore  we  must  pay  for  it  all.  There  are  two  exceptions, 
however,  showing  that  the  Legislature  did  not  intend  that  we 
should  pay  for  it  all.  The  first  is,  that  we  are  to  let  a mil- 
lion and  a half  of  gallons  run  every  day,  wet  or  dry.  In  the 
second  place,  we  are  not  to  stop  the  water  of  the  Sudbury 
river  at  any  time  when  the  water  is  flowing  over  the  dam  of 
Lake  Cochituate.  When  Lake  Cochituate  is  full,  Sudbury 
river  must  be  allowed  to  flow  in  its  natural  channel . 

I will  read  from  the  act,  so  that  I may  state  it  with  perfect 
accuracy.  Section  four  is  as  follows  : — 

" Nothing  contained  in  this  act  shall  be  so  construed  as  to 
authorize  the  City  of  Boston  to  reduce  the  water  in  Sudbury 
river  below  a sufficient  height  to  maintain  at  all  times  a run- 
ning stream  therein  which  shall  flow  at  least  one  and  a half 
million  gallons  a day  for  each  and  every  day  in  the  year,  or 
to  draw  from  Farm  pond  or  Sudbury  river  into  Lake  Cochit- 
uate when  the  water  runs  over  the  dam  at  Lake  Cochituate, 
or  to  prevent  the  inhabitants  of  the  towns  of  Framingham, 
Ashland,  Southboro’,  Hudson  and  Westboro’,  from  taking 
from  the  Sudbury  or  Assabet  rivers,  or  Farm  pond,  so  much 
of  the  waters  hereby  granted,  as  shall  be  necessary  for  ex- 
tinguishing fires  and  for  all  ordinary  domestic  and  household 
purposes,  and  for  the  generation  of  steam,  or  for  cutting  and 
carrying  away  ice  from  said  pond  ; or  as  to  prevent  the  Bos- 
ton and  Albany  R.  R.  Company,  or  the  Mansfield  and  Fram- 
ingham Co.,  or  the  Boston,  Clinton  and  Fitchburg  Co.,  from 
taking  water  from  Farm  pond  for  use  in  locomotive  and  rail- 
road engines,  or  for  other  railroad  purposes,  under  such 


286 


Saxonville  Mills. 


regulations  from  the  Council  of  the  City  of  Boston  as  may 
he  essential  for  the  preservation  of  the  purity  of  the  same.” 

So  that  practically  we  are  to  let  it  run, — for  we  cannot 
draw  it  into  Lake  Cochituate  except  when  the  water  is  below 
the  top  of  the  dam.  That  was  evidently  got  as  a concession 
by  the  mill-owners,  — by  the  Saxonville  people  especially; 
and  the  provision  about  the  million  and  a half  gallons  was 
another  concession.  And  my  principal  use  of  those  two  is 
to  show  that  the  Legislature  meant  that  we  should  not  pay 
any  damages  beyond  what  was  the  actual  damage ; in  other 
words,  that  we  should  not  pay  for  any  water  taken  from  Sud- 
bury river  when  everybody  had  enough  for  all  that  they 
would  use,  or  were  accustomed  to  use,  or  could  use. 

Leaving  out,  for  the  moment,  the  consideration  of  the 
question  of  using  it  night  and  day,  suppose,  for  illustration, 
that  six  months  in  the  year  Saxonville  has  all  that  it  can  use 
without  flowing  upon  other  people,  and  that  the  other  six 
months  it  had  not  any  whatever ; why,  then,  I should  think 
the  measure  of  damages  should  be  that  only  that  was  to  be 
considered  which  was  taken  during  the  six  months  that  they 
had  not  any.  Inother  words,  it  must  be  a perceptible  dam- 
age to  them ; and  it  is  not  perceptible  when  the  water  is 
running  to  waste  over  their  dam,  without  the  capacity  of  stor- 
age. The  Legislature  meant  this  to  be  a practical  and  not  a 
speculative  question.  The  courts  deal  with  it  as  a practical 
and  not  a speculative  question.  All  water  rights  are  practical 
and  not  speculative  questions.  Our  court  has  so  decided; 
the  English  courts  have  so  decided. 

Now,  in  the  sixth  of  Barnwall  and  Cresswell,  it  came  up  in 
another  view,  — in  the  case  of  " The  King  vs.  Russell,” 
which  was  a case  very  much  considered.  It  was  where  Mr. 
Russell,  the  defendant,  had  set  up  certain  " coal  stakes  ” (coal 
piers,  as  we  should  say,  I suppose)  in  the  river.  Of  course, 
they  interfered  in  some  degree,  or  in  a very  small  degree, 
with  the  navigation.  There  was  an  indictment  brought 
against  Mr.  Russell  for  a nuisance,  because  they  said  that 
any  interference  with  navigable  water  without  the  right  of 
the  king  was  not  to  be  tolerated,  and  was  a crime ; and  that 
question  was  in  discussion  before  the  court.  There  were  two 
things  then  taken  into  consideration,  the  first  of  which  will 
appear  as  I read  from  page  590  : — 

"Where  there  is  a space  of  water  of  very  considerable  extent, 
some  part  may  be  most  usefully  applied  for  purposes  of  com- 
merce, and  that  which  is  so  applied  may  be  over  and  above 
that  which  is  sufficient  for  navigation  ; and  where  a great 
public  benefit  results  from  the  abridgment  of  the  exercise  of 
the  rights  of  passage,  the  great  public  benefit  makes  that 


Argument  of  Gen.  Butler. 


287 


abridgment  no  nuisance,  but  a useful,  beneficial  and  proper 
purpose.” 

The  only  other  point  in  the  case  is,  that  they  held  that  that 
public  benefit  would  be  the  reduction  of  the  price  of  coal 
(which  was  at  Newcastle)  in  London ; that  it  need  not  be 
a benefit  to  the  people  of  Newcastle  immediately,  but  that 
the  benefit  might  result  elsewhere,  — as  the  public  benefit 
results  here,  — a benefit  to  the  people  of  Boston,  and  a det- 
riment to  the  people  of  Saxonville,  more  or  less. 

But  my  proposition  is  now  simply,  that  where  the  taking 
of  the  water  for  a public  purpose  does  no  appreciable  dam- 
age, nothing  is  to  be  paid.  True,  Mr.  Simpson  has  the  right, 
in  one  view,  to  all  the  water  of  Sudbury  river,  — that  which 
runs  when  there  is  a thousand  million  of  gallons  running 
over  in  a second,  as  in  a freshet,  and,  as  at  some  times,  when 
there  is  not  enough  water  there  to  water  his  horse,  but  would 
be  if  the  river  was  in  its  natural  condition.  But  that  is  not 
to  be  paid  for,  — that  which  is  not  appreciable  as  damages 
is  not  to  be  paid  for. 

Now,  that  was  held  in  our  own  courts,  in  the  tenth  of 
Cushing,  — "Elliot  vs.  Fitchburg  R.  R.,”  p.  191.  The 
court  says : — 

"The  instruction  requested  by  the  plaintiff  is,  we  think, 
founded  on  a misconception  of  the  rights  of  riparian  proprie- 
tors in  water-courses  passing  by  or  through  their  lands.  It 
presupposes  that  the  diversion  of  any  portion  of  the  water 
of  a running  stream,  without  regard  to  the  fitness  of  the 
purpose,  is  a violation  of  the  right  of  every  proprietor  of 
land  lying  below  on  the  same  stream,  so  that,  without  suffer- 
ing any  actual  or  perceptible  damage,  he  may  have  an  action 
for  the  sole  purpose  of  vindicating  his  legal  rights. 

" The  right  to  flow  water  is  now  well  settled  to  be  a right 
incident  to  property  in  the  land  ; it  is  a right  publici  Jinis,  of 
such  character  that,  whilst  it  is  common  and  equal  to  all 
through  wThose  land  it  runs,  and  no  one  can  obstruct  or 
divert  it,  yet,  as  one  of  the  beneficial  gifts  of  providence, 
each  proprietor  has  a right  to  a just  and  reasonable  use  of  it 
as  it  passes  through  his  land ; and  so  long  as  it  is  not  wholly 
obstructed  or  diverted,  or  no  larger  appropriation  of  the 
water  running  through  it  is  made  than  a just  and  reasonable 
use,  it  cannot  be  said  to  be  wrongful  or  injurious  to  a pro- 
prietor lower  down.  What  is  such  a just  and  reasonable  use 
may  often  be  a difficult  question,  depending  on  various  cir- 
cumstances. To  take  a quantity  of  water  from  a large  run- 
ning stream  for  agricultural  or  manufacturing  purposes  would 
cause  no  sensible  or  practical  diminution  of  the  benefit,  to 
the  prejudice  of  a lower  proprietor  ; whereas  taking  the 


288 


Saxonville  Mills. 


same  quantity  from  a small  running  brook,  passing  through 
many  farms,  would  be  of  great  and  manifest  injury  to  those 
below  who  need  it  for  domestic  supply  or  watering  cattle ; 
and  therefore  it  would  be  an  unreasonable  use  of  the  water, 
and  an  action  would  lie  in  the  latter  case,  and  not  in  the 
former.  It  is  therefore  to  a considerable  extent  a question 
of  degree.” 

•The  opinion  was  a very  elaborate  one,  and  it  turned  upon 
the  exact  question  whether  a man  has  any  right  to  that 
which  does  not  perceptibly  damage  him,  in  the  case  of  run- 
ning water  ; and  the  court  says,  No. 

Well,  now  I desire,  in  this  connection,  to  read  to  you  from 
the  fourth  of  Cushing,  page  GO,  "Lombard  vs.  Stearns,”  — 
the  opinion  of  a gentleman  whose  opinions  were  mostly  held 
to  be  law  in  this  Commonwealth  a short  time  ago,  upon  a 
case  where  a mill-owner  undertook  to  say  that  his  stream 
could  not  be  diverted  at  all  without  paying  him  damages ; 
that  he  owned  the  river  as  against  the  public  who  wanted  to 
drink  it.  Chief  Justice  Shaw  says  : — 

"It  is  contended  that  this  act  is  unconstitutional  and  void, 
because  it  in  effect  authorizes  the  corporation  to  take  private 
rights  of  property  for  a use  which  is  not  a public  one,  and 
therefore  not  within  the  authority  of  the  Legislature,  even 
though  provision  is  therein  made  for  compensation  for  any 
such  damage.  It  may  be  very  questionable  whether  the 
plaintiff,  taking  the  use  of  the  brook  for  a mill-power,  does 
not  take  it  subject  to  the  reasonable  use  of  all  proprietors 
above,  in  or  near  whose  premises  it  passes,  for  domestic 
purposes*,  for  such  ordinary  trades  as  require  the  use  of 
water,  such  as  tanning,  bleaching,  dyeing,  and  the  like,  and 
also  for  the  extinguishment  of  fires.” 

It  is  not  required  to  be  riparian  proprietors. 

" If  such  be  the  right  of  the  inhabitants  to  the  use  of  the 
water,  it  may  be  a question  wdiether  it  is  a greater  encroach- 
ment on  the  plaintiff’s  rights,  to  take  water  by  conduit  and 
hydrants  than  by  buckets  and  engines.  But  as  this  right 
may  involve  a question  of  fact  which  this  case  has  not 
reached  in  its  present  stage,  we  lay  no  stress  on  this,  but 
merely  suggest  it  in  passing. 

" But  we  can  present  no  ground  on  which  to  sustain  the 
argument  that  this  act  does  not  declare  a public  use.” 

That  is,  the  private  corporation  of  the  Springfield  Aque- 
duct Company,  incorporated  for  the  laying  of  an  aqueduct 
for  the  purpose  of  supplying  the  village  of  Springfield  with 
pure  water. 

Therefore,  we  have  a case  before  us  where  for  a proper 
public  use  no  appreciable  damage  is  done  in  a portion  of  the 


Argument  of  Gen.  Butler. 


289 


year ; and  during  that  time  you  are  not,  I submit,  to  pay  for 
the  water. 

Now,  one  other  consideration,  as  bearing  upon  that,  and 
that  is,  this  attempt  to  have  damages  for  supposed  work  at 
night.  You  will  rule  that  upon  the  proposition  of  showing 
whether  this  is  a more  constant  stream,  by  showing  that  it 
is  used  by  night  and  therefore  more  valuable,  — if  that  is 
proper.  But  my  proposition  is  this  : That  upon  this  ques- 
tion of  damages,  it  is  only  for  the  use  by  the  day,  — the  ordi- 
nary use  such  as  men  have  ordinarily  made  of  it  in  a long 
series  of  }^ears,  — the  ordinary  action  of  mankind  in  using 
water ; that  it  is  no  fanciful  use  that  might  be  made  at  night. 
I could  have  suggested  to  my  brother  a better  use  that  he 
might  have  made  of  his  water  by  night  than  throwing  it 
away,  or  than  to  keep  the  hands  at  work  night  and  day.  He 
has  to  use  a steam  engine.  Now,  suppose  he  had,  all  night, 
while  it  was  running  away,  compressed  air  for  the  purpose 
of  using  it  to  run  his  mill  during  the  day. 

Mr.  Hodges.  We  were  just  going  to  do  that  when  you 
took  the  water. 

Mr.  Butler.  The  Legislature  has  put  its  ban  upon  that, 
— that  it  is  not  best  for  men  to  be  worked  more  than  so 
many  hours  a day  — men  and  women,  — and  experience  has 
shown  that.  Now,  I say  that  you  must  deal  with  the  ordinary 
common  daily  habits  of  mankind,  in  using  power,  whether 
steam  or  water. 

I do  not  mean  to  say  that  if  a man  had  a paper-mill  on  that 
stream,  which  he  was  accustomed  to  run  a portion  of  the 
night,  that  taking  away  from  him  at  night  enough  to  run  that 
portion  of  the  mill  would  not  do  him  harm,  if  the  mill 
was  fitted  up  for  that,  and  your  Honors  saw  that  was 
the  use  to  be  made  of  it.  But  where  it  is  fitted  so  com- 
pletely and  wholly  and  thoroughly  for  another  and  different 
use,  and  would  be  only  valuable  for  that  use,  and  where-  (as 
two  of  your  Honors  know,  if  all  three  do  not),  the  whole 
plan  is  useless  and  valueless  if  it  should  be  changed,  I can- 
not conceive  how  this  question  of  damages  for  the  night 
comes  in  at  all.  I wish  you  would  say  in  your  report  whether 
you  find  damages  for  the  use  by  night.  You  are  to  find  what  ? 
The  value  of  the  water  that  we  take,  to  Mr.  Simpson,  and 
that  is  for  the  ordinary  use  of  it.  You  are  to  get  out  of  the 
region  of  fanciful  valuations.  If  there  had  not  been  some 
extraordinary  awards  made  in  this  Commonwealth  by 
referees,  the  idea  of  fanciful  valuations  would  have  been 
abandoned,  and  these  matters,  largely,  would  have  been  ad- 
justed. But  you  can  see  how  men’s  imaginations  are  excited 
whenever  the  city  takes  any  water.  For  instance,  our  very 


290 


Saxonville  Mills. 


good  friend  here,  who  I have  no  doubt  is  as  honest  a man  as 
lives,  undertook  to  tell  you  how,  in  the  winters  of  1872,  ’73 
and  ’74,  he  perceived  that  the  city  had  injured  this  privilege. 
I have  no  doubt  he  believed  it  with  all  his  soul ; — and  so  if 
a quack  doctor  had  given  him  a bread  pill,  when  he  had  the 
stomach-ache,  his  stomach-ache  would  have  stopped  in  virtue 
of  the  exercise  of  the  same  force  of  imagination.  So  I am  trying 
to  get  rid  of  any  inflated  value  ; and  on  the  other  hand,  I want 
to  say  for  the  city,  that  I am  not  instructed  to  say  that 
the  city  do  not  want  to  pay  every  fair  dollar  to  make  these 
corporations  good.  It  has  got  to  come  out  of  the  taxation 
of  the  city.  The  city  officers  are  no  more  interested  in  it 
than  every  other  citizen ; and  therefore  I want  to  get 
at  that.  Now,  what  is  that?  Why,  I say  a very  small 
amount, — because  I say  to  you,  that  upon  this  evidence, 
applying  your  judgment  and  skill  as  skilled  men,  there  is 
not  more  than  fifty  horse-power  in  that  stream  during  the 
dry  months  of  the  year.  I want  you  to  hold  me  to  that 
statement,  for  I propose  to  make  it  good  when  the  session 
is  resumed  this  afternoon. 

[. Recess  till  1 J o'clock,  P.  M.~\ 

AFTERNOON  SESSION. 

CONTINUATION  OF  MR.  BUTLER’S  ARGUMENT. 

I said  to  the  commissioners  when  we  took  the  recess,  that  I 
did  not  believe  they  ever  had  more  than  50  horse-power 
there  in  the  summer,  and  with  all  improvements  of  the 
river,  and  with  the  natural  run,  much  less.  Now,  I will  tell 
you  the  grounds  upon  which  I have  come  to  that  conclusion. 
In  the  first  place,  I lay  out  of  sight  largely  all  estimates  of 
remembrance  and  all  estimates  of  power  by  mere  estimate, 
for  your  experience  will  tell  you  that  everybody  estimates  a 
great  deal  more  than  they  get.  If  it  does  not,  your  experi- 
ence will  be  very  different  from  mine.  A man  on  a little 
stream  thinks  he  has  a great  deal  more  power,  to  use  a Cali- 
fornia phrase,  than  it " pans  out  ” ; and  to  show  you  how  unre- 
liable these  estimates  are,  I knew  a source  which  would 
settle  the  question  largely,  and  I got  it  from  my  brother, 
and  I am  very  glad  to  have  it  in.  They  all  agree  that  the 
blanket  machinery  is  by  far  the  heaviest  portion  of  their 
power,  and  the  mill  in  which  the  blankets  are  made,  which 
is  No.  1,  you  have  already  heard,  takes  190  horse-power,  to 
80-horse  power  for  the  rest,  or  something  like  that. 

Mr.  Hodges.  The  increase  makes  it  240. 

Mr.  Butler.  Now  their  estimates  of  power  have  been, 


Argument  of  Gen.  Butler, 


291 


that  there  is  very  little  more  machinery  now  in  the  mill  to  be 
carried  than  there  was  in  1860.  One  witness  testifies  there 
was  only  25  per  cent,  more  than  there  was  in  1840,  when 
they  had  the  New  England  Worsted  Company  there,  and 
only  made  flannels.  Another  testified  that  possibly  there 
was  125  more  there  in  1864  than  there  was  in  1844,  and  there 
was  20  or  25  per  cent,  more  now  than  then.  It  takes  power 
to  make  blankets.  Now,  let  us  see.  In  1859,  their  product 
was  104,000  blankets;  in  1860,  112,000;  in  1861,  129,000; 
in  1862,  926,000  ; in  1865,  when  they  ran  day  and  night,  213,- 
000  ; in  1866,  182,000  ; in  1867,  179,000  ; it  fell  down  again 
in  1868  to  93,000  ; in  1869  to  157,000  ; in  1870  to  197,000  ; 
in  1871,  200,071;  in  1872,  216,000;  in  1873,  219,000;  in 
1874,217,000;  and  in  1875  it  was  218,000.  Well,  now, 
with  only  50  per  cent,  more  machinery  they  more  than 
double  the  production  of  blankets  ! Very  well.  The  piece 
goods  were  70,000  in  1859  ; 71,000  in  1860  ; 70,706  in  1861 ; 

358.000  in  1862  (there  must  have  been  a large  increase  of 
piece-goods  machinery,  or  else  they  did  not  run  much  of 
their  machinery  in  1860  or  1861)  ; 320,000  in  1864  ; 197,000 
in  1865  ; it  fell  to  41,000  in  1866,  showing  the  war;  50,000 
in  1867  ; 44,000  in  1868  ; 51,000  in  1869  ; 13,000  in  1870; 

5.000  in  1871 ; 2,985  in  1872  ; 2,507  in  1873  ; 1,500  in  1874 ; 
and  848  in  1875.  Again,  in  worsted  they  had  430,000 
pounds  of  worsted  yarn  for  sale  in  1859  ; 396,000  in  1860 ; 

158.000  in  1861 ; a large  amount  of  increase,  201,000,  in  1862  ; 

275.000  in  1863  ; 273,000  in  1864  ; 245,000  in  1865  ; 348,000 
in  1866  ; 254,000  in  1867  ; 162,000  in  1868  ; 276,000  in  1869  ; 

257.000  in  1870  ; 193,000  in  1871  ; 127,000  in  1872  ; 188,000 
in  1873;  150,000  in  1874;  and  74,000  in  1875,  Then,  all 
other  yarns,  288,000  in  1859  ; 405,000  in  1860  ; 132,000  in 
1861  ; 96,000  in  1862  ; 75,000  in  1863  ; 44,367  in  1864  ; 159,- 
608  in  1865  ; 145,346  in  1866 ; 194,457  in  1867  ; 293,601  in 
1868 ; 247,515  in  1869  ; 218,183  in  1870  ; 236,000  in  1871  ; 

185.000  in  1872  ; 143,000  in  1873  ; 204,000  in  1874 ; and 

181.000  in  1875.  These  are  yards  and  pounds.  Then  of 
worsted  yarns,  again  in  piece  : worsted,  135,000  in  1859  ; 

184.000  in  1860  ; 108,000  in  1861  ; 175,000  in  1862  ; 206,000 
in  1863;  250,000  in  1864;  277,000  in  1865  ; 314,000  in  1866  ; 

310.000  in  1867  ; 363,000  in  1868  ; 407,000  in  1869  ; 444,- 
000  in  1870  ; 509,000  in  1871 ; 671,000  in  1872  ; 583,000  in 
1873  ; 650,000  in  1874 ; and  679,000  in  1875. 

Well,  now  there  is  a treble  production.  There  must  have 
been  three  times  the  amount  of  machinery  to  have  made  that 
production  right  through,  and  of  course  taking  three  times 
as  much  power,  and  you  will  observe  they  have  put  in  the 


292 


Saxon yille  Mills. 


capacity  of  a steam  engine.  First,  they  had  an  old  one  of 
very  little  power,  then  the  English,  which  is  now  extant. 

Mr.  Hodges.  The  English  engine  was  the  first. 

Mr.  Butler.  Yes,  that  was  the  first,  and  then  the  other 
one,  which  is  now  extant,  and  then  this  present  one,  which 
runs  up  to  about  320  horse-power.  Very  well.  Now,  I take 
it  again  as  axiomatic,  that  if  you  have  but  50  horse-power 
of  water  out  of  320,  it  is  a great  deal  better  not  to  connect 
the  shafting,  and  that  is  the  reason  why  No.  3 mill  was  never 
rebuilt ; and  you  will  find  in  looking  at  that  little  book  which 
we  had  here,  and  which  I ran  through  in  my  examination,  that 
when  they  began  to  run  any  considerable  amount  in  steam  they 
stopped  the  whole,  and  for  the  last  six  years  that  that  book 
covers,  when  they  began  to  run  in  steam  they  kept  running 
in  steam ; they  did  not  put  it  off  and  on  but  very  little. 

Mr.  Hodges.  I presume  you  want  to  speak  exactly  the 
facts.  It  is  here  in  proof  that  neither  of  these  mills  can  at 
the  same  time  employ  steam  and  water. 

Mr.  Butler.  I understand  it  perfectly.  You  misappre- 
hend my  argument.  My  argument  is,  that  when  you  get 
out  of  320  only  about  50  horse-power  of  water,  and  the 
only  cost  of  making  the  steam-power  is  coal,  that,  under- 
taking to  run  the  two  together,  it  is  in  practice  quite  as 
cheap  to  let  your  water-power  go,  as  it  is  to  put  it  on ; and  I 
appeal  to  gentlemen  of  experience  upon  that  subject.  I am 
not  speaking  about  it  before  men  whose  good  opinion  I don’t 
care  to  retain,  as  a man  of  some  practical  sense  about  manu- 
facturing. I have  lived  in  a manufacturing  town  all  my  life, 
and  been  conversant  with  these  matters,  and  I ought  to 
know  something  about  it ; and  I have  had  occasion  for  the 
last  nine  years  to  examine  it  pretty  carefully,  and,  a-s  you 
saw  when  you  were  there,  we  have  got  a 600  horse-power 
engine  — it  can  run  up  to  that  — at  the  Wamesit  dam,  so 
that  you  will  find  that  the  very  idea  which  I put  before  you 
is  taken  at  Saxonville  ; that  in  the  summer  they  substantially 
quit  using  water,  when  it  begins  to  run  down  very  consider- 
ably, when  it  runs  down  quite  low.  They  can  use  steam 
and  water  power.  When  the  water-power  is  largely  in  excess 
of  the  steam-power,  so  that  that  can  be  the  governor,  then 
put  on  your  steam ; when  the  steam-power  is  largely  in 
excess,  then  put  on  your  water;  when  your  water-power  is 
largely  in  excess  of  the  steam  then  put  on  your  steam, 
because,  don’t  you  perceive,  gentlemen,  that  a much  larger 
per  cent,  than  10  per  cent., — I insist  20  per  cent., — is  lost 
between  the  wheel  and  the  machine  on  any  extended  matter 
of  shafting,  especially  if  that  shafting  is  carried  through 
large  distances  in  half-a-dozen  old  mills  ? I have  had  some 


Argument  of  Gen.  Butler. 


293 


experience,  as  you  might  have  guessed,  upon  that.  Every 
time  your  shaft  sags  like  that,  it  is  like  turning  over  an 
elephant,  and  the  friction  is  very  large,  and  your  different 
foundations  of  the  mill  and  different  foundations  to  the 
beams,  from  which  the  hangers  come  of  your  shafting, 
change,  making  very  great  friction,  and  a man  loses 
more  by  undertaking  to  run  his  water-shafting  in  connection 
with  his  steam  than  to  run  without  it,  because  there  must 
always  be  shafting  to  connect  the  two,  so  that  he  will  find 
that  his  engine  is  dragging  his  shafting,  when  he  thinks  he  is 
aided  by  the  water,  if  he  has  but  little  water. 

Now,  the  supply  in  the  summer  is  a bagatelle,  and  the 
water  used  in  the  city  is  a bagatelle,  in  comparison  with  the 
amount  used  by  machinery.  Why,  a million  gallons  of 
water  over  a foot-fall  will  give  you  only  about  one-third  of 
a horse-power,  .3281,  or  something  like  that,  — some  make 
it  a little  more  and  some  a little  less.  A million  of  gallons 
is  how  fast  a second  ? How  much  does  the  City  of  Boston 
use?  They  use  16  or  17  million  gallons  a day  — that  is  all. 
Why,  we  have  learned,  and  it  is  an  admitted  fact  here,  that 
from  the  17th  of  June,  1872,  if  I remember  the  date  right,  to 
the  16th  of  September,  1872,  they  took  two  billions  six  hun- 
dred millions  of  gallons,  all  told.  Well,  let  us  see  how 
that  affected  the  coal.  We  have  seen  that  this  is  a continu- 
ally increasing  quantity,  from  1871  and  ’72.  They  were 
manufacturing  200,000  blankets  in  1871,  216,000  in  1872, 

219.000  in  1873  ; they  dropped  down  some  on  their  piece 
goods,  that  is  true,  but  they  went  up  from  127,000  to 

128.000  on  their  worsted  yarns,  and  went  up  some  on  the 
others.  (I  am  only  showing  you  what  a bagatelle  the  city 
used  in  comparison  with  what  it  takes  to  run  machinery.) 
Now,  let  us  see  how  coal  was  affected.  We  did  not  take 
any  in  1871,  and  they  return  us  that  they  bought,  in  1871, 
$11,933  worth  of  coal;  in  1872  we  did  not  take  water,  and 
they  return  us  that  they  bought  $10,000  worth  of  coal.  We 
took  a million  six  hundred  gallons  in  dry  time,  which  illus- 
trates what  I have  been  telling  you,  and  what,  if  you  ex- 
amine that  book,  you  will  find  to  be  true.  And  in  1873, 
when  we  didn’t  take  any,  they  bought  $17,000  worth.  You 
see  the  city  shut  off  in  September,  1872,  and  did  not  take 
any  till  1875.  They  got  frightened  by  my  law  suit,  and  in 
1874,  when  we  did  not  take  any,  they  had  $16,000  worth. 
And  I have  only  taken  these  times  because  they  say  by  ill- 
luck  their  books  got  burned  up  before  that  time.  So  you  will 
see,  gentlemen,  that  this  is  not  any  more  than  the  amount 
of  water  which  runs  there  in  the  summer,  leaving  them  one 
and  a half  million  pounds  to  wash  their  wool ; and  it  is  in- 


294 


Saxonville  Mills. 


appreciable  by  any  measure  known  to  mercantile  dealing, 
as  is  the  amount  taken  in  the  summer  from  the  Lawrence 
dam,  and  I can  make  no  stronger  comparison. 

But  that  it  is  of  some  damage  I agree,  substantial  damage  ; 
but  that  is  all.  These  inflated  ideas  that  are  brought  here  of  the 
injury  done  to  them  are  all  illusory  and  vain.  The  idea  that 
we  are  to  pay,  first,  for  what?  First,  for  all  the  water  taken, 
on  the  ground  that  they  might  use  it  all  when  pressed  by 
contracts  so  as  to  have  to  run  nights,  with  a consequent  loss 
of  oil  and  waste,  and  all  that  matter  which  is  done  by  run- 
ning nights.  Why,  then,  they  didn’t  do  any  more.  It  don’t 
make  any  change.  Now,  while  they  are  making  a third 
more  goods  than  when  they  did  run  nights  of  all  sorts,  they 
don’t  make  any  change,  and  therefore  they  come  in  here  and 
say,  ’'Can’t  we  cut  out  the  channel  and  get  a little  more 
water-power  down  to  where  the  river  flows  back  ? ” I asked 
if  it  was  ledge.  They  say  "No,  it  is  sand.”  Why,  to  get 
more  water-power  in  a dry  time,  they  will  have  to  dig  the 
gravel  and  sand  out  of  their  raceway,  because  they  under- 
stand it  exactly.  Whenever  they  have  enough  water  it 
is  inappreciable ; when  they  have  too  much  water,  it  is 
equally  inappreciable  ; and  then  they  come  in  and  say,  " the 
possible  right  of  flowing,”  and  they  have  been  there  from 
time  immemorial,  and  have  never  flowed  Farm  pond  at  all. 
They  did  raise  their  dam  four  feet,  down  below,  and  then 
they  didn’t  flow  out  up  to  the  grist-mill,  and  yet  they  claim 
that  the  City  of  Boston  is  to  pay  large  damages  for  the  right 
they  have  to  damage  somebody,  and  pay  the  damage,  and 
the  jury  then  stop  them  and  say,  " On  the  whole  we  don’t 
think,  under  the  Mill  Act,” — as  the  jury  have  the  right  to, — 
" we  don’t  think  you  had  better  raise  your  dam  any  more  ; ” 
and  if  I were  in  the  employ  of  the  farmers  before  the  jury  I 
should  put  it  to  them,  whether,  upon  the  whole,  if  they 
could  get  along  and  supply  the  army  with  blankets  without 
injuring  the  farmer,  they  had  better  not  injure  him  any. 

There,  gentlemen,  is  the  case  before  you.  It  is  a question 
addressed  to  good  common-sense  and  business  capacity,  and 
I cannot  aid  you  any  more  on  that.  The  law,  as  I insist,  is 
that  it  is  only  an  actual,  perceptible,  appreciable  damage 
that  we  are  to  pay  for,  and  that  that  is  not  shown  whenever 
there  is  any  considerable  quantity  of  water,  and  that  what 
we  take  out  is  inappreciable ; and  then  the  fact  that  it  is  still 
more  inappreciable  in  a dry  time  from  the  very  fact  that  they 
have  worked  so  largely  in  excess  of  their  water-power  in  a 
dry  time ; just  as  inappreciable  as  when  the  water-power  is 
so  largely  in  excess  of  the  work.  I tell  you,  gentlemen,  the 
man  is  damaged  by  taking  the  water,  when  you  take  so  much 


Augument  of  Gen.  Butler. 


295 


that  he  cannot  use  the  one  nor  use  the  other  alone ; but 
where  there  is  an  excess  in  every  way,  he  is  but  little 
damaged. 

Now,  what  is  the  city  going  to  do  ? How  are  they  going  to 
get  their  water  ? Why,  ten  million  of  gallons  a day  will  last 
them  for  twenty  years,  forty  years,  fifty  years  ; but  they  are 
going  to  make  works,  I agree,  for  all  time.  How  are  they 
going  to  get  it  ? They  are  going  to  store  it  up  in  reservoirs ; 
they  are  going  to  take  it  down  in  a conduit.  Lake  Cochituate 
cannot  supply  the  present  conduit.  They  are  going  to  make  a 
new  one  so  that  it  would  do  no  good  to  turn  it  into  Lake  Co- 
chituate, for  they  could  not  get  it  through  the  conduit.  It  is 
only  twenty  millions  of  gallons  a day,  therefore  they  are  going 
to  make  a new  conduit  and  take  this  water  down.  Of  course, 
they  are  not  going  to  take  it  down  and  let  it  run  to  waste  in 
Lake  Cochituate,  for  they  are  storing  water.  They  are  going 
to  make  these  large  reservoirs  and  store  it,  depending  upon 
the  summer  rains  to  take  care  of  the  evaporation  and  hold  it 
there  in  store,  and  they  are  not  going  to  want  more  than  ten 
millions  of  gallons  for  the  next  twenty  years,  in  all  human 
earthly  probability,  and  they  are  not  going  to  want  the 
capacity  of  storage  for  a good  time,  as  they  believe,  for  they 
think  they  are  making  it  for  all  time.  But  that  water  don’t 
belong  to  Mr.  Simpson.  He  has  got  no  place  to  keep  it ; he 
cannot  store  it ; he  cannot  lay  his  hand  upon  it  when  it  is 
rushing  by  in  the  spring  at  the  rate  of  thousands  of  millions 
of  gallons  an  hour.  He  has  got  no  storage  capacity ; he 
cannot  afford  to  store  it  up  for  that  purpose.  The  little  he 
would  store,  although  it  would  be  a great  quantity  for  the 
city,  if  he  could  have  all  the  storage  of  the  city,  would  run 
his  mills  for  only  a short  time  upon  storage  alone,  and  that 
is  the  way  the  city  is  going  to  get  this  small  amount  of  water 
which  it  wants  for  itself.  Now,  then,  take  this  damage, 
whatever  it  may  be,  and  pay  for  it.  Now  let  us  see  how  you 
are  going  to  pay  for  it.  All  beyond  what  we  store  runs 
forever,  as  it  did  run,  and  goes  down  to  Mr.  Simpson’s  or 
Saxonville  mills.  Now,  I am  speaking  to  gentlemen  who  un- 
derstand hydraulics.  Is  it  not  the  fact,  that,  where  you  store, 
you  increase  the  run  during  the  whole  year  by  the  very  act 
of  storing,  letting  it  down  more  slowly?  Take,  for  instance, 
Lake  Winnipiseogee,  which  you  store  up  when  it  is  full. 
By  draining  slowly  over  that  immense  surface,  don’t  the 
water  run  longer  in  fact  over  the  dam  at  Lake  Winnpiseo- 
gee  than  it  would  run  in  the  stream  if  there  was  no  dam 
there,  running  clear  and  free?  In  other  words,  would  not 
the  freshet  in  the  spring  carry  it  off  faster?  Now,  so  with 
the  storage  by  the  city ; it  is  really  going  to  be  an  improve- 


296 


Saxon yille  Mills. 


ment  all  through  the  spring  and  summer  months ; it  is  going 
to  be  an  improvement  to  the  Saxonville  property,  and  every- 
body else’s  property  on  the  river  below,  during  the  spring 
and  summer  months.  Now,  you  are  to  find  some  sum. 

There  are  two  or  three  considerations  I want  to  bring  to 
your  attention  upon  that,  and  I want  them  judged  by  their 
good  sense,  if  they  have  good  sense. 

The  Saxonville  people  are  not  to  be  injured  for  ten  years 
at  all,  in  my  judgment.  They  come  here  and  ask  you  for  a 
sum,  apparently  through  the  testimony  of  Mr.  Bacon,  that 
$24,000  a year  would  be  the  interest  of.  I cannot  see  what 
that  is  put  in  for  otherwise. 

Mr.  Hodges.  We  expect  a great  deal  more  than  that, 
sir. 

Mr.  Butler.  Do  you? 

Mr.  Hodges.  Yes,  a great  deal  more.  I don’t  want  any 
misunderstanding  about  it. 

Mr.  Butler.  I am  very  glad  to  hear  it.  I had  mis- 
understood. All  right,  gentlemen.  When  you  get  more 
than  that,  let  us  know.  Probably  they  will  not  be  substan- 
tially injured  for  sixty  years.  Now,  if  you  will  turn  to  the 
books  of  the  English  engineers,  you  will  always  find  in  their 
estimates,  what  they  call  the  " capitalization  of  damages ; ” 
and  whatever  the  injury  is,  let  us  see  how  it  would  be. 
$24,000  would  be  six  per  cent  on  $400,000.  Very  well. 
What  would  be  the  advantage  to  any  mill  of  a capital  of 
$250,000,  if  they  could  suddenly  have  poured  into  their  hands 
a quick  capital  of  $400,000,  put  in  the  bank,  giving  them  un- 
limited credit  to  begin  with,  taking  them  out  of  the  market; 
and  that  is  no  small  consideration  ? They  have  the  money  in 
hand,  they  are  only  to  pay  out  simply  the  interest  of  it. 
Upon  the  theory  of  my  friend,  they  would  have  a sum  of 
which  that  was  the  interest.  They  are  to  pay  out  the 
interest  and  forever  keep  their  capital  of  $400,000.  Sup- 
pose they  don’t,  and  come  to  the  conclusion  to  do  exactly  as 
they  have  done,  buy  no  more  coal,  and  go  on  for  a series  of 
years?  It  doubles  in  ten  years,  $800,000  ; in  twenty  years, 
$1,600,000;  in  thirty  years,  $3,200,000;  and  in  my  judg- 
ment, for  thirty  years,  they  will  not  be  damaged  at  all.  And 
I acted  upon  that  judgment  when  I sold  out  all  my  rights  in 
that  river  at  a very  cheap  sum.  Mr.  Simpson  has  got  it,  in 
my  judgment,  forty-four  times  as  much. 

Now,  what  sum  will  make  them  whole  as  capital?  Put 
you  there,  sir,  as  an  owner  of  that  stock,  in  the  light  of  the 
evidence  you  have  got,  which  should  you  rather  have,  so 
much  money  or  so  much  water?  I tell  you  that  you 
could  not  get  them  to  agree  to  take  the  amount  of  water, 


Argument  of  Gen.  Butler. 


297 


not  one  of  them,  which  we  took  from  them,  if  we  had 
agreed  to  furnish  it  to  them  from  onr  reservoirs  for  one 
quarter,  if  you  could  for  one-eighth  of  the  sum.  Look  at  it, 
therefore,  in  a business  point  of  view  in  that  regard,  and  see 
what  sum  you  will  pay ; and  looking  at  it  in  its  effect  as 
capitalization,  there  is  hardly  an  amount  small  enough, — 
if  they  are  not  to  be  injured  for  a long  series  of  years,  as 
they  have  not  shown  themselves  to  be,  or  likely  to  be, — 
which,  with  its  increase,  would  not  more  than  make  them 
good. 

There  is  the  other  point  that  I must  raise  again.  I insist 
that  the  meaning  of  the  act  is,  that  there  should  be  some 
demand  made  upon  the  city,  some  information  given  to 
the  city,  that  damages  were  claimed,  so  that  the  city 
should  have  the  power  to  endeavor  to  agree  upon  the 
damages,  and  answer  the  claim  before  it  is  brought  into 
court.  This  is  a great  public  work.  The  city  is  called  upon, 
before  it  can  shelter  itself  under  the  act,  to  state  what  it  is 
going  to  do,  put  on  file  its  taking,  with  a positive  description 
and  when  taken  ; then  every  party  has  the  right  to  come  and 
see  about  damages.  They  cannot  know  beforehand,  they  can- 
not search  the  titles  of  everybody.  It  is  not  like  a case 
where  there  shall  be  a payment  between  man  and  man. 

Mr.  Hodges.  If  you  rely  upon  that,  perhaps  it  is  only 
fair  to  me  to  say  to  you,  and  I think  you  will  see  it,  that  in 
June  or  July,  a year  ago,  at  my  request,  the  city  Water  Board 
went  to  make  an  examination  of  our  works,  with  the  view 
of  seeing  if  we  could  not  make  a compromise  and  settle  this 
matter.  I made  no  proof  of  it,  because  I in  some  way  got  the 
impression  that  you  were  not  to  press  that  point  in  this  case. 
If  you  do  press  it,  it  really  ought  to  have  been  proved  so  far 
as  that  statement  will  go  to  qualify  the  position  you  are 
taking. 

Mr.  Butler.  To  that  I have  to  say,  that  I argued  this 
very  point  in  another  case  before  your  Honors. 

Mr.  Hodges.  Certainly  you  did,  and  in  that  case  the  city 
board  had  not  been  there. 

Mr.  Butler.  How  do  you  know  that?  I don’t. 

Mr.  Hodges.  I do. 

Mr.  Butler.  You  and  I are  pretty  well  advanced,  — too 
old,  I am  sorry  to  say,  — at  the  bar  not  to  know  we  try  our 
cases  upon  the  evidence  produced  before  the  Court.  With 
your  leave,  brother  Hodges,  I will  argue  it  upon  the  evi- 
dence, for  I have  a little  word  to  say  about  this  matter.  I 
listened  to  my  brother  Mer win’s  argument,  and  it  occurred 
to  me  possibly  I should  have  to  close  upon  that  before  I got 
through.  The  proposition  is,  they  say  you  show  a demand 


298 


Saxonyille  Mills. 


and  agreement,  presuming  the  statute  says  "a  demand;”  no, 
"in  case  they  cannot  agree”  it  says.  What  is  the  use  of 
those  words?  You  must  give  some  effect  to  the  words  of  the 
statute,  and  I was  trying  to  bring  to  your  Honors’  minds  the 
fact  that,  with  a great  public  work  taking  land  over  a large 
extent  of  country,  they  could  not  know  whom  they  had  dam- 
aged, and  they  at  least  ought  to  have  an  opportunity  to 
examine  it ; and  if  my  brother  Hodges  has  done  what  he 
says  he  has  done,  and  I should  not  feel  myself  authorized 
to  doubt  it  anywhere  else  but  in  the  present  position  of  this 
case  upon  the  evidence,  then  I have  his  opinion  that  it  ought 
to  be  done  as  a condition  precedent.  I cite  him  as  an 
authority,  1st,  Hodges,  passim . And  it  clearly  ought  to  be 
done.  The  City  of  Boston,  for  a public  use,  executing  a 
great  public  work,  ought  to  be  at  least  called  upon,  somehow 
and  somewhere  notified,  that  somebody  claimed  damages  of 
them,  before  they  are  brought  into  court  and  put  to  expense. 
But  I don’t  put  it  upon  the  eternal  fitness  of  things,  which  it 
would  seem  to  stand  upon,  but  upon  the  exact  words  of  the 
statute ; but  "in  case  they  cannot  agree”  then  you  are  to  be 
called  out,  and  not  till  then.  How  can  a man  agree  about  a 
thing  that  he  has  never  heard  of?  He  must  have  a chance  to 
agree,  if  something  is  to  fall  upon  him  if  he  don’t  agree. 
Why,  the  very  modest  demand  of  my  brother  Hodges  for  dam- 
ages, we  should  have  agreed  to  at  once,  instantly,  and  have 
paid  it  up  by  drawing  a check  the  next  hour,  if  he  had  come 
with  that  demand  to  us,  undoubtedly ; but  whether  we  would 
or  not,  we  ought  to  have  that  option.  At  least,  gentlemen, 
we  ought  to  have  had  some  limit ; they  should  have  said, 
" Why,  we  will  take  so  much  ” — if  it  is  millions,  be  it  so  — 
" for  damages.” 

I don’t  think  I can  aid  you  any  farther  upon  that  point, 
but  I entirely  dissent  from  my  brother  Merwin’s  view 
of  this  matter.  What  do  you  do  with  these  words  of  the 
statute,  if  I am  not  right?  The  matter  is  for  your  own  good 
judgment. 

I wish  that  you  would  report  the  views  of  the  law  upon 
which  you  assess  damages  upon  the  several  points  I have 
taken,  because  here  you  see  there  is  a class  of  cases  : there 
is  the  Lawrence  case,  which  settles  one  class  of  cases ; this 
case,  which  settles  another  class  of  cases ; the  Talbot  case 
will  settle  the  third  and  only  class  which  I know  of,  except 
the  damages  for  flowing  lands,  and  I don’t  think  you  will 
have  any  of  those  before  you,  because  my  brother  Abbott 
thinks  he  will  suspend  Mr.  Cutler’s  case.  Now,  it  is  of  the 
last  importance  that  we  should  get  up  to  the  Supreme  Court, 
and  we  get  up  with  your  report  without  injury  to  anybody, 


Closing  Argument  for  Petitioners. 


299 


that  I can  see.  That  is,  we  move  to  set  aside  your  report, 
because  you  have  ruled  wrong  on  some  of  these  propositions 
I have  made  to  you,  and  the  court  refuses,  and  we  except 
to  that  refusal,  and  then  we  can  get  up  to  a jury  ; and  that  is 
why  I raise  these  questions,  thinking  that  you  ought  never 
to  have  been  troubled  with  them. 


CLOSING  ARGUMENT  OF  E.  F.  HODGES,  ESQ. 

I think  there  was  a case  in  the  annals  of  the  criminal  law 
where  a man  had  taken  the  watch  of  another,  a very  good 
one,  and  being  indicted  for  it  asserts  his  defence  something 
in  this  way  : "Why,  he  has  never  made  a demand  on  me  for 
the  watch.  I don’t  know  that  I shall  ever  want  to  use  it,  and  I 
don’t  think  I ought  to  be  found  guilty,  because  we  talked  it 
up  in  my  family  last  evening,  and  agreed  when  I could  get  a 
better  watch  away  from  somebody  else,  I would  return  this  if 
I thought  best and  I do  not  see  but  that,  in  many  respects, 
the  City  of  Boston  stands  rather  in  the  position  of  that  crim- 
inal, as  represented  here  to-day.  They  have  taken  the  water, 
and  their  sole  defence  is  that  they  don’t  know  as  they  need 
it ; they  may  get  some  water  somewhere  else  that  is  better ; 
and  if  they  do  there  is  a talk  among  themselves  that  they 
will  not  use  it,  and  in  addition  to  that  we  have  never 
demanded  it.  We  here  demand  it,  gentlemen. 

And  here,  and  firstly,  in  response  to  much  of  the  argument 
of  the  counsel,  I propose  to  present  whatever  I have  to  say 
concerning  his  argument,  before  urging  the  views  we  enter- 
tain concerning  our  rights  in  this  matter  and  our  damages. 
The  counsel  asserts  that  the  city  are  not  now  taking,  and 
will  not  for  years  take,  the  water,  and  that  you  are  to 
judge  our  damages  by  what  the  city  are  taking  to-day,  and 
what,  in  your  judgment,  they  will  take  by  and  by,  and  when  ? 
Now,  to  treat  that  with  entire  respect,  I submit,  is  not  that  a 
mistaken  view  of  the  question  that  is  before  us  ? Does  it 
not  involve  an  absurd  proceeding  in  law?  I believe  the 
question  before  us  is  not  what  amount  of  water  the  city 
have  taken  on  the  21st  of  January,  but  the  right  they  have 
taken  from  us  to  hold  any  water.  Is  not  that  the  question 
you  are  to  judge,  and  is  not  that  the  only  one?  The  amount 
they  have  taken,  and  all  these  questions  concerning  the  value 
of  the  water,  all  of  them  are  simply  guides  by  which  you 
are  to  estimate  the  value  of  the  thing  they  have  taken  from 
us.  What  that  thing  is,  I think,  has  been  entirely  misrepre- 
sented to  you.  As  I have  said  before,  the  thing  the  city 
have  taken,  by  that  paper  which  was  placed  before  you,  is 


300 


Saxonville  Mills. 


the  right  that  existed  in  the  Saxonville  mills  to  control  the 
flow  of  the  water  in  Sudbury  river.  When  the  city  took 
that  they  took  our  property ; they  use  the  water  or  they 
do  not  use  it ; they  took  it  through  the  channel  or  they  took 
it  through  the  conduit,  it  matters  not,  we  can  have  no  claim 
from  that  time  ; and  the  very  argument  that  the  gentleman 
used  is  conclusive  upon  this  point,  as  are  the  authorities  he 
cited.  We  cannot  force  the  men  who  hold  the  reservoirs 
above  us,  we  cannot  force  these  men  to  let  the  water  flow 
down ; we  cannot  force  the  city  to  let  any  part  of  the  water 
run  in  our  channel  hereafter ; and  if  the  argument,  that 
the  city  was  to  pay  only  for  the  water  taken,  entered 
for  one  moment  into  the  minds  of  either  of  you,  gentle- 
men, it  should  be  eradicated  from  the  very  bottom,  for  it 
is  not  what  they  have  taken  in  the  form  of  water,  it  is 
what  they  have  taken  in  the  form  of  right  from  which  we 
have  no  appeal,  and  for  which,  gentlemen,  you  well  under- 
stand we  can  never  again  apply  for  damages.  If  they  take 
no  water  from  us  for  forty  years,  what  matters  it ; they  have 
taken  all  our  right  to  it.  Again,  what  have  we  to  do 
with  this  remote  doctrine  of  capitalization,  cited  from  the 
English  engineering  books?  Do  we  need  it?  Cited  from 
Dil worth’s  arithmetic  would  be  as  well.  It  is  all  aside  and 
remote  from  anything  we  have  to  consider.  Why,  look  at 
the  position  the  Saxonville  mills  occupied  when  that  paper 
was  filed,  and  see  what  it  was  compared  with  that  they 
occupy  now ; for  the  difference  between  the  two  positions 
you,  gentlemen,  are  to  assess  the  damages,  fix  the  compen- 
sation, all  covered  by  the  expression,  "make  good  the 
petitioner.”  I should  feel  that  I had  no  right  to  encroach 
upon  the  intelligence  of  you,  gentlemen,  by  argument  on 
this  subject,  if  I had  not  the  eminent  example  of  the  gentle- 
man acting  for  the  city,  who  has  pressed  this  theory  upon  you. 

I cannot  conceive  of  learned  counsel  presenting  a case, 
grave  in  magnitude,  upon  arguments,  principles,  assever- 
ations of  rules  more  futile  or  childlike.  Why,  gentlemen, 
what  is  this  talk  of  the  enormous  increase  of  doubling  capital  ? 
What  is  the  enormous  increase  of  doubling  coal  bills,  not 
one  in  eleven  years,  but  annually?  They  pay  us  to-day 
$400,000  ; it  becomes  $800,000  "in  eleven  years  ; I agree  to  it. 
We  pay  this  year  $25,000  for  coal  to  supply  the  place  of  what 
they  have  taken  away  from  us.  In  fouryears  that  is  $100,000, 
and  increasing  in  interest  all  the  time  ; and  why  are  not  we 
entitled  to  some  consideration  for  what  we  are  to  pay,  and 
its  doubling  capacities,  as  well  as  the  city?  In  short,  gen- 
tlemen, the  dollar  taken  from  our  pocket  to-day  is  a dollar 
that  will  double  in  eleven  years  ; the  dollar  paid  to  us  for 


Closing  Argument  for  Petitioners. 


301 


that  by  the  city,  would  gain  in  our  hands  and  double  in  eleven 
years  ; and  that  is  just  as  broad  as  it  is  long,  and  the  argu- 
ment is  simply  vox  et  proeterea  nihil . It  will  be  observed 
that,  all  the  way  through,  the  argument  has  rested  upon  what 
the  city  has  taken  in  the  form  of  water,  and  what  it  is  worth 
to  the  city  in  that  form.  That  must  not  be  the  argument. 
It  must  not  be  the  foundation  upon  which  the  judgment 
stands. 

To  follow  the  argument  of  the  counsellor  further,  and 
in  its  order,  we  approach,  first,  the  question  of  Farm  pond. 
We  will  dispose  of  it  speedily.  We  have  the  right  to  the 
flow  from  Farm  pond  into  Sudbury  river  by  virtue  of  old 
rights  in  that  stream.  We  have  further  the  right  as  riparian 
proprietor  on  both  sides  of  the  stream,  running  from  Farm 
pond,  whatever  right  that  is.  Now,  gentlemen,  there  are 
two  views  to  take  of  that  right.  One  is,  what  it  may  be  in 
the  abstract ; second,  what  considerations  may  be  urged  to 
diminish  the  damages  for  interfering  with  that  right,  — and  we 
admit  they  are  many,  — but  if  those  considerations  don’t  out- 
weigh its  value,  then,  when  we  are  deprived  of  that  right, 
we  are  entitled  to  compensation,  and  it  is  simply  a question, 
not  of  law,  but  of  fact;  simply  a question  of  damage.  No- 
body doubts  that  as  proprietor  of  the  banks  of  that  brook 
from  Farm  pond  to  Sudbury  river  we  have  a right,  under 
the  Mill  Acts,  to  raise  Farm  pond.  At  the  same  time  that  we 
do  it,  we  must  pay  the  people  we  damage  by  so  doing. 
Now,  if  it  is  worth  more,  if  it  costs  more,  rather,  to  pay  the 
flowage  damage  than  we  gain  by  the  raising,  then  our  right 
is  worth  nothing;  but,  on  the  other, hand,  if  we  can  raise 
Farm  pond,  pay  the  flowage,  and  have  a profit  to  our  credit 
by  the  proceeding,  this  profit  we  are  entitled  to. 

One  thing  further  concerning  Farm  pond,  and  no  more.  It  is 
of  value  to  control  the  outgoing  of  Farm  pond  for  our  needs. 
In  days  of  high  evaporation,  it  may  be  well  worth  our  while  to 
dam  Farm  pond  sufficient  to  stop  its  diminution  , to  hold  it  back 
to  its  usual  high-water  mark  ; and  for  the  destruction  of  that 
right  we  are  entitled  to  compensation.  In  it  all,  gentlemen, 
there  is  no  question  of  law.  It  is  simply,  what  damages  have 
we  suffered  ? Well,  now  it  will  appear  in  the  testimony  in  the 
Essex  case  that  the  surface  of  the  water-shed  of  Farm  pond 
is  about  two  miles  and  a half.  There  is  a value  attached  to 
the  accumulation  that  water-shed  affords  and  the  distribution 
of  that  water  so  accumulated,  and  that  value  you,  gentlemen, 
will  adjudge.  I have  not  thought  it  proper  to  introduce  wit- 
nesses to  speak  simply  of  an  estimate  of  damages  in  a matter 
where  you,  gentlemen,  are  quite  as  capable  as  anybody  we 
could  produce  of  judging.  It  has  been  the  desire,  on  our  part, 


302 


Saxonyille  Mills. 


to  vex  you  with  no  more  testimony  than  was  needed  to  sus- 
tain our  claim  to  the  fair  damages  we  are  seeking. 

Now,  to  come  to  the  second  main  position  taken  by  the 
counsellor  for  the  city.  The  main  question,  propounded  in 
words:  "How  do  we  injure  the  petitioner?”  I venture  a 
few  remarks  in  regard  to  that.  Firstly,  as  to  the  1,500,000 
gallons  daily,  that,  under  the  law  they  are  compelled  to  allow 
to  run.  You  will  observe  that  the  certificate  of  taking,  which 
is  filed  here,  takes  the  whole  of  the  water . I do  not  believe 
that  it  justifies  the  city  in  so  taking,  as  to  interfere  with  the 
running  of  1,500,000  of  gallons  daily;  and,  as  a matter  of 
law,  I would  not  urge  that  such  was  the  true  construction  of 
the  act.  But  if,  upon  an  examination  of  the  document 
filed  by  the  city,  the  commissioners  are  satisfied  that  the 
city  may  proceed  to  take  the  whole  of  the  water,  and  not 
allow  us  this  1,500,000  gallons,  then  they  will  enter  judg- 
ment accordingly.  Then  this  would  be  to  be  considered : 
that  if  the  1,500,000  gallons  are  excluded,  the  damages 
would  be  very  much  greater ; that  the  last  1,500,000  gallons 
are  absolutely  necessary  to  the  conducting  of  any  work  at 
Saxon ville,  of  the  kind  we  are  now  doing.  It  is  needed  for 
scouring  and  washing ; we  saw,  when  taking  the  view,  the 
need  of  this  water  for  that  purpose,  and  that  1,500,000  gallons 
did  not  run  away  any  too  clean,  at  all  events.  Therefore,  if, 
upon  examining  that  document,  it  should  occur  to  the  commis- 
sioners that,  as  matter  of  law,  we  are  not  entitled  to  insist 
upon  the  running  of  1,500,000  gallons  daily  in  the  old 
channel,  the  amount  of  damages  would  be  increased  enor- 
mously. I do  not  believe  that  such  is  the  law. 

We  then  come  to  the  next  position, — one  urged  with  very 
much  more  force ; that  they  were  to  take  no  surplus  when 
the  water  was  at  that  state  that  it  ran  over  the  dam  at  Lake 
Cochituate.  Why,  gentlemen,  it  is  not  proposed  to  take  the 
water  to  Lake  Cochituate  at  all ; and  before  the  argument 
was  closed,  the  gentleman  announced  that  it  was  but  a tem- 
porary connection,  and  the  water  was  to  run  through  the 
great  conduit,  and  never  to  run  over  Lake  Cochituate  dam  at 
all.  And  what  becomes  of  that  provision,  and  what  becomes 
of  the  legal  consequences  that  attend  it,  according  to  the 
argument  of  the  counsellor  ? Why,  this  is  the  purpose  of  that 
clause  in  the  statute.  While  the  water  is  running  into  Lake 
Cochituate  through  the  new  channel, — through  the  channel 
that  at  the  time  the  act  was  passed  it  was  contemplated  would 
first  be  made, — while  it  is  running  there,  the  city  should 
not  waste  it,  and  they  should  not  draw  it  from  Sudbury 
river  when  it  would  run  over  the  Cochituate  dam ; but 
it  they  do  not  take  it  to  Cochituate  dam,  the  whole  force 


Closing  Argument  for  Petitioners. 


303 


of  that  argument  and  that  section  falls  to  the  ground. 
Furthermore,  suppose  they  were  to  run  it  through  Lake 
Cochi tuate,  what  was  the  last  grave  announcement  of  the 
counsellor?  That  they  were  going  to  make  us  a little 
better  off  than  we  ever  had  been  before,  by  building  reser- 
voirs that  would  contain  and  control  the  whole  of  this  water, — 
never  let  it  run  over  Lake  Cochituate  dam,  control  it  far 
back.  There  is  certainly  a little  inconsistency  in  urging 
these  two  things  to  the  commissioners. 

Again,  some  authority  and  much  able  argument  have  been 
employed  to  show  that  this  was  a taking  for  a public  use, 
and  therefore  not  only  to  be  treated  tenderly  by  the  com- 
missioners, but  to  be  treated  under  certain  rules,  that  under 
this  construction  would  take  from  private  persons  and  give  to 
the  public,  that  already  hath  much.  It  may  be  taken  for  a 
public  use.  W e yield  for  the  moment  all  the  learned  counsellor 
has  said.  Is  it  not  from  the  first  line  to  the  last  of  the 
statute  accompanied  with  a provision  that  it  shall  be  paid 
for?  The  taking  for  a public  use  has  no  other  significance 
than  that  it  clothes  the  parties  taking  with  authority  to  take. 
It  is  one  of  the  cases  where  one  does  not  make  a bargain. 
A private  person  cannot  take  your  property  without  a con- 
tract ; but  in  the  exercise  of  the  right  of  eminent  domain  no 
previous  contract  is  required.  It  is  allowed  where  the  pub- 
lic use  demands,  and  that  use  is  one  of  the  conditions  upon 
which  the  exercise  of  the  right  depends.  Therefore,  when  he 
speaks  of  this  as  being  for  a public  use,  and  the  counsellor 
endeavors  to  invoke  your  consideration,  because  it  is,  it  is 
claiming  no  more  than  we  concede  by  the  petition  ; that  it  is  a 
taking  of  this  property  under  the  authority  of  the  Common- 
wealth, with  a provision  that  when  taken  it  shall  be  paid 
for;  and  it  is  the  pay  that  we  are  now  seeking  at  your 
hands. 

Now,  I come  to  something  which  seems  to  me  to  involve 
very  much  the  same  class  of  argumentation.  That  is,  our 
right,  so  earnestly  attacked  by  the  counsellor,  to  damages 
or  compensation  for  the  value  of  our  water-power  for  its  use 
at  night.  We  ask  the  value  of  that  power.  We  own  it,  and 
I do  not  see  that  any  law  has  been  cited  here  which  forbids 
you  to  give  to  us  a compensation  for  its  destruction.  How 
you  are  to  reach  that  compensation  is  entirely  a different 
question ; but  that  we  are  entitled  to  the  full  value  of  the 
power  to  use  at  night,  nobody  can  doubt.  Valuing  it  upon 
such  conditions,  and  introducing  such  elements  of  calculation 
as  you  may,  what  it  is  worth,  what  the  balance  is  of  profit 
over  expenditures,  that  we  ought  to  have,  and  I do  not  see 
in  the  argument  of  the  counsellor,  or  in  the  authorities  he 


304 


Saxonville  Mills. 


has  cited,  anything  that  interferes  with  this  claim  ; and  we 
concede  that  we  suppose  the  uses  of  the  water  by  night  are 
accompanied  with  some  qualifications  of  the  value  of  the  use 
by  day  ; but  that  is  all.  We  could  sell  to  a paper-mill ; we 
could  erect  a paper-mill ; we  could  employ  that  water  at 
night ; we  have  employed  it  at  night,  as  we  shall  take  oc- 
casion hereafter  to  show,  by  citation  of  proofs  ; and  for  that 
we  wish  you  to  allow  us  compensation.  At  that  very  point 
of  his  argument,  your  Honors  will  remember  the  counsellor 
was  earnest  in  urging  the  early  erroneous  form  of  stating  the 
question  before  you  : We  were  not  to  be  paid  for  the  use 

of  the  water  at  night,  because  we  were  only  to  be  paid  for 
the  ordinary  use  of  the  water  as  we  then  had  improved  it, 
and  as  the  city  took  it.  No,  no  ; neither  as  the  city  took, 
nor  as  we  use  it,  are  we  content  to  have  our  damages  as- 
sessed ; but  as  we  owned  and  had  the  right  to  use  it.  The 
man  who  kills  my  horse  damages  me  just  as  much,  and  will 
be  mulcted  as  roundly  by  the  courts,  whether  I use  the  horse 
day  or  night,  or  both,  or  not  at  all.  It  is  the  value  of  what 
we  have,  and  what  the  city  has  destroyed,  that  must  be 
assessed  as  damage. 

The  next  position  taken  is,  that  we  have  only  fifty  horse- 
power at  our  mills  during  the  dry  months ; and,  to  show 
this,  the  counsellor  introduces  a table  to  show  the  gradual 
increase  of  work  done  at  our  mills  from  year  to  year.  1 do  not 
altogether  follow  out  the  mathematics  or  logic  of  the  argu- 
ment. I am  sure  it  is  an  unsatisfactory  method  of  showing 
the  increase  in  production,  embracing  five  different  articles, 
year  by  year,  for  him  to  read  down  the  column,  containing  the 
product  of  one  o'f  those  articles  for  a series  of  years.  I read 
from  the  tables.  In.  185 9 we  made  104,000  single  blankets, 
70  odd  thousand  pieces  of  piece  goods,  430,000  pounds 
of  sale  worsted,  288,000  pounds  of  yarns,  and  135,000 
pounds  of  box  worsted.  In  1875  (beginning  now  at  the 
lower  end  of  the  column),  we  made  218,000  single  blankets 
against  104,000  single  blankets  in  1859  ; we  made  848  yards 
of  piece  goods,  against  70,000  yards  in  1859  ; we  made 
74,000  pounds  of  sale  worsted,  against  430,000  pounds  in 
1859  ; we  made  181,000  pounds  of  yarns,  against  288,000  ; 
we  made  679,000  pounds  box  worsted,  against  135,000. 

Now,  footing  that  up  as  the  product  of  each  year,  it 
presents  not  altogether  so  large  an  increase  production  of 
the  last  year  over  the  first.  So  with  the  rest  of  the  table. 
I do  not  propose  to  occupy  your  time  in  going  over  each  one 
of  those  lists.  We  have  now,  as  we  are  informed  by  the 
witnessess,  a few  horse-powers,  all  the  way  from  25  to  60, 
— I think  one  of  them  said  50  or  60,  — more  than  we  had 


Closing  Argument  for  Petitioners. 


305 


in  1859.  I do  not  think  that  it  will  be  found  that  the  prod- 
uct has  increased  beyond  that,  taking  all  the  work  together 
as  shown  by  this  list.  If  it  has,  I do  not  see  that  it  bears 
very  essentially  upon  the  amount  of  water  that  runs  in  that 
stream,  or  was  wont  to  run  in  it,  before  the  city  took 
it.  I think  that  is  to  be  measured  by  something  very  much 
more  direct, — by  testimony  such  as  we  have  presented,  and 
such  as  has  gone  in,  in  the  Essex  Company’s  case  ; very  much 
more  direct  than  the  remote  testimony  gathered  from  results  ; 
results,  too,  which  grow  out  of  a stimulated  condition  of  trade, 
or  a condition  of  trade  low,  feeble. 

Mr.  Butler.  How  many  blankets  would  yon  have  made 
in  good  times,  if  in  the  year  1875,  in  & very  depressed  state 
of  trade,  you  made  218,000? 

Mr.  Hodges.  That  was  the  largest  turnout  but  one.  In 
1873  there  were  1,000  more  than  in  1875.  The  stimulus 
upon  a manufacturer  to  make  depends  measurably  upon  the 
state  of  trade,  but  it  may  depend  upon  his  particular  con- 
tracts. There  are  a thousand  unknown  conditions  that 
influence  a manufacturer  in  his  trade,  that  do  not  relate  to, 
or  in  any  way  expound,  the  power  he  is  using.  It  may, 
however,  be  observed  that  in  1862  we  report  92,000  blank- 
ets made,  against  358,000  yards  of  piece  goods  ; five  times 
as  many  as  had  been  made  in  any  of  the  previous  years 
reported,  and  very  many  more  than  have  been  made  any 
time  since.  It  would  seem  that  the  manufacture  of  piece 
goods  in  the  years  1862,  ’3,  ’4  and  ’5,  was  stimulated 
beyond  anything  else.  For  instance,  during  the  three  pre- 
vious years,  there  were  70,000  yards  of  piece  goods  each 
year,  while  in  1862,  358,000;  in  1863,  191,000;  in  1864, 
320,000;  and  in  1865,  197,000.  Then  it  falls  down  to 
41,000;  50,000;  44,000;  51,000;  13,000;  5,000;  2,000; 
2,000  ; 1,000  ; 800,  — falling  right  away.  This  would  seem 
to  be  the  main  increase  of  production  occasioned  by  the 
stimulus  of  the  war. 

Commissioner  Stevens.  What  do  you  mean  by” piece 
goods ”? 

Mr.  Hodges.  I do  not  know.  I assume  that  they  were 
flannels  and  goods  of  that  kind. 

Mr.  Butler.  I should  suppose  that  they  were  fancy 
cassimeres  or  something  of  that  sort. 

Commissioner  Francis.  I suppose  they  call  them  "piece 
goods  ” to  distinguish  them  from  blankets  ; anything  that  is 
made  in  long  strips  is  called  "piece  goods.” 

Mr.  Butler.  We  call  fancy  cassimere,  opera  cloths, 
and  all  that,  "piece  goods,”  and  shawls,  "shawls.” 

Mr.  Hodges.  The  column  of  sale  worsteds  may  be 


306 


Saxon yille  Mills. 


instructive  : in  1859,  there  was  430,000  pounds ; in  1860, 
there  was  396,000  pounds ; in  1861,  there  was  only  158,000 
pounds.  I think  that  may  he  explained.  In  1861,  the  war 
broke  out.  Early  in  the  year  it  was  threatened,  and  it  broke 
out  in  April,  and  articles  of  that  kind,  used  in  making  car- 
pets, were,  of  course,  of  very  doubtful  sale.  I am  only 
making  such  explanation  as  occurs  to  me.  Perhaps  I am  led 
to  it  a little  by  what  follows  : 201,000  in  1862  ; 275,000  in 

1863  ; 273,000  in  1864 ; 245,000  in  1865  ; 348,000  in  1866  ; 

254.000  in  1867;  172,000  in  1868;  276,000  in  1869 ; 

257.000  in  1870;  193,000  in  1871;  127,000  in  1872; 

188.000  in  1873  ; 150,000  in  1874. 

I notice  that  283, Q00  pounds  of  yarns  were  made  in  1859, 
with  only  96,000,  75,000,  and  44,000  in  the  yeark  1862,  ’3 
and  ’4.  The  worsted  yarns  were,  I suppose,  employed  for 
substantially  the  same  purposes. 

It  will  be  found  that  the  amount  of  goods  represented  in 
the  schedule  presented  to  you  would  show  no  material  change 
in  the  amount  of  power  used,  if  you  consider  that  in  1865  we 
introduced  perhaps  50  horse-power  more  of  machinery,  and 
at  the  same  time  Ewe  added  four  feet  to  our  dam,  creating  an 
increase  of  one-sixth  of  the  fall ; and  that  one-sixth  repre- 
sents more  power  than  the  increased  machinery  and  increased 
product  would  require. 

In  summer,  the  counsellor  tells  us,  that  we  substantially 
quit  using  the  water.  The  testimony  we  have  introduced 
will,  VI  think,  clearly  show  the  value  of  that  statement. 
At  no  time  during  the  forty  years  in  which  the  history 
of  that  water-power  has  been  presented  to  you,  during 
no  time  in  those  forty  years  has  there  been  water  in- 
sufficient to  carry  Mill  No.  3.  I do  not  forget  that  the 
mills  are  shown  to  have  stopped  twice,  only  twice,  since 
1829  ; but  at  no  time  have  the  mills  stopped  for  want  of 
water  to  run  No.  3,  which  took  all  the  way  from  fifty  to 
seventy  horse-power.  And,  it  will  be  remembered,  when 
we  were  upon  the  view  of  this  very  property,  the  commission- 
ers were  told  that  there  was  then  running  about  ten  million 
gallons  a day  in  the  duct  taking  Sudbury  river  to  the  city  of 
Boston.  That  ten  million  gallons  a day  is  equal  to  about 
ninety  horse-power  for  ten  hours.  Whatever  it  is,  the  com- 
missioners will  judge  of  it,  and  will  understand  it  quite  as 
well  as  I can  tell  them.  There  is  to  be  added  to  that  a 
million  and  a half  gallons  then  running  through  the  Saxon- 
ville  dam,  making  from  ten  to  eleven  millions  and  a half  of 
water  then  running  in  Sudbury  river  above  the  city  dam. 
Now,  from  the  last  day  of  July  to  the  day  we  saw  that  water 
running,  there  had  been  no  rain  equal  to  a good  June  dew. 


Closing  Argument  for  Petitioners. 


307 


There  had  been  the  whole  month  of  August  and  that  part  of 
September,  of  weather  unexampled  in  respect  to  heat,  in 
the  memory  of  any  of  us ; and  our  brother  Butler  has  told 
us  that  he  and  I are  pretty  old.  There  had  been  no  rain, 
and  an  evaporating  power,  the  like  of  which,  for  the  same 
length  of  time,  none  of  us  recall.  I do  not  think  it  is 
going  too  far  to  ask  you  to  believe,  that  in  the  forty  odd 
years  in  which  that  mill-power  has  been  presented  to  you, 
there  has  been  no  time  when  there  was  not  as  much  water  in 
the  river  as  was  running  the  day  we  were  there.  So  I say 
that  we  are  not  ready  to  admit  that  there  has  been  any  time, 
in  a dry  time,  when  there  was  not  more  than  50  horse-power 
there.  On  the  contrary,  we  show,  take  one  year  with 
another,  there  has  been  an  average  all  the  time  of  nearer 
100  horse-power,  and  never  a time  when  there  was  not 
enough  to  run  the  little  mill,  as  the  little  mill  was  then 
burdened. 

I have  thus,  gentlemen,  presented  to  you  the  views  I 
entertain  concerning  the  positions  taken  by  the  counsel 
for  the  city,  and  I come  now  to  ask  your  attention  to 
a few  considerations  (and  I will  not  be  very  lengthy) 
upon  our  side  of  the  case.  The  city  has  taken  away  from 
my  clients  property,  owned  and  used  by  them,  of  very  great 
value,  and  you  are  here  to  assess  the  damages.  I will  open 
the  argument  on  behalf  of  the  petitioners,  at  this  stage,  by 
saying  that  we  claim  that  there  is  water-power  there  equal 
to  325  horse-power  by  day  for  nine  months  in  the  year, 
and  a usage  by  night  so  added  to  that  as  to  make  a power 
equal  from  450  to  550  horse-power  for  the  year ; and  for  that 
we  claim  our  damages.  It  will  be  understood  that,  in  a matter 
of  this  kind,  we,  none  of  us,  have  a right  to  speak  with 
absolute  assurance  of  certainty.  We  are  dealing  in  all 
respects  with  quantities  that  must  be  varying  and  results 
that  must  be  uncertain,  when  the  test  of  figures  is  applied 
to  them.  We  have  seen  experiments  made  by  the  best 
hydraulic  engineers  in  the  land,  over  a series  of  many  years  ; 
and  yet,  with  science  and  instruments  and  long  perseverance, 
they  tell  you,  and  tell  you  truly,  that  they  cannot  state  the 
exact  result  for  any  particular  day  or  year,  nor  predicate 
from  existing  statistics  results  for  the  next  year  or  series  of 
years.  We  unfortunately  have  kept  no  records  of  the  uses 
or  amount  of  power,  and  I think  the  reason  for  it  is  obvious. 
The  mill  comjiany  owned  all  the  power  and  used  it  when- 
ever it  could  be  used,  and,  when  it  could  not,  supplemented 
or  supplied  it  with  steam.  And  why  should  they  spend,  as 
the  Essex  Company  has  spent,  $40,000,  $50,000,  $60,000  or 
$70,000  in  keeping  records  by  which  to  come  to  an  estimate 


308 


Saxonville  Mills. 


of  that  power?  We  might  have  done  it,  and  probably  should, 
if  we  had  supposed  that  the  compensation  was  to  be  based 
upon  that  when  the  city  had  seen  fit  to  take  our  property.  We 
did  not  suppose  that.  We  have  kept  no  records,  and,  in  the 
absence  of  records,  we  have  brought  to  you  the  best  evidence 
we  could  get,  — the  very  best ; the  most  intelligent  men  we 
knew,  who  had  been  longest  upon  that*  water-power  and 
knew  most  about  it,  because  it  represented  the  work  of  their 
hands.  They  knew,  because  they  used  it  and  dealt  with  it. 
At  the  time  of  which  they  have  spoken  they  knew  more 
about  it  than  anybody,  and  could  each  day  have  told  you  the 
measure  of  its  power  with  about  as  much  accuracy  as  any 
instrument.  We  now  present  the  aggregate  of  their  recol- 
lections. 

We  claim  here  damages  of  perhaps  three  kinds ; and  I 
would  dispose  of  the  two  lesser  in  importance  before  urging 
what  we  all  recognize  as  the  principal  subject  of  damage. 
The  value  to  the  Saxonville  mills  of  the  right  to  flow  back 
as  far  as  the  present  dam  flows  is  an  important  right,  in  con- 
nection with  the  right  of  the  corporation  to  the  power, 
because  it  is  the  source  of  the  power.  The  injury  done  to 
us  by  taking  that  away,  and  leaving  exposed  100  acres  of 
marsh  and  swamp,  is  a damage  of  another  character  and 
quality ; laying  bare  100  acres  of  land,  that  is  to  throw  out 
for  all  time  malaria  and  disease,  is  a matter  of  serious  con- 
sequence to  the  industry  of  that  village,  which  consists  in 
the  industry  carried  on  in  these  mills ; of  serious  conse- 
quence to  the  owners  of  those  mills,  as  it  diminishes  the  at- 
tractions of  the  place  to  the  operatives,  causes  higher  wages 
or  less  efficient  assistance  ; an  injury  appreciable,  not  meas- 
urable ; an  injury  directly  resulting  from  what  the  city  have 
done  ; an  injury  that  we  have  no  means  of  preventing.  The 
water  the  city  gives  us  will  not  fill  that  up  and  protect  us, 
and  our  condition  is  exactly  a pitiable  one  in  that  respect, 
in  view  of  conducting  manufacturing  operations  hereafter, 
under  the  power  which  we  can  afford  to  supply.  Now,  as 
that  diminishes  our  estate,  so  we  are  entitled  to  compensa- 
tion for  it ; I grant,  a compensation  which  it  will  be  difficult 
to  arrive  at,  as  it  is  difficult  to  arrive  at  damages  to  character, 
or  damages  to  beauty  ; but  nevertheless,  as  the  jurors  judge, 
so  the  damages  are.  The  same  thing  may  be  said  with  re- 
gard to  the  influence  of  taking  this  water  away  upon  the 
village.  Look  at  it.  Anywhere  in  the  wide  world  we  can 
take  coal  and  build  a manufacturing  establishment,  and  draw 
around  us  operatives,  and  do  very  well ; but  is  there  any 
place  as  good  as  one  where  there  is  a good  waterfall  ? The 
gentleman  tells  us,  " Supply  it  with  steam ; never  mind 


Closing  Argument  for  Petitioners. 


309 


water  ; supply  it  with  steam.”  You  can  supply  steam  where 
there  has  never  been  any  water-power ; but  if  you  have  water 
and  supply  steam,  you  have  two  elements  of  wealth.  And 
it  must  never  leave  the  minds  of  the  commissioners  that 
in  all  this  time  we  are  seeking  compensation  for  taking  the 
whole  of  what  we  had.  We  stand  very  differently  from 
many  of  the  parties  below  us.  Take  the  case  of  the  Essex 
Company,  for  example,  where  a fraction  of  their  water  is 
taken ; but  they  have  a vast  quantity  left  for  certainly  many 
of  the  purposes  of  water-power.  We  are  absolutely  drained; 
not  enough  left  for  the  ordinary  purposes  of  cleanliness. 
Enough  left  to  wash  the  wool,  but  not  enough  left  to  keep 
the  soil  wholesome.  Now,  the  influence  of  this  is  a matter 
which,  while  it  cannot  be  measured  with  accuracy,  does 
sound  in  damages,  and  may  be  measured  proximately.  I 
cannot  tell  you  in  figures  that  it  should  be  so  much,  nor, 
when  you  have  made  your  judgment,  can  you  say,  "We 
know  this  is  absolutely  right,”  but  you  can  say,  " It  is  as 
near  as  we  can  get  to  it and  we  ask  that  you  should  give  us 
such  damages  as  you  deem  just  for  the  injury  sustained  in 
these  respects. 

Again,  to  us  there  was  a value  in  the  right  to  set  back  the 
water  from  the  grist-mill.  We  had  a right  to  keep  the  grist- 
mill dam  as  it  was  originally,  six  feet,  now  a foot  and  a half 
or  two  feet  above  the  top  of  the  water,  as  it  is  set  back  by 
the  lower  dam.  The  height  of  that  dam  was  in  other  days 
important  to  us  as  keeping  back  the  water,  and  enabling  us  to 
employ  in  the  day  what  was  thus  kept  back  at  night.  That  is 
made  useless  now.  The  argument  that  we  are  not  to  be  paid 
for  that,  as  well  as  most  of  the  argument  that  has  been  made 
upon  the  subject  of  payment,  is  not  unfairly  to  be  compared 
to  the  argument  that  I have  heard  made  in  this  manner. 
" Why,  the  value  of  a gallon  of  water  to  the  City  of  Boston 
is  what  we  are  to  pay,  that  is  all.”  Then,  would  they  not 
do  as  well  to  take  the  gallon  of  water  below  our  dam  as  above 
it?  All  they  get  is  the  gallon.  Why  not  take  it  below  our 
dam,  and  not  do  us  a mischief?  They  saw  fit  to  take  it  above, 
and  now  they  must  pay  us  for  the  value  of  that  water  up 
there.  And,  still,  it  is  only  a gallon  of  water.  It  is  only 
such  a mass  of  particles  of  moisture.  I am  unable  to  see 
wherein  this  has  not,  not  only  an  appreciable  value,  but  one 
for  which  we  are  justified  in  coming  to  you  for  payment,  and 
should  not  be  justified  in  not  demanding  that  it  shall  receive 
your  earnest  attention,  and  take  its  place  in  the  catalogue  of 
actual  damages  for  which  we  are  to  be  compensated. 


310 


Saxon ville  Mills. 


We  come,  then,  gentlemen,  to  the  substantial  question 
before  us  : what  damages  are  to  be  awarded  to  us  for  depriv- 
ing us  of  the  power  the  water  previously  afforded  ? And 
there,  once  for  all,  I would  say,  that  I leave  with  you  to 
judge  the  value  of  the  fall  at  the  grist-mill  as  power.  I have 
spoken  of  its  value  in  another  respect,  but  as  poiver.  And 
when  you  estimate  the  amount  of  power  there  is  below,  you 
wTill  have  before  you  the  means  of  estimating  with  accuracy 
the  value  of  that  power  at  the  grist-mill.  Applying  such 
rules  as  you  have  for  estimating  power,  and  fixing,  as  you 
will  do,  the  amount  of  power  at  the  place  below,  you  will 
have  the  formula  by  which  you  will  estimate  the  power  there. 
And  that  brings  us  then  to  the  manufactory  dam. 

I have  made  some  calculations  concerning  that  power,  and 
such  figures  as  I have  made  have  been  based  upon  the  theory 
that  the  dam  was  twenty-six  feet.  My  figures  are  not  numer- 
ous, but  whatever  they  are,  they  have  been  based  upon  the 
theory  that  the  dam  was  twenty-six  feet  high.  Mr.  Frizzell 
puts  it  at  twenty-five  and  a half  feet,  I think ; but  he  takes 
it  from  the  top  of  the  flash-boards,  and  does  not  include  the 
fall  below.  So  that  I believe  we  shall  find,  in  making  the 
estimate,  that  twenty-six  feet  is  a fair  estimate  of  the  height 
of  the  fall. 

Considering  that  that  is  the  basis,  the  next  question  is,  how 
much  water  passed  over?  And  that,  your  Honors  will  say  is 
the  critical  question  to  be  dealt  with.  How  much  involves 
time  as  well  as  bulk.  One  of  the  elements  of  horse-power  is 
time,  and  in  this  respect,  and  in  this  inquiry,  so  far  as  we  are 
concerned,  we  shall  treat  the  subject  by  horse-power.  The 
testimony  before  us  seems  to  deal  with  that  in  perhaps  three 
sections.  Speaking  more  strictly,  possibly  it  would  be 
reduced  to  two.  But  we  shall  ask  you  to  consider  the  ques- 
tions ; they  will  be  gathered  under  these  heads  : — 

First.  What  does  the  scientific  testimony  establish  as  the 
measure  of  that  water-power  ? 

Second.  How  shall  we  measure  it  by  the  phenomena  that 
are  to-day  visible  ? 

Third.  What  measure  shall  we  fix  to  it  through  the 
testimony  of  witnesses  looking  back  over  the  past  ? 

That  will  be  the  manner  in  which  I shall  endeavor  to 
represent  that  branch  of  my  clients’  right. 

[. Adjourned  to  Friday,  at  9^  o'clock.'] 


Closing  Argument  for  Petitioners. 


311 


Friday,  Sept.  29,  1876. 

Mr.  Butler.  I desire  to  call  the  attention  of  the  com- 
missioners to  one  point  made  by  the  gentleman  on  the  other 
side  ; that  is,  that  in  drawing  off  the  water  from  the  Sudbury 
river  above,  we  may  so  diminish  the  amount  of  water  on  the 
lands  adjacent  to  Saxonville,  as  to  injure  the  health  of  the 
village,  and  so  depreciate  the  value  of  property  in  the  vil- 
lage. That  is,  as  I understood,  his  argument.  I do  not 
want  to  make  any  observations  on  the  question  of  fact,  but 
simply  to  state  my  views  of  the  law,  — that  that  is  not  an 
element  of  damage  which  you  can  estimate.  If  we  do  that, 
we  shall  be  doing  a public  nuisance,  which  would  not  be  per- 
mitted for  an  hour ; and  it  is  not  to  be  presumed,  that  in 
using  our  rights  under  the  act  to  supply  the  City  of  Boston 
with  pure  water,  we  are  going  to  commit  a public  nuisance 
and  injure  the  public  health ; and  therefore  the  people  on  the 
line  of  the  river  can  have  damages  for  that  injury.  There 
will  be  two  reasons  for  it : first,  being  a public  injury,  an  in- 
jury to  the  public  health,  nobody  can  have  a private  right  of 
action,  unless  he  has  some  special  damage,  differing  in  kind, 
not  in  degree,  above  every  other  inhabitant  of  that  village. 
Second,  that  it  is  not  a necessary  consequence  of  taking  the 
water  in  a proper  manner,  and  it  is  not  to  be  presumed  that 
it  will  be  taken  by  the  City  of  Boston  in  an  improper  manner, 
deleterious  to  the  public  health.  The  principle  that  you  can- 
not have  a private  action  for  a public  nuisance  is  settled  in 
the  case  of  Howard  and  the  Locks  and  Canals,  against  the 
Lowell  & Nashua  Railroad. 

Mr.  Hodges.  If  the  property  of  the  Saxonville  Company 
is  injured  by  the  exposure  of  the  bottom  of  the  pond,  they 
should  be  entitled,  under  the  great  rules  of  law,  to  compen- 
sation, whether  the  act  amounts  to  a public  nuisance  or  not, 
where  the  taking  is  associated  with  other  actionable  injuries 
committed  in  the  act  of  taking.  I am  aware  that  the  act  of 
a trespasser  or  wrong-doer,  or  persons  wielding  eminent  do- 
main, if  it  amounts  to  a nuisance,  may  be  remedied  by  the 
common  forms  of  procedure  provided  by  law  ; but  I am  not 
aware  that  where  the  law  gives  parties  a remedy  for  a spe- 
cific act,  though  that  be  done  in  the  exercise  of  eminent  do- 
main, the  injury  arising  from  that  is  not  to  be  grouped  with 
the  other  injuries  for  which  the  statute  provides  — the  very 
statute  relied  upon  in  this  case  which  transfers  the  authority 


312 


Saxon ville  Mills. 


from  the  direct  custody  of  the  Commonwealth,  the  sovereign, 
to  the  party  whom  it  has  authorized  to  wield  this  power. 

That  would  be  the  first  answer  I should  make  to  the  propo- 
sition of  the  counsellor.  The  next  answer  I make  is,  that 
this  is  a special  injury.  They  take  the  water  away  from 
the  Saxonville  Company,  and  in  so  doing  lay  bare  its  lands, 
and  poison  the  atmosphere  of  its  adjoining  property.  The 
books  are  full  of  cases  which  show  that  if  we  do  not  now 
receive  compensation  for  that  injury,  we  never  can. 

Before  entering  upon  the  remaining  and  substantial  argu- 
ment which  I desire  to  make  in  this  case,  and  which  I 
marked  out  to  your  Honors  last  evening,  I am  warned  that 
it  is  possible  I have  not,  with  sufficient  clearness,  stated  a 
proposition  of  law  of  some  consequence  ; consequence,  I 
must  admit,  enhanced,  if  not  absolutely  created,  by  the  im- 
portance attached  to  it  by  the  counsel  for  the  city.  I refer 
to  the  question  raised  by  the  counsel  concerning  the  intent 
of  the  Legislature  upon  the  question  of  damages,  and  in 
respect  to  the  prospective  taking  by  the  city,  from  time  to 
time,  as  the  needs  of  the  city  hereafter  require.  And  the 
form  in  which  I should  state  our  proposition  of  law  would  be 
this  : The  Legislature  considered  that  the  whole  value  of  the 
petitioner’s  estate  or  right  is  appropriated  when  the  taking 
required  by  the  statute  is  filed,  and  when  the  water  or  any 
part  of  it  is  first  diverted  under  the  act ; and  so  far  as  you, 
gentlemen  commissioners,  are  appointed  by  the  Court  to 
deal  with  this  subject,  you  are  to  consider  it  and  to  estimate 
the  damages  according  to  that  proposition.  Let  us  for  a 
moment  consider  that  proposition  as  applied  to  the  condi- 
tion of  things  now  at  this  juncture  under  consideration. 
The  city  have  offered  no  proof  of  any  purpose  to  delay 
taking  the  whole  of  that  water,  excepting  a million  and  a 
half  gallons.  Had  they  offered  proof,  it  would  have  been  a 
subject  of  consideration,  and  possibly  of  contest,  at  the 
time ; they  have  offered  none  whatever.  Then  the  proof 
that  is  before  us  is  a solemn  decree  of  the  City  Council 
of  Boston,  announced  through  the  Water  Board,  the  parties 
designated  by  the  statute  to  act  in  that  behalf,  that  they 
"hereby  take  the  whole  waters  of  Sudbury  river.”  No  proof 
is  made  or  indicated,  qualifying  the  absolute  and  compre- 
hensive character  of  the  written  terms  of  that  solemn  vote 
of  the  authorities  of  the  city.  Now,  it  strikes  me,  if  we 
have  any  fact  in  this  case  that  we  may  argue  from  with  a 
certainty  that  it  has  been  established,  — it  is  the  taking  by 
the  city  of  the  whole  water  of.  that  river.  If  we  may  be 
permitted  to  follow  the  counsel  of  the  city  into  the  field 
of  conjecture  a little  way,  we  may  well  test  the  value  of 


Closing  Argument  for  Petitioners. 


313 


what  we  have  here  proved.  It  is  announced  that  it  is 
doubtful  whether  this  taking  is  the  taking  contemplated 
by  the  statute,  and  announced  in  the  paper  filed  by  the 
city,  to  which  I have  referred,  because  they  have  taken 
the  water  through  the  ditch  cut  in  1872,  instead  of  through 
the  brick  and  iron  and  granite  conduit,  a little  more  aristo- 
cratic duct  through  which  to  appropriate  our  property. 
They  have  taken  it,  but  it  is  questionable  whether  it  is  a 
taking,  because  it  does  not  run  through  the  appropriate  con- 
duit. I do  not  answer  that  argument,  because  it  is  too 
trivial ; but  I will  endeavor  to  improve  upon  it.  Through 
the  present  ditch,  all  the  water  of  Sudbury  river,  in  an 
ordinary  time,  cannot  run ; when  the  conduit  is  finished  it 
all  can  run.  Now,  suppose  a railroad  corporation  files  its 
taking  of  a particular  piece  of  land,  and  then  delays  build- 
ing over  that  land  because  the  track  has  not  yet  come  so  far 
along, — are  they  to  say  that  they  have  not  taken  the  land? 
Are  they  to  say  that  possibly  they  may  never  take  it?  Fol- 
lowing again  in  this  direction,  are  we  to  suppose  that  when 
the  conduit  is  finished,  and  the  City  of  Boston  does  not  need 
for  its  sanitary  purposes  the  whole  amount  of  Sudbury 
river,  A,  B,  C and  D,  in  the  City  of  Boston  will  not  be 
willing  to  pay  for  the  surplus  waters  of  Sudbury  river  for 
mechanical  purposes?  We  know  they  will.  It  is  not  in 
proof,  but  we  all  know  that  such  is  the  purpose  of  the  city, 
— to  sell  this  water  for  mechanical  purposes.  And  how, 
then,  do  we  stand?  The  city  does  not  wish  to  pay  us 
for  this  water,  because  she  does  not  need  it  at  present,  and 
the  argument  to  you  is,  that  until  the  city  increases  in  popu- 
lation ,very  materially  they  will  not  need  it,  and  so  the 
water  will  continue  to  run  in  Sudbury  river.  But  when  you 
have  rendered  your  judgment,  and  in  that  judgment  have 
considered  this  fact  and  diminished  our  damages  because  the 
city  were  not  now  prepared  to  take  all  the  water,  suppose 
the  city  should  finish  the  new  and  enlarged  conduit,  open 
the  gates,  and  take  the  whole  river  and  sell  the  water 
that  they  have  not  paid  us  for,  your  judgment  justifying 
them  in  not  paying,  they  sell  that  very  article  to  any  person 
who  f^ees  fit  to  buy  it  to  use  in  the  City  of  Boston  for  the 
very  purposes  that  gave  it  a value  to  us.  When  the  whole 
of  this  i.s  done,  and  we  then  come  forward  and  apply  to  the 
Court  for  a further  assessment  of  damages,  and  show  by 
you  gentlemen,  and  show  by  all  others,  that  we  did  not 
have  awarded  to  us  the  proper  amount  of  damages,  because, 
when  we  were  before  you,  you  were  made  to  believe  that 
the  city  did  not  intend  to  take  the  whole  of  that  water  for 
forty  years,  and  so  you  rendered  us  diminished  damages 


314 


Saxonville  Mills. 


(as  you  certainly  would  if  that  was  a legitimate  view  of  the 
case) , the  Court  would  put  its  hand  upon  our  application, 
deny  our  right,  and  say  to  us,  "You  sought  damages  before 
a competent  tribunal ; they  have  given  you  damages,  and 
that  damage  covers  the  whole  claim  for  the  whole  of  the 
transaction.”  We  should  get  no  more,  and  the  City  of  Bos- 
ton would  appropriate  to  its  treasury  the  avails  of  the  sale 
of  this  very  water  for  which  you  have  not  allowed  us,  and 
we  have  never  received,  compensation.  Such  is  my  poor 
reply  to  the  positions  and  argument  of  the  counsellor  of  the 
city.  I now  return  to  the  main  claim  of  the  petitioner. 

This  case,  gentlemen,  is  one  of  very  grave  consequences. 
Few  of  us  deal  with  questions  involving  more  money  in  any 
form  in  which  questions  come  before  judicial  tribunals,  and 
if  I delay  you,  if  my  argument  extends  to  tediousness,  it 
will  be  only  because  I feel  that  the  interests  of  my  clients  are 
of  such  magnitude  that  I must  waive  any  desire  of  my  own 
to  relieve  you,  and  devote  such  energies  as  I have  to  their 
protection.  The  subject,  as  I left  it  last  night,  was  this 
morning  to  be  considered  in  three  aspects  before  approaching 
the  figures  of  damages.  I was  to  ask  you  this  morning  to 
hear  what  I had  to  say  upon  the  subject,  first,  of  the  scien- 
tific proof  before  us  concerning  the  amount  of  power  created 
by  the  river  at  our  dam.  Secondly,  that  quasi  scientific 
proof  that  is  involved  in  the  present  phenomena  that  have 
passed  under  your  personal  observation,  or  been  presented 
in  proof  before  you  ; and,  third,  to  consider  the  testimony 
of  witnesses  speaking  from  memory,  and  tendering  to  you 
their  judgment  concerning  the  amount  of  that  power.  To 
the  discussion  in  these  aspects  I now  invite  your  attention, 
and  I will  endeavor  to  make  my  statement  as  brief  as  the 
case  will  permit. 

And,  firstly,  it  will  be  obvious,  that  the  tests  of  science  in 
this  case  can  be  most  appropriately,  and  perhaps  exclusively, 
applied  through  an  examination  and  estimation  of  the  water- 
shed. There  being  no  measurements  in  our  hands  for  a 
series  of  years  from  which  we  can  state  to  you  the  exact 
amount  of  water  or  approximate  the  amount  of  power,  we 
must  necessarily  turn  to  the  water-shed  as  the  basis  ,of  all 
our  scientific  calculations.  You  will  have  observed,  gentle- 
men, and  I desire  you  should  consider  that  feature  of  it, 
that  the  water-shed  in  this  case  is  embraced  within  the  ridges 
or  " divides,”  as  they  are  termed  in  some  parts  of  the  coun- 
try, which  turn  the  waters  on  the  one  side  into  Charles  river, 
and  ou  the  other  side  into  Sudbury  river ; at  the  extreme 
sources,  on  the  one  side  into  the  Blackstone  and  the  other 
into  the  Sudbury,  and  on  the  north,  the  one  side  into  the 


Closing  Argument  for  Petitioners. 


315 


Assabet,  and  again  into  the  Sudbury.  Whether  at  the  ex- 
treme northwest  there  is  an  interlocking  of  the  waters  of  the 
Nashua,  running  around  the  sources  of  the  Assabet,  I cannot 
say.  I do  not  think  there  is.  Embraced  within  that  is  an 
area  of  73  square  miles.  It  is  called  by  some  of  the  wit- 
nesses 72.3  miles.  The  city  speak  of  it  in  the  report  of 
1872  as  73  miles.  In  another  place,  it  is  spoken  of  as  72, 
excluding  the  water-shed  of  Farm  pond ; a ring  within  a 
ring.  Those  73  miles  we  shall  take  as  the  basis  of  such 
small  calculations  as  we  have  made,  and  the  witnesses  have 
presented.  The  witnesses  certify  that  its  qualities  of  retain- 
ing and  disbursing  the  water  are  of  fair  average  of  the  other 
water-sheds  in  the  vicinity.  It  is  proper  to  say  that  I refer 
to  the  water-shed  above  the  city  dam , not  to  anything  below. 
It  is  admitted,  and  it  will  so  appear  on  the  71st  page  of  the 
report  of  the  Essex  Company  case,  to  be  a water-shed  of 
fair  average  quality  in  respect  to  its  capacity  for  retaining 
and  paying  out  the  water  received. 

The  next  aspect,  and  the  most  important  one,  in  which 
I wish  to  present  this  basin,  is  the  amount  of  rain  which 
may  be  calculated  upon  to  fall  within  its  borders.  Now, 
so  far  as  we  are  concerned,  we  have  no  rain-gauge,  and 
know  of  none  kept  above  our  dam.  We  have,  and  it  is 
in  evidence  here,  the  rain-gauge  of  the  city,  taken  nearest 
this  point,  which  we  shall  present  to  you.  That  rain-gauge 
is  kept  at  Lake  Cochituate,  and  our  position,  first,  in  respect 
to  this  matter  of  rainfall  in  that  district  is,  that  the  records 
of  the  rain-guage  at  Lake  Cochituate  are  to  govern  entirely 
and  exclusively.  It  is  within  the  same  water- shed,  it  is  sub- 
ject to  the  same  climatic  exigencies,  the  same  topographical 
influences,  the  same  currents  of  air  and  of  electricity,  — all 
of  which  control  and  command,  to  use  the  stronger  word, 
the  rainfall  of  the  Cochituate  basin.  That  one  rain  district 
differs  from  another,  — differs  from  another  marching  with 
it  in  boundaries, — we  all  kpow.  It  is  not  for  me  to  tell 
experienced  gentlemen  that  the  rainfall  in  one  water-shed 
differs  essentially  from  the  rainfall  in  another  adjoining. 
Perhaps  the  most  remarkable  instance  that  we  have  recorded 
is  that  on  the  western  coast  of  Norway,  where  on  the  one 
side  of  the  hills  the  rainfall  is  about  eighty-two  inches  per 
annum  ; on  the  other  side  (the  east  side) , within  a rifle-shot, 
it  is  about  forty-two  inches,  — almost  double  in  the  one  case 
what  it  is  in  the  other,  — and  with  the  varying  changes  that 
obtain  in  every  district  that  will  be  the  average  for  the  whole 
of  the  century.  The  same  thing  occurs  everywhere,  differing 
in  degree.  Now,  in  the  absence  of  all  other  measurements, 
we  are  justified  in  asking  you  to  assume  that  that  rain-gauge, 


816 


Saxonville  Mills. 


as  kept  by  the  city,  by  men  whose  abilities,  exercised  under 
circumstances  to  bring  those  abilities  out  to  the  utmost,  has 
been  well  kept.  And  we  shall  act  with  the  assurance  that  it 
is  an  established  fact  that  the  rain-gauge  of  Lake  Cochituate 
is  the  rainrgauge  that  governs  this  basin  and  controls  our 
calculations. 

By  that  rain-gauge,  found  on  the  fiftieth  page  of  the  report 
of  1876  (it  is  matter  that  has  been  put  in),  beginning  with 
1856  and  descending  for  twenty  years  to  the  present  time, 
the  average  rainfall  is  50.19  inches.  I refer,  in  support  of 
this,  to  Mr.  Mills’  statement  on  the  seventy-second  page  of  the 
report  of  Essex  Co.  case.  Assuming  that  to  be  the  rainfall  in 
this  district,  our  proposition  is,  and  we  shall  endeavor  to 
maintain  it,  that  the  produce  of  that  district  will  be  334  horse- 
power exerted  all  day  for  the  313  working  days  of  the  year. 
I have  made  a statement  of  that,  which  I will  read  with  the 
view  of  illustrating  the  proposition  that  I insist  upon.  The 
theory  advanced  all  the  way  through  this  case  has  been  that 
for  each  square  mile  of  water-shed  one  cubic  foot  of  water 
will  be  delivered  to  the  mill  upon  a rainfall  of  forty-three  or 
forty-four  inches.  Such  has  been  the  calculation,  made  upon 
such  a rainfall  in  many  of  the  districts,  and  such  is  the  state- 
ment in  the  city  documents.  Now,  if  44  inches  will  give  to 
the  mill  one  foot  of  water,  50.19  inches  will  give,  not  proba- 
bly six  inches  more,  but  will  give  more  than  the  proportion 
existing  between  twelve  and  forty-four  inches  ; and  the  rea- 
son for  it  is  obvious.  There  are  certain  demands  upon  the 
tall  of  rain  that  must  first  be  exhausted ; the  soil  and  the 
sky  will  take  so  much,  evaporation  and  absorption  exact  so 
much,  without  any  regard  to  the  rights  of  the  mill-owner, 
and  it  is  understood  that  of  the  forty-three  or  forty-four 
inches  average  rainfall  in  the  great  district  that  was  under 
consideration  the  other  day,  this  amount,  to  wit,  about 
thirty-two  inches,  will  be  exacted  by  the  soil  and  the  air, 
leaving  twelve  inches  for  the  river.  When  the  soil  and  the 
air  have  been  satisfied,  then  come  other  rights.  Now,  the 
soil  and  the  air  have  taken  most  of  the  forty-four  inches ; 
and,  being  first  served,  their  demands  have  been  substan- 
tially satisfied  with  thirty-two  inches.  I believe,  then,  it  is 
fair  to  say,  that,  if  in  a rainfall  of  forty-four  inches  the  mill- 
power  gets  one  foot,  in  a rainfall  of  fifty  inches  the  mill- 
power  will  get  sixteen  inches.  The  learning  and  experience 
of  this  board  will  correct  me  if  I am  wrong,  but  I believe 
that  this  is  a fair  calculation.  However  scientific  may  be  the 
witness  or  the  party,  we  are  all  of  y.s  dealing  here  with 
unknown  quantities,  and  cannot  assert  absolute  results ; or, 
if  we  have  known  quantities,  they  are  presented  with  vary- 


Closing  Argument  for  Petitioners. 


317 


ing  conditions  which  qualify  the  results  to  an  equal  extent 
that  would  be  done  if  the  quantities  were  unknown.  In  this 
view,  if  this  is  not  a fair  and  candid  calculation,  I shall 
cheerfully  submit  to  the  correction  of  those  whose  judgment 
and  learning  far  exceed  mine,  and  who  stand  in  no  position 
ot  prejudice. 

If  I am  right  in  this  basis  of  calculation,  the  proposition 
would  be  stated  something  in  this  way  : Seventy-three  square 
miles,  one  foot  to  the  mile,  add  four-twelfths  of  a foot  for 
the  rainfall  exceeding  forty-four  inches,  and  we  should  have 
in  that  district  of  seventy-three  square  miles  ninety- seven 
and  one-third  cubic  feet  per  second.  That  would  yield  two 
hundred  and  eighty-seven  and  one-half  horse-power  per  day 
of  three  hundred  and  sixty-five  days,  or  three  hundred  and 
thirty-four  horse-power  for  three  hundred  and  thirteen  days 
in  the  year,  counting  all  that  time  the  uses  of  power  in  the 
day-time  not  kept  back  at  night.  Our  night  work  we  pro- 
pose to  deal  with  hereafter. 

Thus,  gentlemen,  we  assert  as  the  first  member  of  our 
proposition,  that  fair  calculations  entitle  us  to  claim  that  334 
horse-power  is  the  measure  of  the  water  taken  from  us  by 
the  city.  Perhaps  it  is  fair  to  say  now  that  our  claim  ex- 
tends to  but  three-quarters  of  the  year.  Let  that  be  under- 
stood all  the  way  through  the  case,  and  save  any  restatement. 
I desire  to  state  our  propositions  fairly,  and  to  prove  them 
fairly. 

I now  ask  your  attention  to  a second  form  of  proof,  which 
I believe  confirms  the  statement  I have  made.  The  Wame- 
sit  dam,  in  a dry  time,  says  Mr.  Mills,  shows  from  40  to  55 
cubic  feet  per  second  for  the  Sudbury  river.  " This  is  in  a 
dry  time”  — repeated  by  the  witness.  Now,  if  we  take  as  a 
mean  and  say  50  feet  per  second  of  Sudbury  water,  in  a 
dry  time,  falls  over  Wamesit  dam,  let  us  calculate  from 
that,  and  see  where  we  shall  come.  That  will  produce  172^ 
horse-power  per  day  of  24  hours,  calculating  313  days  in  a 
year.  On  the  87th  page  of  the  Essex  Company  case,  Mr. 
Mills  says,  in  answer  to  the  question,  — "Do  you  believe 
there  is  as  much  water  comes  down  from  the  upper  Sudbury 
river  to  the  Wamesit  dam,  as  there  would  be  in  ordinary 
streams,  taking  into  consideration  the  meadows  ? ” — " I don’t 
believe  that  the  same  water  that  starts  from  the  upper  Sud- 
bury, — that  so  large  a proportion  of  the  same  particles  of 
water  that  start  from  the  upper  Sudbury,  — gets  to  Wamesit 
dam  as  if  there  were  not  a larger  than  usual  evaporating  sur- 
face between  the  two.”  Further  on  he  says,  that  there  would 
be  about  200  cubic  feet,  from  that  to  225  cubic  feet  per  sec- 
ond, arrive  there,  including  Assabet  river, — including  the 


318 


Saxonyille  Mills. 


whole.  On  the  90th  page  he  is  asked,  " Well,  what  propor- 
tion? How  much?”  and  he  says,  "Well,  I have  no  ques- 
tion that  there  is,  after  the  taking  of  this  water  from  the 
upper  Sudbury,  sufficient  water  coming  in  to  supply  evapo- 
ration, and  for  all  wastage  in*  the  territory  below,  so  that 
the  cutting  off  of  this  upper  Sudbury  water  would  be  a re- 
duction of  the  quantity  at  Wamesit  dam,  or  at  Lawrence, 
by  just  the  amount  of  water  so  #cut  off. 

" Q.  I suppose  that  is  so  ; but  what  I want  to  get  at  is, ' how 
much  ? ’ 

" A.  Oh,  the  yield  of  the  upper  Sudbury  is  about  40  to 
55  cubic  feet  per  second,  in  a dry  time. 

" Q.  That  is  for  the  whole  24  hours? 

" A.  Yes,  sir. 

" Q.  And  by  a ' dry  time,’  do  you  mean  the  ordinary  dry 
months  of  the  year? 

"A.  Yes,  sir,  that  is,  that  would  be  the  smallest  quantity 
that  would  be  derived  from  that  river.” 

Now,  gentlemen,  in  a very  dry  time,  the  dryest  time,  for 
a brief  period,  40  to  55  cubic  feet  runs  in  the  Sudbury  river, 
or,  as  Mr.  Mills  expresses  it,  " reaches  Wamesit  dam.”  I take 
it,  if  we  can  rely  upon  the  understanding  of  any  scientific 
gentlemen,  in  respect  to  hydraulics,  it  is  Mr.  Mills,  when 
he  has  had  an  opportunity  to  examine ; and  if  we  can  rely 
upon  the  sensitive  truthfulness  of  any  witness,  we  can  upon 
Mr.  Mills,  and  his  testimony  would  give  us  all  that  we  claim. 
That  is,  it  would  give  us,  in  the  dry  time , 172  horse-power  for 
12  hours  of  the  day.  It  is  more  than  we  have  asserted  we  have  ; 
and  I believe  we  always  have  that ; but  it  is  more  than  we 
have  endeavored  to  establish  before  you  as  our  claim ; for  it 
will  be  remembered,  that  this  is  after  all  the  evaporation  of  an 
evaporating  surface,  certainly  exceptional.  Sudbury  mead- 
ows have  vexed  the  Commonwealth  for  half  a century  as 
the  receptacle  of  the  waters  of  Sudbury  river;  Fairhaven 
bay,  and  the  other  extended  parts  of  the  river,  expose 
an  evaporating  surface  certainly  not  usually  found.  But 
notwithstanding  all  that,  and  jail  the  wastage,  this  is  the 
opinion  of  Mr.  Mills,  as  to  what  comes  to  the  Wamesit 
dam.  And  the  result  of  that  is,  if  you  take  Mr.  Mills’  state- 
ment, that  172  horse-power  of  water  runs  over  our  dam  every 
day  in  the  dry  time.  If  we  start  with  that,  using  that  only  in 
the  dry  time,  your  Honors  will  observe  that  it  would  give  us 
244^  horse-power  per  day,  employing  it  only  12  hours  per 
day  in  the  dry  time. 

These  two  branches  of  evidence  we  have  cited  to  you  in 
support  of  a theory,  because  they  present  all  that  we  have, 
in  the  nature  of  scientific  test,  with  which  to  aid  you  in 


Closing  Argument  for  Petitioners.  319 

your  considerations  of  this  question.  We  are  unfortunate 
in  not  being  able  to  present  to  you  tests  such  as  appeared 
in  the  other  case  ; but  you  will  readily  see  that  our  power  is 
not  sufficiently  large  to  justify  the  expenditure  such  experi- 
ments demand,  and,  certainly,  when  there  was  no  call  for  it. 

The  second  branch  of  our  proof,  which  is  to  be  derived 
from  observable  phenomena  to-day,  I took  occasion  to  allude 
to  in  the  remarks  made  yesterday ; but  I will  again,  and 
more  in  detail,  refer  to  it.  Upon  the  view  we  took  early  in 
the  month,  we  were  told  that  there  were  from  8,000,000  to 
10,000,000  gallons  running,  at  that  time,  in  the  sluice.  Add 
to  that  a million  and  a half  gallons,  running  in  the  river, 
and  you  have,  I say,  11,500,000  gallons  running  in  Sudbury 
river,  at  the  time  of  our  view.  That  would  produce  60  j- 
horse-power  per  day  of  twenty-four  hours,  or  120J-  horse- 
power during  a day  of  twelve  hours.  Now,  I need  not  re- 
peat that  that  was  as  dry  a time  as  any  of  us  remember.  I 
need  not  further  repeat,  that  the  estimate  was  made  by  the 
eye ; and  yet,  with  all  that,  we  find  that  for  the  day  there 
was  running  sixty  horse-power.  If  your  Honors  will  do  me 
the  favor  to  bear  that  number  in  mind,  we  may  have  occa- 
sion, as  we  look  at  the  oral  testimony  introduced  to  you,  to 
admire  a coincidence  in  the  figures. 

Bear  with  me.  I now  ask  your  attention  to  the  third 
branch  of  this  proof  that  we  have  introduced,  to  establish 
the  quantity  of  the  power  the  City  of  Boston  has  taken  from 
us.  In  this,  I refer  to  the  testimony  of  the  witnesses. 

First,  consider  the  proof  before  you  of  the  machinery,  as  it  is 
now  in  the  mill,  and  as  measured  by  Mr.  Webber.  We  take 
this  as  the  basis  upon  which  our  calculations  are  made,  and  as 
supporting  the  proof  that  follows.  He  says,  that  in  the  mill 
No.  1,  there  is  240  horse-power;  in  mill  No.  2,  there  is  85  ; 
making  325  horse-power.  I leave  out  the  fractions.  Add 
to  this,  machinery  amounting  to  ten  horse-power  in  the  base- 
ment of  mill  No.  4,  carried  by  the  engine,  that  Mr.  Webber 
did  not  measure ; and,  in  support  of  this,  I cite  as  authority 
Mr.  Hill  and  Mr  Webber  both.  That  makes  ten  more  horse- 
power. Thus  giving,  as  the  sum  of  the  horse-power  required 
to  move  the  machinery  in  the  mill,  335.  This  is  about  fifty 
to  seventy-five  horse-power  more  than  was  used  in  1830,  and 
from  that  time  to  1844.  In  1830,  the  mills  were  running, 
and  the  testimony  shows  us  that  fifty*  to  seventy-five  horse- 
power was  then  used  less  than  is  now  used.  All  the  wit- 
nesses— French,  Gibbs,  Carter,  Watson,  and  Hill — set  it  at 
about  that. 

Mr.  Butler.  Do  you  understand  that  your  engine  of 
1844  ran  all  your  mills,  except  No.  3? 


320 


Saxon ville  Mills. 


Mr.  Hodges.  No,  sir;  it  was  not  attached  to  No.  2 at 
all.  It  neither  ran  No.  3 nor  No.  2. 

Mr.  Butler.  Well,  did  it  run  No.  1? 

Mr.  Hodges.  It  did  run  No  1. 

Mr.  Butler.  Eighty  horse-power  now,  and  it  took 
ninety-two  to  run  No.  1 ? 

Mr.  Hodges.  I think  we  shall  get  along  with  that.  It 
does  not  trouble  me  any.  To  answer  that  now,  it  was  an 
engine,  rated  at  eighty  horse-power,  but  doing  an  enormous 
amount  of  work,  running  that  mill,  aud  running  a little  more 
than  that  mill.  It  was  an  English  engine,  the  first  one  that 
they  had,  and  of  extraordinary  capacity.  I rest  upon  the 
testimony  of  these  men.  Nothing  has  been  introduced  to 
qualify  it,  and  it  is  not  only  unanswered  by  the  counsel,  but 
it  is  unshaken  in  any  sense  as  to  either  its  credibility  or  capa- 
bility to  pronounce  upon  that  question.  Now,  in  1844,  they 
put  their  first  engine  into  the  mill.  Down  to  that  time  the 
machinery,  fifty  to  seventy-five  horse-power  less  than  we 
have  now,  was  run  by  water.  We  have  since  added  to  the 
power  four  feet  of  head.  That  much,  then,  compensates 
the  difference  in  the  amount  of  machinery  run  at  that  time 
and  now.  We  say,  then,  that  we  are  justified  in  stating  as 
proved  that  the  mills,  as  the  water  stood  in  January,  1875, 
were  carried  by  a power  of  water  of  335  horse-power.  We 
next  say  that  that  machinery,  335  horse-power,  has  been 
run,  upon  an  average,  nine  months  in  the  year  since  1829 ; 
qualifying  the  expression  only  by  the  difference  in  the  ma- 
chinery used  at  the  different  dates.  We  have  shown  to 
you  witnesses  familiar  with  the  mill,  in  charge  of  the  whole, 
or  of  special  departments  in  it,  beginning  with  1829.  They 
all  tell  the  same  story  ; — the  difference  between  the  views 
entertained  by  the  counsel  for  the  city  and  those  that  I take, 
and  that  I supposed  were  taken  by  everybody,  concerning 
the  common  phenomena  of  memory,  is  very  great.  My  impres- 
sion has  always  been  that  it  was  the  exceptions  that  burned 
into  the  souls,  and  made  their  impression,  while  the  ordinary 
events  passed  along  unnoticed.  The  sun  rises  and  sets,  — the 
days  come  and  the  nights  come  and  memory  makes  no  mark 
and  takes  no  note  ; but  the  eclipse  that  comes  we  remember. 
The  comet  that  visits  us  we  remember.  We  do  not  remem- 
ber the  other  364  days.  We  do  remember  from  this  time 
back  to  childhood  the  days  of  the  eclipses,  and  they  seem  to 
be  more  and  more  fearful  as  we  look  back.  Now,  the  dry 
times  were  exceptions,  and  particularly  the  times  when  the 
mill  did  not  run.  And  what  have  we  got  to  say  about  the 
fifteen  years  of  the  history  of  those  mills  that  we  have  pre- 
sented to  you,  when  they  had  no  power  except  water-power 


Closing  Argument  for  Petitioners. 


321 


to  run  by?  We  have  this:  it  is  absolutely  proven,  and 
absolutely  true,  that  in  that  fourteen  or  fifteen  years, 
between  1829  and  1844,  there  are  but  two  periods  when  the 
mills  stopped  at  all,  and  these  stoppages  measured  by  two 
or  three  weeks  each ; and  then  there  was  water  enough  to 
run  mill  No.  3.  They  did  not  run  mill  No.  3,  for  it  was  a 
preparatory  mill,  and  why  pile  up  a quantity  of  prepared 
material  without  means  of  working  it  up  ? 

Now,  this  is  what  the  witnesses  say.  A fact,  perhaps, 
speaks  louder  than  all  the  voices  of  the  witnesses.  After 
the  dry  time  of  1843,  they  went  to  work  and  put  in  the  en- 
gine, — the  first  time  they  had  ever  thought  it  necessary  to 
have  any  other  power  there  than  what  was  supplied  by  the 
river. 

For  fifteen  years  the  money  of  these  people  had  been  paid 
out  to  run  those  mills.  Through  the  terrible  crisis  of  1836 
and  ’37,  those  mills  had  run,  and  run  by  water ; but  in  1844, 
after  a dry  time,  it  was  found  necessary  that  they  should 
have  another  power.  The  Cochituate  rainfall,  as  reported 
in  the  books,  does  not  extend  back  of  1852,  if  I remember 
rightly;  but  I take  what  I have  before  me  — the  Lowell 
waterfall.  In  1843  it  was  39  inches.  In  1842,  38  inches,  and 
in  1844,  35  inches.  In  1844  it  was  36  inches  at  Waltham  ; — 
a time  the  witnesses  say,  so  dry  that  they  remember  it.  Until 
then  there  had  been  no  occasion  for  an  engine,  and  down 
to  that  time  there  had  been  no  stoppage  of  the  mills,  save 
on  the  occasions  I have  mentioned.  For  that  fifteen  years 
the  machinery  demanded  about  275  horse-power.  That  is 
not  the  only  thing  we  are  to  observe.  It  was  carried  by 
three  breast-wheels,  one  for  each  mill,  a vehicle  of  power 
bearing  about  the  same  relation  to  the  turbine  wheel  that  a 
sun-dial  bears  to  a chronometer  as  a measurer  of  time  ; and 
yet  for  all  that  the  mills  ran  continuously,  and  never  stopped 
save  on  the  two  occasions  I have  mentioned. 

Mr.  Butler.  Which  do  you  think  the  most  accurate,  — 
the  sun-dial,  or  the  chronometer? 

Mr.  Hodges.  I should  stand  by  the  chronometer,  for  fine 
measure. 

Now,  passing  away  entirely  from  calculations  made,  or 
estimates  made,  through  the  medium  of  fixed  facts,  let  us 
see  what  impression  was  left  upon  the  minds  of  these  men  ; 
how  their  lives  have  received  the  impression  created  by  their 
labors  in  this  mill  ; for  the  half  dozen  men  we  have  produced 
are  men  whose  active  lives  have  been  passed  in  connection 
with  this  water-power,  guiding  it  and  receiving  aid  from  it ; 
and  what  do  they  say  ? Not,  what  does  one  of  them  say ; 
but  what  do  all  of  them  say?  Why,  from  eight  and  a half 


322 


Saxonville  Mills. 


to  nine  months  in  the  year,  all  these  mills  could  run  by 
water,  and  that  there  was  never  a time  when  No.  3 could  not 
run ; and,  as  a general  thing,  it  came  to  about  this  : all  the 
mills  were  run  by  water  about  eight  and  a half  months  in  the 
year  to  nine.  Then  No.  1 was  taken  off;  No.  2 was  taken 
off,  or  put  on,  as  the  water  permitted,  or  it  was  relieved  by 
taking  off  a little  machinery,  as  the  business  permitted,  and 
run  off  and  on  during  the  rest  of  the  year.  No.  3 could 
run  all  the  time  ; in  a portion  of  the  remainder  of  the  time 
after  the  8J-  or  9 months  No.  2 could  run ; all  could  run  for 
eight  and  a half  to  nine  months.  Now,  gentlemen,  these  are 
men  whose  business  it  was  to  know  every  day  about  that 
power.  The  weaver  felt  the  looms  in  doubtful  motion.  The 
carder  complained  if  his  cards  did  not  move  with  the  proper 
energy.  The  spinner  knew  if  his  drawing-frames  flagged. 
Every  one  of  them  intended  to  and  did  watch  and  under- 
stand how  the  water  was  imparting  vitality  to  his  machine. 
In  addition  to  that,  three  of  them  were  practically  superin- 
tendents of  the  mill,  — Carter  having  it  entirely  in  his 
charge. 

Now,  gentlemen,  I can  only  say,  that  if  a fact  can  be  estab- 
lished by  human  testimony,  it  would  be  difficult  for  me  to 
point  out  a means  of  proving  more  conclusively  than  we  have 
done  by  these  witnesses  what  that  machinery  did  under  the 
power  of  this  water  ; and,  I take  it,  what  it  has  done  it  again 
can  do,  or  could  have  done,  if  the  city  had  left  the  stream  in 
its  natural  channel.  When  we  show  what  this  water  has 
done,  acting  upon  our  machinery,  we  shall  at  the  same  time 
show  conclusively  to  your  minds,  the  power  they  have  de- 
prived us  of.  And  that  has  been  our  purpose  in  this,  per- 
haps tedious,  but  certainly  earnest,  effort  to  bring  before  you 
the  full  facts. 

But  we  are  told  that  the  coal  record  is  an  important  item  ; 
that  it  is  against  us,  and  tends  to  show  that  the  views  we 
have  presented  in  this  matter,  are  not  sound.  To  a certain 
extent  I should  agree  with  the  counsel  for  the  city,  that  the 
appearances  are,  if  unexplained,  against  our  view.  I think 
I shall  show  that  it  is  not  so  in  reality.  In  1871,  of  his  own 
motion,  the  engineer  commenced  to  keep  an  account  of  the 
days  when  the  mills  were  run  by  steam  and  water  respec- 
tively ; and  he  continued  that  account  down  to  this  time. 
Those  tables  will  be  before  you,  so  that  I need  not  detain  you 
by  reading  them.  I will  only  refer  to  them  to  say,  that  mill 
No.  1 was  run,  beginning  on  the  17th  of  June,  1871,  1 15 J- 
days  by  steam  during  that  year,  84^  days  during  the  year 
1872,  111J  in  1873,  147^  days  in  1874,  and  157  J days  in 
1875.  Mill  No.  2 was  run  91  days  in  1871,  138J  days  in 


Closing  Argument  for  Petitioners. 


323 


1872,  98J-  days  in  1873,  112J  days  in  1874,  135J  days  in 
1875.  In  this  record  for  the  year  1871  there  is  an  error  in 
the  footing  of  2J-  days  for  both  of  the  mills.  Each  of  the 
mills  was  run  2^  days  more.  It  will  be,  I think,  of  no  con- 
sequence in  the  figures  I shall  present  hereafter,  for  I 
have  cast  out  that  year  in  the  calculations  to  which  I shall  draw 
your  attention ; if  I see  clear  through,  it  will  not  be  in  any 
respect  qualified  by  that  omission.  My  calculations  employ 
both  the  record  of  steam  and  water  work,  and  the  record  of 
rainfall  for  the  four  years  ending  December  31,  1875. 

For  the  year  1871  the  rainfall  was  45.39;  for  the  year 
1873  the  rainfall  was  45.43.  The  calculations  I am  about 
to  present  to  you  assume  as  one  of  the  conditions  the 
rainfall,  and,  as  record  of  steam  and  water  for  the  year  1871 
was  kept  only  for  the  last  portion  of  the  year  after  June,  I 
have  substituted  the  rainfall  of  1873  for  that  of  1871, 
assuming  that  it  was  substantially  .the  same. 

Mr.  Builer.  If  I understand  you,  in  your  calculations 
you  take  the  whole  rainfall  for  the  year,  — not  for  the  sum- 
mer months  merely  ? 

Mr.  Hodges.  Yes,  sir,  I take  it  for  the  year.  I am  pre- 
senting these  calculations  with  the  view,  first,  of  correcting 
that  record  of  water  and  steam.  In  sheet  No.  1 [see  Ap- 
pendix "A”],  that  I present,  I have  stated  in  one  division 
precisely  what  is  stated  in  the  steam  record.  In  another,  I 
have  stated  the  days  the  mills  were  run  by  water,  which  the 
witness  referred  to,  and  which  I have  here  for  each  year. 
In  sheet  No.  2 [see  Appendix  "B”],  I have  reduced  the 
days  that  the  mills  were  run  by  steam  and  the  days  that  they 
were  run  by  water,  so  as  to  represent  the  power  in  horse- 
power. To  illustrate  what  I mean,  mill  No.  1 requires  240 
horse-power  to  run  the  machinery.  It  ran  in  that  year  so 
many  days  by  steam.  I have  multiplied  the  days  by  the 
horse-power,  and  have  said  that  makes  so  many  horse-power 
for  one  day  that  year,  or  so  many  horse-power  that  year. 
For  mill  No.  2 the  same.  I have  then  done  the  same  by 
the  water-power,  and  the  results  I have  stated  on  sfieet  No. 
2,  beginning,  however,  at  the  head  of  the  sheet,  with  show- 
ing that  both  the  mills,  running  313  days,  would  exact 
101,913  horse-power  one  day.  That  would  be  the  amount 
required  to  run  them  for  313  days.  I have  then  gone  through 
a series  of  calculations  which  show  the  results,  beginning 
with  1872,  but  subsequently  correcting  the  records,  so  that 
we  have  1871,  desiring  to  present  to  you  calculations 
embracing  those  five  years.  In  the  year  1872  I find  that 
we  used  by  water  61,000,  and  some  more,  horse-power,  and 
with  steam  we  used  32,000  and  some  hundreds,  making,  as 


324 


Saxon yille  Mills. 


represented,  only  93,000  horse-power  that  year.  In  the 
year  1873,  by  the  same  course  of  calculation,  I find  we  used 

65.000  horse-power  by  water,  and  35,000  by  steam.  In 
1874,  54,000  by  horse  and  45,000  by  steam.  In  1875, 

44.000  by  water  and  49,000  by  steam.  For  1871,  I repeat 
the  figures  of  1873,  making  65,000  by  water  and  35,000  by 
steam.  With  the  single  exception  of  supplementing  the  year 

1871,  so  as  to  make  it  a full  year,  my  figures  are  only  direct 
results  from  the  figures  presented  in  the  steam  and  water 
record.  Sheet  No.  3 [see  Appendix  "C”]  explains  the  cor- 
rections and  statements.  Item  No.  1 is  • simply  a statement 
of  the  substitution  of  the  figures  of  1873  for  those  of  1871. 
Item  No.  2 shows  matter  that  requires  more  explanation. 
It  refers  to  the  calculations  made  for  1872.  In  the  year 

1872,  it  is  in  evidence  that  the  city  took  1,676,000,000  of 
gallons  in  the  course  of  seventy-five  days.  Your  Honors  will 
observe  that  that  1,676,000,000  of  gallons  of  water  was  taken 
from  our  water-power,  and  that  we  were  obliged  to  substi- 
tute steam-power  for  it.  Therefore  it  is  fair  for  the  pur- 
poses of  the  estimate  that  I am  subsequently  to  call  your 
attention  to,  that  that  water-power,  properly  calculated, 
should  be  added  to  the  water-power  we  did  use  that  year, 
and  subtracted  from  the  steam-power  we  used.  I have 
made  that  calculation,  and  it  amounts  to  102  horse-power 
per  day  for  the  seventy-five  days,  or  7,650  horse-power  for 
one  day.  That  7,650  I have  added  to  the  water-power,  as 
entered  in  sheet  No.  2,  and  deducted  it  from  the  steam-power 
there  entered. 

In  1875  the  city  took  from  us  2,500,000,000  gallons  and 
over  in  143  days. 

Mr.  Butler.  When  was  that  put  in  evidence? 

Mr.  Hodges.  All  along,  sir. 

Mr.  Butler.  I do  not  so  understand  it. 

Mr.  Hodges.  Certainly  it  was,  and  you  yourself  spoke  of 
it  at  the  time,  and  it  was  admitted  that  the  statement  of  those 
figures  should  go  in,  and  the  very  figures  were  put  down. 
You  will  find  by  the  record  that  it  is  so.  I was  careful  to 
have  it  put  down,  and  it  appears  in  all  the  reports.  I do  not 
believe  it  is  worth  while  to  go  into  discussion  about  that. 

I have  in  precisely  the  like  manner  estimated  the  power 
that  that  2,500,000,000  gallons  would  give  us,  have  added  it 
to  the  water  record  of  1875,  and  deducted  it  from  the  steam 
record,  and  have  thus  corrected  the  record  of  the  engineer, 
so  as  to  make  it  a correct  statement  of  the  power  that  existed 
for  us  then  to  use,  having  in  view  the  calculations  which  I 
am  now  about  to  present  to  you. 


Closing  Argument  for  Petitioners. 


325 


Mr.  Butler.  But  this  water  of  1875  was  taken  out  in  the 
wet  season  — taken  in  January. 

Mr.  Hodges.  From  the  twenty-first  of  January  to  the 
eleventh  day  of  October.  Whether  that  is  in  the  wet  season 
or  not,  I will  leave  for  the  commissioners  to  judge.  It  struck 
me,  as  I heard  the  evidence,  that  a good  deal  of  it  was  in  the 
dry  season.  By  the  way,  that  will  recall  to  you  that  it  was 
put  in.  Don’t  you  remember  reading  that  paragraph  from 
the  report?  You  read  it  yourself. 

With  these  figures  and  corrections,  I have  presented  in  the 
last  paragraph  on  sheet  No.  3,  a tabulated  statement,  in  which 
the  horse-power  used  by  water  in  each  of  those  years,  1871, 
’72,  ’73,  ’74,  and  ’75,  and  the  steam  used  in  each  of  those 
years  is  entered,  and  this  is  the  aggregate  result  for  those 
five  years.  The  water-power  amounted  to  308,999  and  a 
fraction  horse-power;  the  steam-power,  to  178,052  and  a 
fraction;  the  whole  amounts  to  487,067  horse-power,  used 
by  those  mills  in  five  years,  from  1871  to  1875. 

Now,  gentlemen,  turning  to  the  fiftieth  page  of  the  city  water 
report  of  1876,  it  will  be  observed  that  the  rainfall,  as  shown 
by  the  gauge  at  Lake  Cochituate,  for  the  five  years  beginning 
in  1871  and  ending  in  1875,  was  only  44.14  inches;  begin- 
ning in  1866  and  ending  in  1871,  the  five  years  immediately 
preceding,  the  rain-gauge  at  Lake  Cochituate  shows  57.77 
inches.  Now,  I am  not  so  uncharitable  as  to  believe,  that 
because  in  the  spring  of  1871  the  newspapers  and  the  officials 
began  to  agitate  taking  the  water  of  Sudbury  river,  there 
was  any  tampering  with  the  rain-gauge.  It  is  not  that.  It 
is  not  a variable  temper  on  the  part  of  the  officials,  but  it  is 
the  variable  character  of  the  subject  we  are  dealing  with  that 
produces  a difference  of  thirteen  inches  in  the  same  rain-gauge, 
in  two  different  semi-decades.  In  the  five  years  beginning  in 
1861  and  ending  in  1865,  five  years  previous  to  the  one  when 
that  water  and  steam  record  was  kept,  the  rain-gauge  shows 
51.49.  In  the  five  years  still  previous,  the  third  semi-decade 
previous  to  this  steam  and  water  record,  beginning  in  1856 
and  ending  in  1860,  the  rain-gauge  shows  51  inches. 

Now,  gentlemen,  if  there  is  any  value  whatever  to  the  City 
of  Boston  in  the  production  of  that  table  showing  the  record 
of  steam  and  water  in  our  mills,  for  the  period  of  five  years, 
then  we  are  entitled  that  the  comparison  shall  be  made  with 
previous  periods  of  five  years,  that  we  may  see  whether  those 
five  years  are  a fair  average  of  the  years  that  have  preceded. 
We  shall  not  be  tied  to  those  five  years,  any  more  than  the 
city  shall  be  tied  to  the  five  years  next  preceding,  when  the 
rainfall  was  57  J inches.  We  ask  you  to  look  over  such  a 
period  as  that,  from  your  learning  and  experience  you  shall 


326 


Saxonville  Mills. 


be  satisfied  you  are  examining  what  is  a fair  representation 
of  the  rainfall  for  all  time,  as  that  rainfall  is  the  exponent 
of  the  power  you  are  to  judge  of. 

I have,  therefore,  gentlemen,  in  view  of  this,  made  on  the 
fourth  sheet  [see  Appendix  " D ” ] a comparison  of  the 
power  that  our  mill  would  have  used  in  the  five  years  ending 
in  1875,  by  water  and  steam  respectively,  if  in  those  years 
the  rainfall  had  been  an  average  of  the  twenty  years.  Be- 
ginning in  1856  and  ending  in  1875,  the  average  rainfall  of 
the  twenty  years  is  50.19  inches.  But,  first,  I have  made  a 
comparison  of  what  would  have  been  the  power  we  used,  by 
steam  and  water  respectively,  if  the  rainfall  for  the  last  five 
years  had  been  like  the  rainfall  in  the  semi-decade,  from 
1856  to  1864,  and  after  with  each  semi-decade  to  1870.  Not 
to  weary  you  with  details,  but  simply  to  make  myself  under- 
stood, I will  say,  that  I have  drawn  the  comparison  in  this 
wise:  as  44.14  inches,  the  rainfall  in  the  last  semi-decade, 
is  to  308,999,  the  whole  water-power  used  in  that  semi- 
decade, so  is  51  inches,  the  rainfall  in  the  semi-decade 
ending  in  1860,  to  357,000  and  some  fraction  horse-power. 
So  that  we  should  have  used,  in  the  last  semi-decade,  357,000 
horse-power  by  water,  instead  of  308,000,  and  130,000  by 
steam.  In  the  next,  when  the  rainfall  was  51.49  inches,  or, 
as  I have  measured  it,  51J,  we  should,  by  the  same  formula, 
have  used  360,000  horse-power  by  water,  instead  of  308,000, 
as  shown  in  the  record.  In  the  five  years  from  1866  to  1870, 
when  the  rainfall  was  57.77,  by  the  same  mode  of  calcula- 
tion, we  should  have  used  403,937  by  water,  in  the  place  of 
308,000.  Taking  the  whole  of  these  together,  and  summing 
up  the  amount  of  horse-power  used  by  water  and  by  steam 
for  the  twenty  years,  as  I have  calculated  it,  and  taking 
always  the  days  of  the  last  five  years,  when  we  had  the 
record  to  go  by,  as  the  basis  of  calculation,  I find  that  in  the 
whole  twenty  years,  if  we  had  used  power  relatively  to  the 
rainfall,  as  we  have  used  it  in  the  years  1871  to  1875,  our 
record  would  read,  by  water,  1,430,482  horse-power;  by 
Steam,  518,771 ; or,  if  the  average  rainfall  for  twenty  years 
is  taken  as  the  basis  of  calculation,  on  the  one  hand,  and 
the  record  of  steam  and  water,  as  kept  and  introduced  here 
for  five  years,  is  taken  on  the  other,  we  should  have  run  our 
mills  of  the  time  by  water,  and  ^ of  the  time  by 
steam. 

Now,  it  is  a curious  coincidence,  that  carrying  through  a 
series  of,  to  me,  somewhat  complicated  calculations,  we  bring 
the  figures  to  meet  the  evidence  of  these  witnesses,  who 
know  more  about  this  than  all  the  rest  of  the  world  put 
together.  There  is  no  gainsaying  the  force  of  such  coincidence. 


Closing  Argument  for  Petitioners. 


327 


It  is  not  a matter  that  can  be  in  any  respect  disputed  or  put 
out  of  sight.  However  large  the  result  may  be,  and  how- 
ever exalted  the  persons  may  be  who  represent  the  city  in 
the  Council  room  below,  the  facts  are  established,  and  no 
position  and  no  results  can  displace  them. 

There  is  one  piece  of  evidence  before  us  in  this  case  which 
seems  to  me  to  furnish  some  important  information  of  the 
views  we  have  expressed.  It  is  a law  in  the  courts,  it  is  a 
law  in  the  schools  of  logic,  and  it  is  a law  in  the  commonest 
transactions  of  life,  that  the  best  evidence  in  the  hands  of  a 
party  should  be  produced;  that  the  best  evidence  in  the 
hands  of  a party  not  produced  leaves  to  the  opposition  the 
right  to  say  that  the  withholding  of  that  best  evidence, 
gathered  during  a series  of  years,  under  the  stimulus  of  an 
excited  controversy,  and  by  the  expenditure  of  unlimited 
means,  would  condemn  the  party  thus  withholding  it.  The 
City  of  Boston  has  been  taking  scientific  observations  of  this 
water-shed  and  of  the  water  of  this  immediate  district.  The 
public  prints,  the  public  voice,  in  every  form,  the  written 
records  of  the  city,  all  attest  the  extent  and  the  depth  with 
which  this  interest  has  seized  upon  the  public  mind.  The 
archives  of  the  city  contain  the  results  of  those  examinations. 
The  leading  mind  that  has  controlled  and  managed  those 
things  from  January  to  December,  for  live  years,  has  been 
in  our  presence.  If  the  testimony  of  our  witnesses  has  had 
a tendency  to  create  a false  impression  as  to  the  amount  and 
value  of  this  property,  why  is  not  that  testimony  corrected 
by  this  higher  authority  ? If  the  valuation  we  set  upon  this 
property  is  exaggerated,  if  the  views  we  take  of  it  are  prop- 
erly subject  to  sneers  or  ridicule,  what  means  the  silence  of 
this  witness, — of  all  these  witnesses  ? Where  are  the  records 
of  the  city?  Where  are  the  men  who  can  tell  a better  tale 
for  the  city  ? They  do  not  appear.  We  have  seen  nothing 
of  them  on  the  witness-stand.  We  should  have  been  glad 
to  have  seen  them.  We  should  have  been  delighted  to  ask 
of  the  city  authorities  what  their  figures  would  show  to  be 
the  value  of  the  property  they  had  taken  from  us.  That  is 
in  their  hands.  It  is  not  produced  to  you,  and  I leave  you, 
gentlemen,  to  say  why. 

Mr.  Butler.  Everything  we  have  got  is  in  these  reports. 

Mr.  Hodges.  That  we  know  nothing  about.  We  have 
had  no  testimony  to  that  effect  here.  The  man  who  knows 
it  all  has  been  giving  aid  to  the  city  counsel  all  through  the 
hearing,  before  us  all  the  time,  and  not  a word  said  by  him 
in  the  capacity  of  a witness,  under  the  sanction  of  an  oath. 

Again,  gentlemen,  I feel  bound  to  apologize  for  the  time 
I am  taking,  but  it  is  of  consequence,  and  I must  ask  you  to 


328 


Saxonville  Mills. 


indulge  me  a little  longer.  Thus  far,  I have  done  nothing 
more  than  allude  to  the  question  of  the  use  of  this  power  by 
night.  I wish  you  briefly  to  consider  that  subject.  The 
witnesses  say  this  power  can  be  used  by  night  and  day  about 
two-thirds  of  the  year ; that  it  can  be  used  as  well  by  night 
as  by  day ; and  the  reason  for  it  is,  that  the  pondage 
is  so  small  above  the  dam,  that  when  it  can  run  by  day,  it  can 
also,  generally,  run  by  night.  We  can  keep  the  water  back 
for  a few  hours,  or  even  for  a day,  with  the  two  ponds 
at  the  grist-mill  and  the  factory.  They  not  only  have  stated 
this  as  a theory,  but  have  seen  it  in  practice.  All  agree 
that  during  the  war  the  mills  ran  most  of  the  time,  day  and 
night.  Mr.  Watson,  the  oldest  superintendent  that  we  could 
produce,  says  that  it  was  often  during  his  time,  between 
1842  and  1860,  worked  nights;  and  always  worked  nights 
when  the  contracts  required  it.  Now,  we  say  that  the  testi- 
mony will  justify  us  in  claiming  that  the  mills  will  run  about 
two-thirds  of  the  year  ; they  will  run  eight  and  a half  months 
by  day,  and  about  seven  months  by  night ; and  that  the  night 
power  is  just  as  good  as  the  day  power.  It  has  been  used. 
It  can  be  used.  The  right  to  use  it  at  night  is  as  valuable 
as  that  to  use  it  by  day,  excepting  always  the  difference  in 
the  expense.  We  could  use  it  for  paper-mills  by  night,  or 
use  it  to  compress  air,  for  use  in  the  day  time,  as  was  happily 
suggested  by  the  counsel  for  the  city.  All  these  consider- 
ations fix  a value  upon  the  use  of  the  power  by  night,  and 
whatever  it  is,  we  own.  Whatever  it  is,  the  city  has  taken 
away.  We,  the  absolute  owners,  and  in  full  possession  of  a 
power  so  controllable,  and  so  by  the  expenditure  of  vast  sums 
of  money  controlled,  that  one  corporation  grasps  the  river 
in  its  hands,  and  commands  every  particle  of  its  energies 
from  January  to  December,  have  been  deprived  of  its  power, 
and  every  farthing  that  that  is  worth,  for  use  or  for  sale 
(whether  used  or  not,  or  whether  sold  or  not),  we  are 
entitled  to  receive  at  your  hands. 

We  are  told,  in  this  connection,  that  "water  is  no  better 
than  steam ; just  as  well  use  steam  as  use  water.”  With 
water  there  to  use,  we  can  introduce  a much  larger  amount, 
and  a much  different  order,  of  work.  At  all  events,  we 
have  the  water,  and  it  is  not  for  me  to  tell  you,  gentlemen  of 
experience,  that  a water-power  is  much  better  than  a steam- 
power,  when  it  is  under  control,  as  it  is  here.  If  not,  if  this 
is  really  a power  that  it  is  just  as  well  to  give  up  and  employ 
steam,  where  is  the  common-sense  of  the  corporation  that 
preceded  us,  and  the  present  corporation,  who,  having  steam- 
engines  sufficient  to  carry  their  machinery,  have  put  in  four 
turbine  wheels,  at  very  great  expense?  Now,  gentlemen, 


Closing  Argument  for  Petitioners. 


329 


we  have  given  evidence  of  the  faith  that  is  in  us.  We  took 
away  the  breast-wheels,  and  put  in  the  turbine-wheels,  after 
we  had  the  engine. 

Now,  gentlemen,  I have  stated  a formula  in  respect  to  the 
use  of  this  water  by  night.  I made  the  formula  before  I had 
heard  the  testimony ; for  I have  had  no  time  since  to  make 
any,  and  it  is  probably  open  to  some  objection ; but  the 
principle  upon  which  it  is  based  is,  I believe,  sound.  If  mill 
No.  1,  demanding  240  horse-power,  ran  nine  months  in  the 
daytime  and  eight  months  at  night,  the  result  would  be  517 
days  of  running  that  mill  every  year,  which  would  demand 
124,080  horse-power  for  the  whole  year.  Mill  No.  2,  run- 
ning twelve  months  in  the  daytime  and  seven  months  in  the 
night,  would  demand  48,065  horse-power  per  year.  The 
two  together  would  demand  172,145  horse-power  a year, 
which,  divided  by  313  working  days,  makes  550  horse- 
power required  by  our  mill  running  day  and  night,  as  the 
water  would  run  it.  That,  if  I have  stated  it  right,  reduced 
to  313  days  as  above,  would  be  equal  to  550  horse-power  for 
each  day.  Now  these  calculations  I have  made,  and  submit 
them  to  you  for  your  aid.  I believe  they  are  correct ; and 
when  I opened  the  argument  of  this  case  by  saying  that  we 
claim  from  450  to  520  horse-power  per  day,  I intended,  as  I 
then  stated,  to  signify  to  you  that  our  claim  was  thus  quali- 
fied by  the  introduction  of  the  power  that  could  be  used  at 
night,  and  that  it  made  a condition  in  our  calculations  of 
damages. 

I have  thus,  gentlemen,  in  a wearisome  manner,  stated  to 
you  the  views  we  take  of  the  amount  of  power  the  city  has 
taken  away  from  the  petitioner ; the  next  and  only  remain- 
ing question  for  us  to  consider  is,  How  shall  the  city  com- 
pensate us  for  the  damage  thus  done  ? 

Certain  aspects  in  which  the  question  of  damages  may  be 
considered  do  not  admit  of  compensation  by  supplying  power. 
We  cannot  have  power  supplied  to  us  to  compensate  us  for 
the  evil  done  by  leaving  bare  our  flats.  We  can  have  power 
supplied  to  us  for  the  deprivation  of  our  flowage,  because 
that  is  involved  in  the  calculations  concerning  our  power  and 
its  value,  and  so  far  as  involved  it  of  course  should  not  be 
considered  independently  of  the  valuation  of  the  power. 
But  the  right  to  use  the  dam  at  the  grist-mill  for  mechanical 
power  has  not  in  any  degree  been  considered  in  the  calcula- 
tions we  have  made.  The  right  to  use  the  dam  at  the  grist- 
mill, where  there  remains  one  and  a half  to  two  feet  of  fall 
for  mechanical  purposes,  is  not  embraced  in  the  other  calcu- 
lations ; and  whatever  the  value  of  a fall  of  a foot  and  a 
half,  carrying  325  horse-power,  for  nine  months  in  the  year, 


330 


Saxonville  Mills. 


by  day,  and  a corresponding  portion  by  night, — whatever 
that  is  worth  should  be  carefully  estimated  in  the  calcula- 
tions, and  allowed  us  as  damages.  And  whatever  the  right 
of  the  riparian  proprietor  to  raise  Farm  pond,  and  reinforce 
the  flow  of  water,  and  thus  augment  the  available  power 
below,  that  likewise  is  not  involved  in  the  calculations  of 
damages  for  the  deprivation  of  our  power.  The  mischief 
done  by  laying  bare  the  hitherto  covered  portions  of  the 
large  pond  is  not  involved  in  the  calculations  of  power. 
Those  stand  separately,  and  will  be  estimated  separately, 
and  form  distinct  items  in  the  aggregate  damages.  I shall 
not  weary  you  with  further  views  on  these  branches  of  the 
subject. 

Judge  Story,  in  the  case  of  Rogers  vs.  the  Mechanics’ 
Insurance  Company,  1 Story’s  Reports,  303,  remarks  upon 
the  subject  of  damages,  which  are  in  themselves  incapable  of 
absolute  ascertainment,  in  these  words  : — 

"It  is  said  that  it  is  difficult  and  indeed  impracticable  to 
ascertain  the  true  and  exact  value  of  the  property  in  this 
case.  There  may  be  difficulty,  and  perhaps  an  impossibility, 
to  ascertain  its  exact  and  minute  value,  for  we  have  no  means 
of  weighing  it  in  scales,  or  fixing  its  positive  price.  But 
the  same  difficulty  occurs  in  many  other  cases  of  insurance ; 
as  in  cases  of  injuries  to  sails,  or  rigging,  or  spars,  by  tem- 
pest, or  by  cutting  them  away,  in  cases  of  jettison  ; and  yet 
no  one  doubts  that  they  must  be  contributed  for  according 
to  their  value,  ascertained  by  a jury,  in  the  exercise  of  a 
sound  discretion,  upon  proper  evidence.  Suppose  that  fruit 
is  insured,  and  the  vessel  has  a long  passage,  in  which,  by 
ordinary  waste  and  decay,  it  must  suffer  some  deterioration, 
and  then  a storm  occurs,  in  which  it  suffers  other  positive 
damage  and  injury,  or  there  is  a jettison  thereof ; how  are 
we  to  ascertain  what  diminution  is  to  be  attributed  to  natu- 
ral waste  and  decay,  and  what  to  the  perils  of  the  seas?  or 
what  was  its  true  value  at  the  time  of  the  jettison  ? There 
can  be  no  positive  and  absolute  certainty.  The  most  that 
can  be  done  is  to  ascertain,  by  the  exercise  of  a sound  judg- 
ment, what,  under  all  the  circumstances,  may  be  reasonably 
attributed  to  one  cause,  and  what  to  the  other.  Absolute 
certainty,  in  cases  of  this  sort,  is  unattainable.  All  that  we 
can  arrive  at  is  by  an  approximation  thereto ; and  yet  no 
man  ever  doubted  that  such  a loss  must  be  paid  for,  if  it  is 
covered  by  the  policy.” 

The  same  rule  obtains  in  all  these  cases.  It  is  not  that  it 
is  difficult,  it  is  not  that  it  is  impossible,  to  ascertain  with 
exactitude  what  has  been  the  suffering.  The  suffering  must 
be  submitted  to  the  best  judgment  of  capable  men,  and  their 


Closing  Argument  for  Petitioners. 


331 


judgment  must  be  accepted  as  substantially  correct,  in  those 
cases  cited  by  Judge  Story,  as  in  the  case  we  have  before  us. 

These  matters  which  we  have  submitted  to  you  are  evi- 
dently and  eminently  of  uncertain  ascertainment ; but  the 
main  subject  of  complaint,  the  deprivation  of  power,  can  be 
with  much  more  satisfaction  arrived  at.  If  we  have,  by  the 
figures  we  have  presented,  pointed  out  the  power  we  have 
been  deprived  of,  or  if  we  have  pointed  out  a mode  of  ascer- 
taining that  power,  correcting  our  figures  by  the  judgment 
you  shall  form  of  the  testimony,  or,  if  there  is  in  your  minds 
one,  or  another,  or  another  mode  by  which  that  power  can  be 
measured,  then  through  some  one,  or  more  of  these  means  it 
can  be  arrived  at  with  sufficient  accuracy ; and  when  the 
power  has  been  ascertained,  it  can  be  compensated  for  in  a 
measure  by  substituting  other  power,  and  paying  other 
damages. 

Now,  Mr.  Bacon  has  placed  before  you  his  views  of  the 
cost  of  the  engine  and  appliances,  by  which  a like  power  with 
that  taken  from  the  petitioner  may  be  put  upon  its  shafts. 
We  have  had  before  us,  in  the  Essex  Co.  case,  an  estimate 
of  the  cost  per  horse-power.  On  the  seventy-fourth  and 
seventy-fifth  pages  of  the  report,  Mr.  Mills  makes  his  state- 
ment upon  that  subject,  and  concludes  that  it  would  not  cost 
far  from  sixty  dollars  per  annum,  per  hor§e-power.  That  is 
where  the  engine  is  prepared,  a portion  of  the  boilers  heated, 
and  an  engineer  and  fireman  furnished  to  attend  to  a portion 
of  the  work.  Where  all  these  are  prepared,  it  will  cost  about 
sixty  dollars,  and  he  bases  that  upon  coal  at  seven  dollars  a 
ton,  the  consumption  at  three  pounds  per  hour,  per  horse- 
power. 

Mr.  Child.  This  sixty  dollars  includes  the  pay  of  the 
engineer,  etc. 

Mr.  Hodges.  Upon  his  statement,  possibly  it  does,  but 
he  does  not  say  so  in  the  opening ; he  says  to  the  contrary. 
But  I am  not  strenuous  about  that,  because  I think  his  calcu- 
lation goes  entirely  aside  from  that. 

Now,  I wish  to  criticise  Mr.  Mill’s  statement  a little.  He 
estimates,  firstly,  thirty  pounds  a day,  three  hundred  days  in 
the  year,  where  there  are  three  hundred  and  thirteen.  He 
estimates  coal  at  seven  dollars  a ton.  The  last  fifteen  years 
will  show  a very  different  price  of  coal.  Coal  at  Saxonville 
is  over  a dollar  a ton  more  than  it  is  in  Boston,  by  reason  of 
freight.  Possibly  I am  wrong  in  saying  three  hundred  and 
thirteen  days.  There  are  three  hundred  and  thirteen  working 
days  in  the  year,  but  practically  all  may  not  be  used.  If 
you  qualify  his  statement  by  varying  the  price  of  the  coal,  or 


332 


Saxonville  Mills. 


by  varying  the  number  of  days,  the  qualification  must  be 
received,  and  have  its  weight. 

But  there  is  a more  important  qualification  than  these,  far 
away.  Mr.  Bacon  says  that  he  considers  the  average  con- 
sumption of  coal  in  the  manufacturing  establishments  of 
Massachusetts  to  be  fully  four  pounds  per  horse-power  for 
each  hour.  I should  venture  to  say,  if  you  take  the  engines 
in  the  manufacturing  establishments  in  Massachusetts,  from 
one  end  to  the  other,  you  will  find  that  there  are  more 
engines  that  cost  five  pounds  and  a half  of  coal  per  horse- 
power, than  there  are  that  run  with  three  pounds ; and  good 
engines,  too.  Dr.  Hayes,  in  his  laboratory,  can  undoubtedly 
produce  his  horse-power  with  less  than  three  pounds ; but  it 
is  not  Dr.  Hayes  that  runs  the  engines,  and  it  is  not  Dr. 
Hayes  who  sees  that  the  engines  are  always  in  the  absolutely 
fine  condition  for  running,  nor  does  he  select  the  coal ; and 
we  are  to  calculate  this  work  as  it  is  ordinarily  done,  by 
ordinary  agents,  and  with  ordinary  tools  and  materials.  My 
impression  is,  that  we  should  any  of  us  be  very  glad  to  con- 
tract that  our  engines  should  produce  a horse-power  with  four 
pounds  of  coal  per  hour. 

Estimated  in  that  way,  the  result  is  very  different.  If  I 
am  right  in  supposing  that  we  should  cast  this  at  313  days, 
and  should  estimate  it  at  four  pounds  of  coal  per  horse- 
power per  hour,  and  should  call  the  coal  worth  $8.00  a ton, 
we  should  then  find  that  the  cost  of  running  an  engine  of 
325  horse-power  would  be  very  different  from  the  cost  stated 
by  Mr.  Mills.  As  I have  made  it,  the  coal,  at  2,000  pounds 
to  the  ton,  would  equal  6.26  tons  a horse-power,  instead  of 
9,000  pounds.  Instead  of  four  tons  and  a half,  it  would 
equal  six  tons  and  a quarter.  And  that,  at  $8.00  a ton,  is 
equal  to  fifty  dollars  per  annum  per  horse-power  for  coal 
alone ; which  would  make  the  running  of  an  engine  of  325 
horse-power  cost  $16,250,  instead  of  the  sum  stated  by  Mr. 
Bacon. 

Now,  it  is  not  for  me  to  cavil  over  one  sum  or  another  be- 
fore you.  We  ask  you  to  put  upon  the  shaft  we  have  the 
power  the  city  has  taken  away  from  us,  or  to  give  us  the 
means  of  putting  it  on.  We  ask  you  to  apply  to  it  simply 
and  exactly  the  considerations  that  you  would  apply  to  any 
other  question ; the  rules  of  right,  and  the  rules  of  calcula- 
tion, that  would  be  applied  in  any  other  case.  We  believe 
that  $25,000  a year  would  not  supply  us  with  the  power  the 
city  has  taken  away  from  us.  It  may  be  less.  Whatever 
it  is,  give  it  to  us.  Give  it  to  us  in  the  form  of  capital,  as  it 
must  be.  I may  here  say  what  is  known  to  you  already, 
but  I would  make  sure  that  it  enters  into  your  calculation ; 


Closing  Argument  for  Petitioners.  333 

we  are  running  all  the  risk  of  the  continuance  of  the  price 
you  fix  for  coal.  You  fix  one  or  another  or  another  price, 
and  we  take  all  the  risk  of  it.  Look  back  ten  years  and  ob- 
serve the  change  that  has  come  upon  the  price  of  coal  in 
England,  where  the  exigencies  of  war  had  not  arisen  to 
disturb  the  common  course  of  events,  but  where  the  nation 
woke  up  to  discover  that  the  coal-beds  were  being  fast  ex- 
hausted. Now,  gentlemen,  there  are  in  this  country  only 
four  hundred  square  miles  of  anthracite  coal,  leaving  out  the 
little  thread  in  Rhode  Island.  Against  that  you  may  put  an 
innumerable  number  of  miles  of  bituminous  coal ; but  an- 
thracite coal  is  the  coal  we  are  dealing  with.  It  lies  in  the 
little  basin  of  the  seventeen  townships  in  Pennsylvania.  It 
is  every  year  being  exhausted  in  geometrical  proportion. 
Think  of  it ! we  have  been  using  it  only  about  forty  years  ; 
for  common  purposes,  not  thirty  ; and,  already,  the  first  and 
second  veins  are  exhausted.  Now,  gentlemen,  we  are 
forced  to  take  this  risk  by  the  act  of  the  City  of  Boston. 
Will  you  see  to  it  that  our  rights  are  not  infringed  in  view  of 
that?  Shall  we  be  compelled  to  look  into  the  future,  and 
foresee  and  brave  all  the  consequences  of  those  changes  that 
come  upon  this  as  upon  every  other  condition  of  human  busi- 
ness, and  the  city,  the  spoiler,  take  no  risk  and  pay  no  corre- 
sponding compensation?  We  ask  you,  gentlemen,  to  deal 
with  these  matters  agreeably  to  their  magnitude,  remember- 
ing that  all  the  light  in  our  power  is  now  thrown  upon  the 
subject,  all  the  aid  in  our  hands  we  have  given  you,  — and 
whatever  light  or  information  the  city  holds  in  its  hands  that 
could  illustrate  and  explain  this  matter  has  by  those  hands 
been  put  under  a bushel,  — and  give  just  what  you  consider 
this  power  to  be  fairly  worth  to  us. 

One  other  thing,  and  I am  done.  We  have  our  engine, 
boiler,  etc.,  worth  about  what  Mr.  Bacon  says  they  are. 
We  understand,  from  the  course  of  argument  on  the  part  of 
the  city,  that  we  are  not  to  have  any  compensation  for  an 
engine.  We  have  got  one.  The  city  takes  away  our  water, 
renders  useless  the  dam,  the  wheels,  and  all  the  appliances 
for  using  the  water,  and  then  says  to  us,  " You  have  got  an 
engine  ; you  may  use  that ; we  are  perfectly  contented  you 
should  use  that,  and  we  will  pay  you  for  the  power.  No, 
gentlemen,  no.  The  man  who  takes  my  horse  cannot  say 
to  me,  "You  have  got  another  that  is  just  as  good  ; you  can 
use  that ; I am  not  going  to  pay  for  the  one  I have  taken.” 

We  are  entitled  that  the  city  should,  from  foundation-stone 
to  turret,  give  to  us  the  means  of  producing  the  power  that 
she  has  taken  away  from  us.  That,  and  that  alone,  will  sat- 
isfy us.  And  it  is  not  right  for  the  city  to  insist,  because 


334 


Saxon yille  Mills. 


we  have  an  engine,  with  its  appliances  for  use  in  our  mill, 
that  it  shall  not  supply  us  with  another,  or  its  cost.  Why 
should  we  wear  out  our  engine  in  producing  the  very  thing 
she  has  taken  away  from  us,  — power,  without  compensa- 
tion? We  claim  that  we  should  receive  at  your  hands  the 
full  value  of  all  the  steam,  machinery,  and  appliances  neces- 
sary to  create  the  power  that  they  have  taken  away. 

With  these  elements  in  your  hands,  we  shall  leave  it  to  you 
to  prove  the  estimate  of  what  is  right  and  fair  for  us  to  re- 
ceive. And  with  very  sincere  thanks,  gentlemen,  for  your 
kindness  in  listening  so  patiently  to  an  uninteresting  exposi- 
tion of  my  clients’  claims,  and  the  proofs  and  arguments  in 
their  support,  I leave  in  your  hands  our  cause  and  aw7ait 
your  judgment. 

Mr.  Butler.  I want  to  put  in  two  matters.  I want  to 
put  in  the  rainfall  of  Lake  Cochituate  by  months,  during  the 
years  1872,  ’3,  ’4,  and  ’5.  We  could  carry  it  back  to  1852, 
but  it  is  only  for  the  purpose  of  comparison  with  my  friend’s 
table.  I also  put  in  the  58th  page  of  City  Document  No. 
78.  [See  Appendix,  " E ” and  " F.”  ] 

Mr.  Hodges.  Put  them  in.  I only  say  that  there  is,  in 
one  or  two  of  those  tables,  a very  extraordinary  error.  Had 
you  put  the  witness  upon  the  stand,  I should  have  called  his 
attention  to  it ; but  for  the  purposes  for  which  these  are 
put  in  I will  not  make  any  objection. 

Mr.  Butler.  I desire  to  call  your  attention  to  two  mat- 
ters. You  will  find  by  the  City  Document  from  which  my 
brother  read,  that  the  wTater  was  taken  away  from  Farm 
pond  in  1875,  from  the  1st  of  January  to  the  18th  of  March, 

— that  makes  54  days;  and  then  from  March  26  to  April  4, 

— 9 days  ; April  6 to  14,  — 8 days  ; May  3 to  10,  — 7 days  ; 
June  3 to  10,  — 7 days.  That  I call  the  wTet  season.  Then 
from  October  2 to  11,  — 9 days.  That  makes  94  days 
during  the  wet  season.  The  total  number  of  days  was  143, 
leaving  49  days  of  the  dry  season.  So  that  they  could  only 
have  been  deprived  of  water  in  the  dry  season ; and  that 
renders  those  tables,  in  my  judgment,  wholly  innocuous. 

There  is  another  element  omitted  in  that  calculation,  and 
that  is,  he  has  left  out  the  fact  that  there  was  so  much  power 
that  had  to  be  used  in  turning  the  fly-wheel  and  connections, 
before  it  became  available  for  the  machinery.  But,  no  mat- 
ter. It  is  of  no  consequence. 

Mr.  Hodges.  It  is  of  consequence.  I thank  the  gentle- 
man for  teaching  me  that  word.  The  witness  says  that  his 
experience  teaches  him,  — and  it  is  his  business  to  know  such 
matters,  — that  there  is  always  ill  every  mill  of  a mixed 
character,  stoppages  enough  of  this  loom,  that  spinner,  and 


Closing  Argument  for  Petitioners. 


335 


that  picker,  to  equal  the  amount  that  it  requires  to  pass  the 
power  from  the  engine  to  the  operating  machines. 

A comparison  of  the  monthly  fall  of  water  introduced,  I 
believe,  by  the  gentleman  now,  will  justify  to  a dot  the 
figures  I have  presented  to  you  in  the  calculations  I have 
made  concerning  the  result  from  1871  to  1875. 

[. Adjourned  to  Monday , October  2,  at  11 J-  o' clock. 


336 


Saxon  yille  Mills 


Sheet  1. 


[A.] 

Record  of  Power  Used  at  Saxonville  Mills,  1871  to  1875. 


MILLS 

RUN  BY 

STEAM. 

"WATER  BEGINNING 

JUNE  17,  1871. 

Months. 

1871. 

1872. 

1873. 

1874. 

1875. 

MILLS. 

1871. 

Jan 

4 

! 

22 

No.  1.. 

40! 

Feb. . . . 

9*2 

. . 

20! 

No.  2.. 

78! 

March. . 

8 

. . 

8! 

O 

fc 

Both. . . 

26 

April. . . 

. . 

. . 

. . 

. . 

0 

• p, 

May. . . . 

1 ! 

5 ! 

. . 

. . 

. 0 

1872. 

June. . . 

10! 

21 

4 

10 

O CO 

MILLS. 

July  . . . 

19 

26 

26 

25 

26 

O 

Aug 

22 

16! 

17! 

17 

26 

5 b- 

No.  1.. 

192 

Sept 

Oct 

Nov. . . . 
Dec 

27 

10  h 

3 

n 

7 

3 

25 

12 

3 

ia 

14 

24 

27 

24 

26 

26 

11 

3! 

4 

2 

CO 

CM 

No.  2. . 
Both. . . 

175! 

125 

— 

— 

— 

, 

— 

MILLS. 

1873. 

Total... 

115! 

84| 

nil 

147! 

157! 

No.  1 . . 

196 

No.  2.. 

210 

Both. . . 

164 

Jan 

8* 

! 

22 

2 

Feb.... 

io| 

5! 

! 

17 

&* 

MILLS. 

1874. 

March. . 

16 

i! 

*3! 

15! 

22 

3! 

3 

10 

18 

<U 

April. . . 
May. . . . 
June. . . 
July.... 

19 

m 

5! 
7 ! 
26 

4 

16! 

.1 
CM  pJ 

d ® 

SJI 

No.  1 . . 
No.  2.. 
Both. . . 

159! 

184 

154 

Aug 

22 

20 

15 

15 

17 

Sept 

27 

6! 

16 

21! 

13! 

10 

MILLS. 

1875. 

Oct  .... 

10!  . 

2h 

11 

27 

10 

CO 

Nov. . • • 

3 

1 

4 

14 

4 

OO 

Dec.. . • 

9! 

14! 

2! 

13! 

17! 

No.  1 . . 

132 

— 

— 

— 

— 

— 

No.  2.. 

152! 

Total.. 

91 

138| 

98! 

112! 

135! 

Both. . . 

89 

Appendix 


337 


Sheet  2. 

[B.] 

Aggregate  of  Power  Used  at  Saxonville  Mills,  1870 to  1875. 

No.  1. 

It  requires  325.6  horse-power  to  carry  the  machinery,  viz. : 239.5  for  Mill  No.  1 and  86.1  for 
Mill  No.  2 X 313,  the  working  days  of  the  year  = 101,913  horse-power  used  in  the  year. 


No.  2.— 1872. 

Water. — Both  mills  run  125  days  X 325.6  = horse-power  for  one  day  40,700 


Mill  No.  1 
Mill  No.  2 
Steam.  — Mill  No.  1 
Mill  No.  2 


67 

50* 

84| 

1381 


X 239.5  = 
X 86.1  = 
X 239.5  = 
X 86  = 


16.046.5 
4,343 

20.297.5 

11.932.5 


Refer  to  No.  2,  Sheet  3,  for  correction. 


Water. 

= 61,089.5 
Steam. 

= 32,230 

93,319.5 


No.  3.— 1873. 


Water. — Both  mills  run  164  days  X 325.6  = horse-power  for  one  day  53,398.4 


Mill  No.  1 
Mill  No.  2 
Steam.  — Mill  No.  1 
MiH  No.  2 


32 

46 

1111 

983 


X 239.5 : 

X 86.1  = 
X 239.5  = 
X 86.1  = 


7,654 

3,960 

2,6764 

8,500 


Water. 

= 65,012.4 
Steam. 

= 35,264 


100,276.4 


NO.  4.— 1874. 


Water.— Both  mills  run  154  days  X 325.6  = horse-power  for  one  day  50,132.4 


Mill  No.  1 
Mill  No.  2 
Steam.  — Mill  No.  1 
Mill  No.  2 


30 


X 239.5  = 
X 86.1  = 
X 239.5  = 
X 86.1  = 


1,317 
" 2,583 
“ 35,326 
“ 9,686 


Water. 

= 54,032.4 
Steam. 

= 45,012 


99,044.4 


No.  5.— 1875. 

Water. — Both  mills  run  89  days  X 325.6  = horse-power  for  one  day  28,969.5  ) 

Mill  No.  1 “ 43  “ X 239.5  = « “ “ “ 10,298.5  [ Water. 

Mill  No.  2 “ 63|“  X 86.1=  “ “ « “ 5,488.8)  =44,756.8 

Steam.  — Mill  No.  1 « 157*“  X 239.5=  “ 37,721  Steam. 

Mill  No.  2 “ 135|  “ X 86.1  = “ “ “ “ 11,666.5  \ = 49,387.5 


Refer  to  No.  3,  Sheet  3,  for  correction.  94,194.3 


No.  6.— 1871. 

For  this  year  repeat  the  figures  of  1873,  the  rainfall  being  the  same,  viz. 
Item  1,  Sheet  3. 


Water,  65,012.4 
Steam,  35,264. 


338 


Saxonville  Mills 


Sheet  3. 

[C.] 

Corrections  of  Record  of  Power  for  1871  to  1875. 


No.  1. 

For  1871  the  record  begins  in  June,  and  is  consequently  imperfect,  and  I sub- 
stitute a duplicate  of  the  record  of  1873  in  its  place,  the  rainfall  being  sub- 
stantially the  same. 


No.  2. 

In  1872  the  city  took  1,676,666,400  gallons  in  75  days,  between  June  and 
September.  This  was  so  much  power  taken  from  the  water  credit  and  sup- 
plied by  and  credited  to  the  steam.  It  is  equal  to  7,614  horse-power  one 
day,  viz  : 1,676,666,400  -f-  75  = 22,355,552  X 8£  = 186,296,266  -j-  1440  = 
129,372  X 26  = 3,363,672  -f-  33,000  = 102  X 75  = 7,650,  which  should 
be  deducted  from  the  sum  of  the  steam-power  employed  this  year,  and 
added  to  the  water-power. 


No.  3. 

In  1875  the  city  took  in  143  days,  between  January  21  and  October  11, 
2,555,800,000  gallons,  equal  to  11,440  horse-power  for  one  day.  It  will  be 
ascertained  by  the  rule  applied  in  No.  2.  This  sum  should  be  deducted 
from  the  steam  and  added  to  the  water  service  of  that  year. 


No.  4. 


Water. 

Steam. 

Total. 

1871 

65,016  As  per  item  No.  1 sup. 

35,264  = 

100,280 

1872 

68,739  As  per  item  No.  2 sup. 

24,580  = 

93,319 

1873 

65,016 

35,264  = 

100,280 

1874 

54,032 

45,012  = 

99,044 

1875 

56,196.8  As  per  item  No  3. 

37,947.5  = 

94,144.3 

308,999.8 

178,052.5 

487,067.3 

Aggregate  from  Sheet  2,  with  corrections,  showing  amount  of  water  and 
steam  power  used  in  5 years,  from  1871  to  1875,  inclusive;  rainfall  being 
44.14. 


Appendix 


339 


Sheet  4. 

[I >.] 

Comparison  of  Rainfall  Power  in  periods  of  5 Years  each 
prior  to  1871. 


No.  1. 

1856  to  1860,  rainfall  51  inches.  Suppose  the  power  used  at  Saxonville  to  be 
the  same  for  those  five  years  as  for  the  five  years  from  1871  to  1875,  and 
suppose  the  rainfall  to  afford  power  in  proportion  to  its  amount,  and  the 
comparison  maybe  stated  thus:  44.14 : 308,999.8  ::  51 : 357,022.9,  sum  of 
water-power  used  these  five  years. 

The  result  would  be  stated  more  fully  thus : Whole  amount  of  power 

487,067.3;  of  which  357,022.9  is  water,  and  130,044.4  steam, 


No.  2. 

1861  to  1865,  rainfall  51.49.  Assuming  as  in  No.  1,  and  the  figures  will  be 
thus  : 4,414  : 308,999.8  : : 515  : 360,523,  sum  of  water-power  used  these  five 
years.  Stated  fully  it  is,  whole  power  487,067.3,  of  which  360,523  is  water 
and  126,544  steam. 


No.  3. 

1866  to  1870,  rainfall  57.77.  Assuming  as  above  in  Nos.  1 and,  2 and  the 
figures  will  be  44.14  : 308,999.8  : : 5,777  : 403,937,  sum  of  water-power  used 
these  five  years. 

Stated,  it  is,  whole  power  487,067.3,  of  which  4,039.37  is  water  and  83,130.3  is 
steam. 


Average  comparison  of  the  powers  used  in  these  4 semi-decades : 


* 

Water. 

Steam. 

1856  to  1860 

357,022.9 

130,044.4 

1861  to  1865 

360,523 

126,544 

1866  to  1870 

403,937 

83,130.3 

1871  to  1875 

308,999.8 

178,052.5 

1,430,482.7 

518,771.2 

| 487,067.3 

1,949,253.9.  Water,  11.15.  Steam,  4.15. 


Problem. 

Suppose  the  mills  to  he  run  at  say  No.  1 at  240  horse-power  9 months  by  day  and  8 months 
by  night.  The  result  may  be  stated  thus : 9 -j-  8 = 17  months,  or  517  days  X 240  = 124,080 
horse-power  for  one  day- 


Problem. 

Suppose  No.  2 (85  horse-power)  to  be  run  12  months  by  day  and  7 by  night,  it  would  produce 
this  result : 12  -J—  7 = 19  months  = 569  days  X 85  = 48,065  horse-power  for  one  day. 

Problem. 

Combine  the  foregoing,  and  we  have : 124,080  -J-  48,065  = 172,145  313=  550  horse-power 

per  day  for  every  year. 


340 


Saxon ville  Mills, 


[E.] 

Rainfall  at  Lake  Cocliituate. 


1872. 

1873. 

1874. 

1875. 

Inches. 

Inches. 

Inches. 

Inches. 

January  

1.86 

4.24 

2.96 

2.42 

February  

1.37 

2.43 

2.90 

3.15 

March 

3.06 

3.98 

1.18 

3.74 

April 

1.74 

2.69 

6.36 

3.23 

May 

3.24 

3.24 

3.40 

3.56 

June 

4.27 

0.38 

4.79 

6.24 

July 

5.55 

4.08 

3.16 

3.57 

August 

9.76 

7.17 

4.83 

5.^3 

September 

6.29 

2.62 

1.55 

3.43 

October 

3.69 

6.11 

1.04 

4.85 

November 

4.22 

4.54 

2.05 

4.83 

December 

3.42 

3.95 

1.70 

0.94 

Totals 

48.47 

45.43 

35.93 

45.49 

Appendix 


341 


[F.] 

LAKE  C0CH1TUATE. 


Table  showing  the  monthly  and  annual  rainfall  at  Lake  Cochituate 
from  1852  to  1871  inclusive ; also  the  average  for  each  month 
for  the  whole  term. 


Jan. 

Feb. 

Mar. 

Apr. 

May. 

June. 

July. 

Aug. 

Sept. 

Oct. 

Nov. 

Dec. 

Total. 

1852 

5.80 

1.76 

4.42 

9.60 

2.60 

2.00 

2.16 

8.27 

2.04 

3.40 

2.76 

3.12 

47.93 

1853 

3.68 

6.56 

2.92 

3.80 

6.32 

0.56 

2.84 

7.20 

5.44 

4.56 

'5.26 

6.59 

55.73 

1854 

2.45 

5.16 

4.16 

5.60 

3.92 

3.98 

2.32 

0.28 

3.68 

3.37 

7.79 

2.34 

43.15 

1855 

4.52 

3.50 

1.91 

2.65 

0.82 

1.98 

3.86 

0.77 

0.75 

4.16 

4.84 

5.20 

34.96 

1856 

1.44 

0.22 

0.66 

4.27 

7.81 

1.77 

1.76 

11.40 

3.13 

2.34 

1.43 

4.57 

40.80 

1857 

2.51 

1.30 

1.72 

10.23 

7.15 

4.02 

8.85 

6.62 

4.27 

7.06 

3.07 

6.30 

63.10 

1858 

2.61 

3.32 

3.87 

4.39 

2.23 

10.17 

3.46 

6.42 

5.17 

2.12 

2.91 

1.99 

48.66 

1859 

5.64 

2.91 

10.95 

1.37 

3.46 

3.16 

0.99 

7.69 

4.56 

0.33 

3.55 

4.41 

49.02 

1860 

1.24 

3.80 

1.98 

2.25 

1.98 

11.16 

6.82 

4.89 

9.92 

1.72 

5.97 

3.71 

55.44 

1861 

2.51 

3.81 

2.75 

6.44 

3.12 

2.64 

1.62 

7.79 

2.76 

3.20 

6.20 

2.60 

45.44 

1862 

7.82 

1.08 

4.18 

1.85 

2.71 

6.58 

6.54 

1.43 

2.62 

4.83 

7.69 

2.36 

49.69 

1863 

4.10 

4.38 

3.57 

11.34 

2 66 

1.98 

14.12 

5.61 

3.39 

4.56 

8.54 

5.05 

69.30 

1864 

3.37 

0.98 

8.44 

4.02 

2.84 

0.58 

1.06 

3.56 

1.52 

6.50 

5.45 

4.28 

42.60 

1865 

4.99 

4.45 

5.48 

2.18 

8.25 

0.91 

3.10 

3.36 

1.66 

6.99 

4.78 

3.31 

49.46 

1866 

1.44 

5.80 

3.92 

1.94 

6.46 

4.80 

13.35 

3.98 

8.36 

3.43 

4.52 

4.32 

62.32 

1867 

2.76 

5.40 

5.65 

2.43 

6.46 

2.95 

5.36 

12.36 

1.08 

7.27 

2.63 

1.90 

56.25 

1868 

3.70 

1.18 

2.51 

5.61 

8.12 

2.95 

2.16 

7.38 

7.69 

1.19 

6.77 

0.45 

49.71 

1869 

3.71 

7.07 

7.52 

2.57 

7.59 

3.68 

2.63 

2.34 

8.49 

9.50 

3.26 

5.98 

64.34 

1870 

7.85 

4.68 

6.04 

8.81 

3.14 

4.05 

3.10 

2.03 

0.64 

7.96 

4.40 

3.19 

55.89 

1871 

1.31 

2.30 

5.02 

2.29 

5.66 

5.96 

2.20 

3.56 

1.46 

5.38 

7.01 

3.24 

45.39 

Av. 

3.67 

3.48 

4.38 

4.68 

4.67 

3.70 

4.42 

5.35 

3.93 

4.49 

4.94 

3.75 

51.46 

342 


Saxonyille  Mills. 


Monday,  October  2d,  1876. 

The  commissioners  met,  pursuant  to  adjournment,  at  11^ 
o’clock,  A.  M. 

Commissioner  Russell.  There  is  one  point  to  which  the 
commissioners  would  like  to  call  the  attention  both  of 
the  counsel  in  the  cases  that  have  been  heard,  and  of  the 
counsel  in  the  cases  that  are  to  be  heard.  We  understand 
that  the  counsel  for  the  city  claim  that  under  their  construc- 
tion of  the  second  section  of  the  Act  of  1872,  the  city  is  not 
authorized  to  draw  water  from  Sudbury  river,  at  any  time 
when  water  is  running  over  the  dam  at  Lake  Cochituate. 

Mr.  Butler.  Yes,  sir. 

Commissioner  Russell.  And  that  that  restriction  is  ab- 
solute, and  applies  to  any  method  in  which  the  city  may 
draw  water  from  the  Sudbury  river. 

Mr.  Butler.  I think  so.  Of  course,  it  is  of  no  con- 
sequence how  they  get  it  out.  They  are  not  authorized  to 
draw  it. 

Commissioner  Russell.  The  construction  of  that  section 
might  be  otherwise ; and  the  commissioners  would  like  to 
suggest  that  to  the  counsel,  that  they  may  be  heard  upon  it. 

Mr.  Abbott.  I did  not  mean  to  acquiesce  in  that,  because 
I think  it  is  otherwise  ; and  at  the  proper  time  I shall  take 
occasion  to  so  claim. 

Mr.  Merwin.  That  is  a point  that  was  not  taken  or  sug- 
gested in  the  case  of  the  Essex  Company,  which  I represont. 
I think  there  is  an  obvious  answer  to  it ; and,  if  now  is 
a^proper  time,  I shall  be  quite  ready  to  submit  what  I have 
to  say  upon  it. 

Commissioner  Russell.  Perhaps,  to  avoid  opening  the 
case  of  the  Essex  Company  again,  you  may  be  content  to 
have  those  views  submitted  by  the  counsel  in  the  cases  that 
are  to  follow. 

Mr.  Abbott.  You  may  as  well  present  them  now,  Mr. 
Merwin. 

Mr.  Butler.  I see  that  it  is  capable  of  two  constructions  ; 
but  I have  a view  upon  it,  which  I think  will  show  what  was 
intended. 

Commissioner  Russell.  The  construction  was  first  stated 
at  the  hearing  of  the  case  for  the  Saxonville  mills,  and,  I 
think,  was  first  suggested  in  the  closing  argument  for  the 
city ; and  I thought  there  should  be  an  opportunity  for  a 
discussion  of  that  question. 


Argument  for  the  Defence. 


343 


Mr.  Butler.  My  proposition  is,  simply,  that  so  far  as 
we  have  taken  the  water,  up  to  the  time*  of  the  filing  of  the 
petitions,  we  have  taken  it  but  in  one  way,  and,  taking  it  in 
that  way,  we  are  limited  to  certain  restrictions,  and  nobody 
has  a right  to  presume  that  we  have  an  intention  to  do  it  in 
any  other  way,  or  that  we  should  do  it  differently  from  what 
the  statute  requires. 

Commissioner  Russell.  Mr.  Merwin,  I think  you  should 
be  heard  upon  that  point. 

Mr.  Merwin.  In  the  first  place,  gentlemen,  by  the  first 
section  of  the  act  under  consideration,  the  City  of  Boston 
are  authorized  to  take  all  the  water  of  Sudbury  river.  That 
is  the  first  and  comprehensive  provision  which  is  made  on 
that  subject  with  the  qualification  contained  in  Section  4, 
to  which  I will  refer;  and  that  qualification  is,  "That 
nothing  contained  in  this  act  shall  be  so  construed  as  to 
authorize  the  City  of  Boston  to  reduce  the  water  in  Sud- 
bury river  below  a sufficient  height,”  etc.,  — that  is  not  perti- 
nent to  this  inquiry,  — "or  to  draw  from  Farm  pond  or  Sud- 
bury river  into  Lake  Cochituate  when  the  water  runs  over 
the  dam  at  Lake  Cochituate.” 

Now,  as  furnishing  an  entire  answer,  as  I apprehend,  to 
the  suggestion  on  the  other  side,  we  have  this  authority, 
found  in  sections  1st,  2d,  and  3d  of  this  act : In  the  first 

place,  a provision  that  the  City  of  Boston  may  take  all  the 
water  of  Sudbury  river  for  the  purposes  designated  in  this 
act.  They  may  not  only  do  that,  but  they  may  build, 
among  other  things,  all  such  reservoirs  as  may  be  neces- 
sary for  storing  all  the  water  of  Sudbury  river.  That  is  con- 
tained in  the  first  section.  It  is  repeated  in  the  second 
section,  " For  the  purposes  of  this  act  the  said  city  may 
make  and  build  one,  or  more,  permanent  aqueducts  from 
the  aforesaid  water-sources  to  Chestnut  Hill  reservoir.” 

And  that  leads  me  to  say,  in  the  second  place,  that  by  the 
terms  of  this  act  the  City  of  Boston  are  not  called  upon  or 
required  to  draw  one  drop  of  the  water  of  Sudbury  river  into 
the  Cochituate  pond.  They  may  divert  the  whole  of  it,  at 
their  discretion,  into  the  Chestnut  Hill  reservoir,  or  into  any 
other  reservoir,  which  they  may  build  for  the  purpose  of  re- 
taining and  storing  this  water  of  Sudbury  river  until  they 
have  occasion  to  use  it. 

" For  the  purposes  of  this  act  the  said  city  may  make  and 
build  one,  or  more,  permanent  aqueducts  from  the  aforesaid 
water-sources  to  Chestnut  Hill  reservoir,  or  to  any  other 
reservoir  owned  by  said  city,  and  maintain  the  same  by  any 
work  suitable  therefor.”  That  is  one  thing  they  may  do. 


344 


Saxon ville  Mills. 


" May  connect  the  said  water-sources  with  Lake  Cochituate  ; ” 
but  the  authority  and  discretion  not  to  connect  the  waters  of 
this  river  with  Lake  Cochituate  is  quite  as  apparent,  quite  as 
distinct,  and  quite  as  prominent  as  the  authority  to  divert  it 
into  Lake  Cochituate,  — because  the  first  authority  given 
is  to  connect  by  suitable  aqueducts  the  water  of  this  river 
with  Chestnut  Hill  reservoir  or  any  other  reservoir  that  may 
be  constructed  by  the  city  for  that  purpose.  And  so,  fol- 
lowing it  through,  you  will  see  in  Section  3d  provisions  for 
building  these  reservoirs  for  the  purpose  of  holding  this 
water,  at  the  discretion  of  the  city. 

So  that  I submit,  may  it  please  the  commissioners,  that, 
in  the  first  place,  the  City  of  Boston  is  authorized  to  erect 
and  maintain  reservoirs  for  the  purpose  of  the  storing  of 
that  water,  and  is  not  required  to  turn  one  drop  of  it  into  the 
Cochituate  pond,  or  into  Farm  pond ; and  whether  they  do 
so  or  not  is  at  the  election  and  discretion  of  the  city  ; whether 
they  do  it  in  whole  or  in  part  is  at  the  election  of  the  city. 
And,  therefore,  we  must  apply  to  this  provision  the  rule 
which  has  been  uniformly  adopted  in  these  cases ; and  that 
is,  we  must  assume  that  whatever  the  City  of  Boston  may  do 
it  will  do.  If  it  is  authorized  to  take  all  the  water  of  the 
Sudbury  river,  and  store  it  in  reservoirs  and  not  divert  a 
drop  of  it  into  the  Cochituate  pond,  for  the  purposes  of  this 
case,  you  must  assume  that  they  will  do  so.  Otherwise  you 
will  fall  far  short  of  doing  justice  to  these  petitioners ; be- 
cause if  you  should  predicate  your  judgment  in  these  cases 
upon  the  assumption  that  a part  of  this  water  might  be 
turned  into  Cochituate  pond,  and  flow  over  the  dam  of 
Cochituate  pond,  and  thus  flow  in  its  natural  channel  to  any 
of  these  mills,  why,  the  City  of  Boston  might  do  just  what 
this  act  contemplates  that  they  will  do ; and  that  is,  build 
sufficient  reservoirs  to  hold  this  water,  so  that  not  any  of  it 
should  go  into  Cochituate  lake  or  into  Farm  pond. 

A stronger,  or  more  pertinent  illustration,  it  seems  to  me, 
cannot  be  found,  in  a case  of  this  sort,  than  is  found  in 
Ipswich  Mills  vs.  the  County  of  Essex.  There  the  City  of 
Salem  were  authorized  to  take  the  waters  of  a certain  pond 
for  the  purposes  of  the  city,  and  the  same  act  included  this 
provision,  — that  any  of  the  towns  through  which  the  pipes 
were  laid  from  this  main  pond  to  the  City  of  Salem  might 
have  the  right,  upon  paying  a reasonable  compensation  to 
the  City  of  Salem,  to  take  a sufficient  quantity  of  water  for 
their  purposes.  The  town  of  Beverly  for  a year  and  a half 
or  two  years  did  not  exercise  that  right.  The  petitioner 
suffered  no  damage  so  long  as  this  water  was  used  only  in 


Argument  for  the  Defence. 


345 


the  manner  originally  contemplated  by  the  act,  by  the  City 
of  Salem.  But  when  the  town  of  Beverly  tapped  this  pipe, 
and  took  the  water  for  its  purposes,  his  mill  was  substantially 
and  very  seriously  injured.  But  the  Court  held  in  that  case 
that,  inasmuch  as  the  petitioner  had  waited  beyond  the  time 
prescribed  in  the  statute  for  assessment  of  his  damages,  — 
although  the  act  which  really  caused  him  the  injury  had  been 
done  within  a very  short  time  of  the  filing  of  the  petition,  — 
his  right  was  gone,  because  the  original  taking  by  the  City  of 
Salem  was  a taking  within  the  purview  of  the  act.  They  had 
taken  it,  within  the  contemplation  of  the  law,  for  all  the  pur- 
poses for  which  it  could  be  lawfully  taken  within  the  terms  of 
the  act,  and,  among  others,  for  the  purpose  of  furnishing 
all  those  adjacent  towns  with  water.  And  therefore  the 
petition  was  dismissed  without  any  assessment  of  damages, 
although  in  that  case  the  act  of  taking  which  really  resulted 
in  the  injury  was  one  or  two  years  subsequent  to  the  actual 
taking  by  the  City  of  Salem,  for  the  appropriate  purposes  of 
that  city. 

Now,  the  City  of  Boston  to-day  may  take  this  water  in 
a certain  way,  which  may  not  result  to-day  in  serious  injury 
to  any  of  the  mill-owners  on  the  stream,  below  the  Sudbury  ; 
and  to-morrow,  or  the  next  day,  or  the  next  year  they  may 
do  all  that  the  act  authorizes  them  to  do,  and,  if  they  do  it, 
the  answer,  unless  you  assess  the  damages  now,  would  be, 
as  in  that  case,  "You  come  into  court  too  late.”  This  taking 
was  made  at  the  time  the  city  originally  took  the  water  for  any 
and  for  all  the  purposes  for  which  they  were  authorized  to 
take  it  by  the  terms  of  the  act. 

I therefore  submit,  Mr.  Chairman  and  gentlemen,  that  that 
suggestion  has  no  force  whatever  ; and  in  behalf  of  the  Essex 
Company  (if  I may  make  the  suggestion  without  weakening 
the  legal  answer,  — I mean  the  answer  so  far  as  the  construc- 
tion of  this  statute  is  concerned,)  — I would  farther  say  that, 
even  if  the  position  taken  by  the  learned  counsel  is  in  any 
degree  correct,  it  will  furnish  no  reason  for  diminishing  the 
assessment  of  damages  in  their  behalf,  because  the  value 
of  their  mill-property  will  not  be  increased  an  iota  by  the 
construction  contended  for,  that  in  times  of  freshet  the  City 
of  Boston  must  allow  the  Sudbury  river  to  flow  down  its 
natural  channel.  Mills  are  not  built  with  reference  to  the 
quantity  of  water  in  the  stream  at  times  of  freshet,  but  in 
reference  to  the  quantity  of  water  in  the  lowest  periods  of 
the  year. 

Mr.  Butler.  Pardon  me,  I think  this  is  not  arguing  the 
question. 


346 


Charles  P.  Talbot,  et  al. 


Commissioner  Russell.  This  is  hardly  arguing  the  con- 
struction of  the  statute. 

Mr.  Merwin.  If  that  construction  is  adopted,  still  it 
ought  not  to  diminish  our  damages.  It  ought  not  to  affect 
the  amount  of  damages  that  we  are  to  recover. 

Mr.  Butler.  I only  desire  that  whenever  the  commis- 
sioners make  a report  (I  do  not  propose  to  argue  the 
question  at  all) , they  may  make  the  report  as  to  the  grounds 
on  which  they  took  it ; that  they  had  a right  to  take  it  all  in 
another  way  ; and  that  that  proposition  is  wholly  a nugatory 
one,  and  does  not  mean  anything  ; — that,  being  put  in  care- 
fully at  the  last  end,  it  was  only  put  in  there  for  amusement. 
I do  not  propose  to  argue  it  at  all.  The  commissioners  may 
put  it  as  they  see  fit.  I would  say,  however,  in  reply  to  the 
criticism  upon  the  Ipswich  case,  that  if  the  town  had  put  in 
a thirty-inch  aqueduct  into  Wenham  pond,  which  could  carry 
only  so  much  water,  then,  in  order  to  supply  Beverly,  they 
would  put  in  another  thirty-inch  aqueduct.  I think  the  court 
would  have  said  that  that  was  a new  taking. 

Mr.  Abbott.  That  is  the  very  thing  they  did  do. 

Mr.  Butler.  They  took  from  their  original  pipe. 

Mr.  Abbott.  They  put  in  a larger  aqueduct. 

Mr.  Butler.  It  is  the  first  time  that  I ever  heard  that 
prescriptive  words  of  a statute  were  nugatory. 

Commissioner  Russell.  Gentlemen,  will  you  proceed 
with  the  case  of  "Talbot  et  al.  vs.  the  City  of  Boston.”  I 
think  these  two  cases  can  be  heard  just  as  well  together. 
Mr.  Butler  claims  that  the}7  ought  to  have  been  joined  to- 
gether. 

Mr.  Butler.  I propose  to  object  to  the  fact  that  they  are 
brought  separately  and  not  jointly,  so  that  the  commissioners 
are  obliged  to  make  a separate  assessment  on  each,  while 
the  commissioners,  being  one  and  the  same  body,  can  do 
that  without  trouble  and  difficulty,  and  would  probably  find 
out  what  the  whole  value  of  the  water  taken  was,  and  then 
divide  it  equitably  among  the  parties.  When  the  case  goes 
to  a jury,  if  ever,  there  would  be  this  great  and  practical 
difficulty  : first,  that  one  jury  might  find  the  water  to  be  a 
very  large  amount  in  one  case  (or  a very  small  amount),  and 
the  damages  a very  small  amount  or  a very  large  amount, 
going  to  one  proprietor  of  the  water  ; and  in  the  other  case 
another  jury  might  find  an  entirely  different  amount,  either 
larger  or  smaller  than  the  first  jury,  and  thus  the  city  might  be 
in  a condition  of  paying  a great  deal  more  than  the  rightful 
damages  of  either  one  of  the  petitioners,  provided  they  had 
joined  together  in  one  petition  ; and  the  city  is  put  to  the  ex- 
pense and  trouble  of  dividing  between  the  petitioners  them- 


Petition. 


347 


selves  the  amount  of  their  rights  and  the  amount  of  damages 
which  should  go  to  each,  by  the  testimony  and  argument  dur- 
ing the  trial,  instead  of  the  damage  done  by  the  taking  being 
assessed,  and  then  allowing  the  parties  to  make  the  division 
among  themselves,  in  such  manner  as  they  are  advised. 
That  is,  while  this  matter  is  a practical  one,  and  one  of  very 
considerable  difficulty,  the  commissioners  have  no  power  to 
try  the  cases  together.  I do  not  see  how  the  Court  can  put 
them  together. 

Mr.  Abbott.  My  proposition  was  this  : that  the  evidence 
should  be  heard  in  both  cases  together,  to  save  the  trouble 
of  going  over  the  cases  twice. 

Mr.  Butler.  Practically,  there  will  be  no  difficulty, — 
because  all  the  testimony  to  one  case,  applicable  to  the  other, 
will  be  in.  I prefer  to  treat  them  separately,  for  the  reason 
that  they  ought  to  have  been  together, — if  that  is  not  a 
paradox. 

Commissioner  Russell.  I suppose,  then,  they  must  be 
separately  heard. 

Mr.  Butler.  Here,  there  will  be  no  bad  result.  In  the 
other  case,  there  might  be. 


Charles  P.  Talbot,  et  al.  , Petitioner,  for  Assessment 
of  Damages,  vs.  City  of  Boston. 

To  the  Honorable  the  Justices  of  the  Superior  Court , now  sitting  at 
Cambridge , within  and  for  the  County  of  Middlesex  and  Com- 
monwealth of  Massachusetts : — 

The  petition  of  Charles  P.  Talbot  and  Thomas  Talbot,  respec- 
tively of  Lowell  and  Billerica,  in  said  county, 

Respectfullly  represent  your  petitioners  that  they  are  now,  and 
for  three  years  last  past  and  longer  have  been,  the  owners  in  fee 
simple  and  possessed  of  certain  parcels  of  land,  with  the  buildings 
thereon  standing,  situate  in  Billerica  aforesaid,  and  bounded  and 
described  as  follows  : — 


First  Parcel. 

Beginning  at  the  southeast  corner  of  the  bridge  over  the  canal 
at  the  abutment,  and  running  a southerly  course  one  hundred  and 
seventy-two  feet,  more  or  less,  to  land  now  or  late  of  Joel  Dix ; 
thence  southerly,  a little  more  easterly,  by  said  Dix  land,  one 
hundred  and  sixty-two  feet,  more  or  less,  to  a stake  ; thence  the 
line  turns  nearly  at  a right  angle  and  runs  an  easterly  course,  by 
the  stone  wall,  eighty-seven  feet,  more  or  less,  to  the  Concord 
river ; thence  a northerly  course  by  the  river  thirty  feet,  more  or 
less,  to  a stake ; thence  the  line  turns  and  runs  a northeasterly 
course  by  the  river  one  hundred  and  nineteen  feet,  more  or  less,  to 


348 


Charles  P.  Talbot,  et  al. 


a bend  in  the  river ; thence  the  line  runs  a northerly  course  one 
hundred  and  twenty-one  feet,  more  or  less,  by  the  river  to  the 
northeast  corner  of  a wooden  store-house  or  building ; thence 
northerly  by  the  river  on  a curving  line  to  the  northerly  side  of 
the  towing-path,  or  floating  bridge,  one  hundred  feet,  more  or  less  ; 
thence  by  a westerly  course  one  hundred  and  thirty-eight  feet, 
more  or  less,  to  the  point  of  beginning ; containing  about  forty- 
eight  thousand  square  feet. 

Second  Parcel. 

Beginning  at  the  same  place  as  the  last-described  piece,  at  the 
southeast  corner  of  the  canal  bridge,  from  thence  the  line  runs  on 
the  southerly  side  of  the  canal,  an  easterly  course,  one  hundred 
and  thirty  feet,  more  or  less ; thence  north-northwesterly  across 
the  canal  seventy  feet,  more  or  less,  to  the  most  easterly  point  in 
the  wharf  by  the  Concord  river ; thence  the  line  runs  a north- 
westerly course,  by  said  river  and  wharf,  eighty-eight  feet,  more 
or  less,  to  a point  that  is  one  hundred  and  thirty  feet  from  the 
point  of  beginning  ; thence  southerly  by  the  roadway  one  hundred 
and  thirty  feet  to  the  point  of  beginning ; containing  ninety-six 
hundred  square  feet,  more  or  less. 


Third  Parcel. 

Beginning  at  the  southwest  corner  of  the  bridge  over  Concord 
river,  near  the  Milldam,  thence  westerly  by  the  river  one  hnn- 
dred  and  eighty  feet,  more  or  less ; thence  in  a curving  line  by 
the  river  thirty-four  feet,  more  or  less  ; thence  southerly  by  said 
river  to  the  southwesterly  corner  of  the  saw-mill,  or  the  stone 
wall,  one  hundred  and  twenty-five  feet,  more  or  less  ; thence  nearly 
at  a right  angle  by  a stone  wall  and  Concord  river  one  hundred 
and  seventy-two  feet,  more  or  less,  to  the  northeast  corner  of  the 
dye-house  and  canal  wasteway ; thence  nearly  at  a right-angle 
westerly  by  said  river  and  bank  of  the  canal  one  hundred  and 
ninety  feet,  more  or  less,  to  a stake  and  stones ; thence  nearly  at 
a right  angle  southerly  or  south-southeasterly,  crossing  the  canal, 
partly  by  land,  now  or  late  of  Mixer,  two  hundred  and  sixteen 
feet,  more  or  less,  to  the  county  road  leading  to  the  mills ; thence 
nearly  at  a right  angle  easterly  by  said  road  two  hundred  and 
seventy  feet,  more  or  less,  to  a post  driven  in  the  ground  at  a 
curve  in  the  road  ; thence  northeasterly  one  hundred  and  five  feet 
to  a stake  at  the  bridge  over  the  canal ; thence  more  northerly  by 
the  canal  bridge  and  county  road  one  hundred  and  twenty-eight 
feet  to  the  southeasterly  corner  of  the  mill  basin  ; thence  north- 
erly by  said  bridge  and  county  road  through  the  basin  one  hundred 
and  forty-five  feet  to  the  point  of  beginning. 


Fourth  Parcel. 

Beginning  at  the  northeast  corner  of  the  land  sold  by  the  pro- 
prietors of  Middlesex  Canal  to  John  Mixer ; thence  northerly, 


Petition. 


349 


crossing  the  canal,  to  ninety-two  feet,  more  or  les3,  to  the  Concord 
river ; thence  westerly  by  said  river  two  hundred  and  ten  feet, 
more  or  less ; thence  southerly,  crossing  the  canal  one  hundred 
feet  to  the  northwest  corner  of  land  sold  by  said  proprietors  to  John 
Mixer ; thence  easterly  two  hundred  and  five  feet  by  the  southerly 
side  of  the  towing  path  ; containing  eighteen  thousand  six  hundred 
feet,  more  or  less. 

Fifth  Parcel. 

Beginning  at  the  northwest  corner  of  land,  last  described,  by  the 
Concord  river ; thence  west-northwesterly  by  said  river  one  hun- 
dred and  fifty-two  feet,  more  or  less,  passing  by  the  guard  gate  ; 
thence  crossing  the  canal  southerly  one  hundred  and  thirteen  feet 
to  the  northwesterly  corner  of  a piece  of  land  sold  by  said  propri- 
tors  to  Israel  Colson ; thence  easterly  or  southeasterly  by  said 
Colson  land  to  a stake  at  the  northwesterly  corner  of  land  sold  to 
John  Mixer ; thence  northerly,  crossing  the  canal,  one  hundred 
feet  to  the  Concord  river  at  the  point  of  beginning ; containing 
about  thirteen  thousand  three  hundred  and  seventy  feet,  more  or 
less. 

Sixth  Parcel. 

Beginning  at  the  county  road  at  the  southwest  corner  of  land  sold 
by  said  proprietors  to  John  M.  Colson,  partly  by  land  last  described, 
crossing  the  canal  three  hundred  and  fifty-three  feet  to  Concord 
river  ; thence  by  Concord  river,  at  the  foot  of  the  canal  bank,  two 
hundred  and  fifteen  feet  to  a stake  by  the  southerly  side  of  said 
river  ; thence  by  the  river  one  hundred  and  five  feet  to  the  northern 
end  of  the  lock ; thence  west  by  the  northeast  end  of  said  lock, 
seventeen  feet  to  the  west  side  of  said  lock  ; thence  northeast  by 
said  river  ninety  feet,  more  or  less ; thence  west  one  hundred  and 

nineteen  feet  to  the  private  way  of  one Farmer,  deceased; 

thence  south  by  said  way  to  a point  near  the  southeast  end  of  Far- 
mer’s bridge,  two  hundred  and  fifty-two  feet ; thence  southeasterly, 
by  the  road,  eighty-six  feet,  more  or  less,  to  another  private  road : 
thence  south  by  said  last  private  roadway  five  hundred  and  eighty- 
seven  feet ; containing  one  hundred  and  eighteen  thousand  three 
hundred  and  sixty-three  feet. 

Seventh  Parcel. 

Beginning  at  a point  in  the  county  road  leading  to  the  mills, 
just  fifty-one  feet  westerly  of  the  southwesterly  corner  of  the  land 
the  proprietors  of  the  Middlesex  Canal  sold  to  Israel  Colson ; and 
from  thence  the  line  runs  a westerly  course  by  the  said  county 
road  three  hundred  and  sixtj'-two  feet,  more  or  less,  to  a stake  and 
stones  northeasterly  from  said  Israel  Colson’s  house  ; from  thence 
the  line  curves  and  runs  ninety  feet,  more  or  less,  to  a stake  and 
stones  on  the  road  leading  to  the  canal ; from  thence  the  line  runs 
a northerly  course  three  hundred  and  forty-five  feet,  more  or  less, 
to  the  private  way  laid  out  by  said  proprietors ; thence  by  said 
private  way  five  hundred  and  twenty-three  feet,  more  or  less,  to 


350 


Chakles  P.  Talbot,  et  al. 


the  county  road  at  the  point  of  beginning  ; containing  about  eighty- 
four  thousand  one  hundred  thirteen  feet,  more  or  less. 

Eighth  Parcel. 

Beginning  at  the  southwesterly  corner  of  land  sold  by  said  pro- 
prietors to  Israel  Colson,  northwesterly  by  the  said  private  way 
laid  out  by  the  said  proprietors,  five  hundred  and  eighty-seven  feet, 
more  or  less,  to  the  road  leading  by  Colson’s  house  to  the  canal ; 
thence  southerly  fifty-one  feet  by  said  last-named  road ; thence 
southeasterly  five  hundred  and  twenty-three  feet,  more  or  less,  to 
the  county  road  leading  to  the  mills ; thence  fifty-one  feet,  more 
or  less,  to  the  point  of  beginning  ; containing  twenty-two  thousand 
two  hundred  feet,  more  or  less. 


Ninth  Parcel. 

Beginning  at  the  road  near  William  Rogers’  house,  thence  east- 
erly by  said  road  ; northerly  by  land  of  said  proprietors  ; westerly 
by  the  Mill  pond,  so  called  ; southerty  by  land  formerly  of  Jona- 
than Pollard,  an  elm  tree  standing  in  the  line,  to  the  first-men- 
tioned bound,  containing  an  acre,  more  or  less. 


Tenth  Parcel. 

Beginning  at  the  stake  and  stones  opposite  the  westerly  end  of 
William  Rogers’  dwelling-house  on  the  westerly  side  of  the  road 
that  leads  from  Billerica  meeting-house,  just  five  rods  distant  from 
the  wall  on  the  north  side  of  the  bank  of  the  canal  as  now  stoned 
up ; thence  northwesterly  by  said  Rogers’  land,  keeping  just  five 
rods  distant  from  the  said  wall  on  the  north  side  of  the  bank  of  the 
canal,  continuing  or  extending  into  the  Mill  pond  or  Concord 
river ; thence  keeping  five  rods  distant  from  the  canal  agreeably 
to  the  course  thereof,  as  far  westward  as  said  Rogers’  land  ex- 
tended, and  as  far  as  he  had  a right  to  sell  to  said  proprietors ; 
thence  westerly  by  Concord  river  until  it  comes  to  Jonathan  Pol- 
lard’s land,  or  land  which  he  sold  said  proprietors ; thence  east- 
wardly  by  the  land  so  sold  and  to  the  road  ; thence  northerly  by 
the  said  road  to  the  bound  at  the  point  of  beginning ; containing 
about  an  acre  and  a quarter. 

Eleventh  Parcel. 

Beginning  at  a stake  and  stones  by  the  easterly  side  of  the  road 
just  four  rods  distant  from  the  southeasterly  corner  of  said  Rogers’ 
dwelling-house  ; thence  easterty  by  said  Rogers’  land  about  seven- 
teen rods  to  a stake  and  stones  placed  just  ten  and  a half  rods 
from  the  centre  line  of  the  Middlesex  Canal,  measuring  at  right 
angles  from  said  centre  line ; thence  more  southeasterly,  parallel 
with  said  centre  line,  and  just  ten  and  one-half  rods  from  it,  along 
the  southerly  line  of  said  Rogers’  land  to  the  Jonas  Saunders  road, 
so  called ; southerly  along  said  road,  across  the  canal  at  the 


Petition. 


351 


bridge,  and  extending  southward  to  a stake  and  stones  just  ten 
rods  from  the  centre  line  of  said  canal,  measuring  at  right  angles, 
thence  northwesterly  at  a distance  of  ten  rods  from  said  centre 
line  to  a stake  and  stones  at  the  first-mentioned  road  ; thence 
north-northeasterly  by  the  east  side  of  said  road  crossing  the  canal 
at  the  bound  first  mentioned. 

Twelfth  Parcel. 

Beginning  at  the  northerly  side  of  the  road  leading  from  Bil- 
lerica to  Billerica  mills,  at  a point  three  hundred  and  seventy-five  feet 
distant  easterly  from  the  canal  bridge,  as  said  road  runs  ; thence 
northerly  two  hundred  and  sixteen  feet ; thence  westerly  two  hun- 
dred and  five  feet ; thence  southeasterly,  running  at  right  angles 
to  it,  to  said  road  ; thence  by  said  road  to  the  point  of  beginning. 


Thirteenth  Parcel. 

Beginning  at  a point  in  said  last-named  road  leading  from  Bil- 
lerica to  Billerica  mills,  at  the  southwesterly’  corner  of  the  last- 
described  parcel ; thence  running  at  right  angles  to  said  road  about 
two  hundred  and  eight  feet  along  said  last-described  parcel ; thence 
west-northwesterly  one  hundred  and  forty-eight  feet ; thence  turn- 
ing and  running  three  hundred  and  fifty-three  feet  south-south- 
easterly to  said  road  and  at  right  angles  to  the  same  ; thence  along 
said  road  to  the  point  of  beginning. 


Fourteenth  Parcel. 

All  that  tract  of  land  lying  to  the  northeast  of  parcels  nine,  ten 
and  eleven,  and  southwest  of  the  location  of  the  Boston,  Lowell 
and  Nashua  Railroad. 


Fifteenth  Parcel. 

All  that  tract  of  land  lying  between  Wilson  street,  so  called,  and 
Concord  river,  bounded  as  follows : Beginning  at  a point  on 

the  southeasterly  side  of  Wilson  street,  distant  thirty-eight  and 
three-quarters  rods,  as  the  line  runs,  southwesterly  from  Elm  street, 
which  is  the  road  first  described,  as  leading  from  Billerica  to  the 
mill,  thence  southwesterly  on  said  road  as  the  line  runs  twenty- 
five  rods  ; thence  nearly  at  a right  angle  on  these  lines  to  the  river 
fifteen  and  five-eighths  rods  ; ^ thence  northeasterly  on  a curving 
line  by  the  river  about  thirty-one  rods ; thence  northeasterly, 
nearly  at  a right  angle  on  three  lines,  about  twenty-five  rods,  to 
said  Wilson  street  at  the  point  of  beginning. 

Sixteenth  Parcel. 

Beginning  at  a point  on  the  northwesterly  side  of  Wilson  street, 
at  a point  distant  eighteen  and  three-quarters  rods  ; southwesterly 
from  Elm  street,  and  running  southwesterly  on  two  lines  fifty  rods 
along  said  road  ; thence  northwesterly,  ten  rods ; thence  north- 


352 


Charles  P.  Talbot,  et  al. 


easterly,  forty-seven  and  one-half  rods ; thence,  at  a right  angle, 
ten  rods  southeasterly  to  said  Wilson  street,  at  the  point  of 
beginning. 


Seventeenth  Parcel. 

Beginning  on  Wilson  street,  at  the  northeasterly  corner  of  the 
last-described  parcel,  thence  northeasterly  on  said  street  five  and 
one-half  roads ; thence  northwesterly,  ten  rods ; thence  south- 
westerly, four  and  one-half  rods ; thence  southeasterly,  eight  rods 
and  one-half  to  said  Wilson  street,  at  the  point  of  beginning, — be 
said  measurements  more  or  less. 


Eighteenth  Parcel. 

Beginning  at  the  northwesterly  corner  of  the  last-described 
parcel ; thence  southwesterly  along  the  same,  one  rod  ; thence 
northwesterly  to  Elm  street,  so  called,  and  at  right  angles  to  it, 
seven  and  one-half  rods ; thence  northeasterly  along  said  Elm 
street,  five  rods  ; thence  at  right  angles  to  said  street,  ten  rods  to 
the  northeast  boundary  of  the  last-described  parcel ; thence  north- 
westerly along  said  boundary,  five  rods  to  the  point  of  beginning. 

And  your  petitioners  further  say  that  they  are  the  owners  and 
proprietors  of  certain  valuable  water-rights,  water  and  mill  privi- 
leges arising  from,  and  formed  by,  the  said  Concord  river  at  the 
mill-dam  described  and  referred  to,  and  of  the  right  to  use  the 
waters  of  said  river  for  all  legal  purposes  at  their  property  herein 
described  in  said  Billerica,  and  that  they  have  been  such  owners 
and  proprietors  of  said  valuable  water-rights,  water  and  mill  privi- 
leges, and  right  to  use  the  water  of  said  Concord  river  for  three 
years  last  passed,  and  longer. 

And  your  petitioners  further  say,  that  during  all  said  period  of 
three  years  last  passed,  and  longer,  they  have  been,  and  are  now, 
the  owners  of  certain  water-mills,  factories,  and  chemical  works 
• connected  therewith,  and  used  in  the  carrying  on  of  their  business 
upon  said  parcels  of  land  in  the  manufacture  of  woollen  goods  and 
other  fabrics,  and  in  the  preparation  and  working  of  logwood, 
chemicals,  and  dyes,  run  and  operated  by  water-power  derived  and 
obtained  by  them  from  the  waters  flowing  in  and  along  the  channel 
and  bed  of  said  Concord  river,  and  from  canals,  artificial  streams, 
and  sluiceways  from  said  Concord  river,  through  and  along  the 
lands  of  your  petitioners  aforesaid. 

And  your  petitioners  further  say,  that  they  have  the  right,  and 
for  more  than  three  years  last  past  have  had  the  right,  that  said 
Concord  river  should  flow  in  the  same  manner  and  in  the  same 
quantity,  volume,  and  force,  and  within  the  same  limits,  channel, 
and  bed,  as  said  river  did  at  the  time  of  the  action  of  the  City  of 
Boston  hereinafter  set  forth,  and  had  from  time  immemorial  prior 
thereto,  and  that  the  waters  thereof  should  continue  to  flow  by  and 
through  their  lands,  mills,  and  factories,  in  its  ancient  and  accus- 
tomed natural  channel  and  bed,  and  over  your  petitioners’  dam, 


Petition. 


353 


and  through  the  artificial  streams  and  sluiceways  in  their  land  and 
over  and  through  their  water-wheel. 

And  your  petitioners  further  say,  that  Sudbury  river,  so  called, 
in  said  Commonwealth,  is  one  of  the  natural  sources  and  tributa- 
ries of  said  Concord  river  and  the  waters  thereof  one,  and  the  prin- 
cipal means  of  supply  of  said  Concord  river,  and  that  the  waters 
of  said  Sudbury  river,  when  undisturbed  and  unobstructed  and  left 
to  their  natural  course,  and  current,  flow  into  the  said  Concord 
river  above  the  lands,  mills  and  factories  of  your  petitioners  before 
described,  and  through  and  by  means  of  the  said  Concord  river, 
naturally  flow  and  pass  by  and  through  the  lands,  mills,  and  fac- 
tories of  your  petitioners,  and  furnish  power  for  running  and  oper- 
ating the  same,  and  are  of  great  value  to  and  advantage  to  your 
petitioners. 

And  your  petitioners  further  represent  that  by  virtue  of  an  act 
of  the  Legislature  of  the  Commonwealth  of  Massachusetts,  entitled 
“An  act  to  authorize  the  City  of  Boston  to  obtain  an  additional 
supply  of  pure  water,”  and  approved  the  eighth  day  of  April,  A.  D. 
1872,  and  numbered  one  hundred  and  seventy-seven  of  the  acts  of 
said  year,  the  said  City  of  Boston,  in  said  County  of  Suffolk,  has 
within  three  years  last  past,  previous  to  the  date  of  the  petition  first 
actually  taken,  through  the  agency  pointed  out  in  said  act  and  for 
the  purposes  therein  set  forth,  all  the  waters  of  the  Sudbury  river, 
and  all  the  water  in  Farm  pond,  so  called,  and  of  the  streams  and 
tributaries,  whether  natural  or  artificial,  flowing  into  them  and 
connecting  them  at  and  above  the  dam  and  permanent  obstructions 
built  by  the  said  City  of  Boston  in  A.  D.  1872,  five  hundred  feet, 
more  or  less,  below  the  crossing  of  said  Sudbury  river  by  the  Bos- 
ton, Clinton  and  Fitchburg  Railroad,  in  the  town  of  Framingham, 
in  said  County  of  Middlesex,  and  near  and  below  the  brook  which 
is  the  outlet  from  Farm  pond  into  said  Sudbury  river,  and  still 
continues  and  maintains  the  said  taking,  and  said  dam  and  perma- 
nent obstructions,  and  has  withdrawn  and  diverted  the  said  waters 
from  their  natural  and  accustomed  flow  into  the  said  Concord 
river,  and  by  and  through  the  channel  and  bed  thereof  to  and 
through  the  lands,  mills  and  factories  of  your  petitioners,  and  has 
altered  and  changed  the  natural  course  and  current  of  said  Sud- 
bury river  so  that  the  waters  thereof,  and  of  Farm  pond,  no  longer 
contribute  or  flow  into  the  said  Concord  river,  and  have  ceased 
through  and  by  the  channel  and  bed  of  said  Concord  river  to  reach, 
pass  by  and  through  the  lands,  mills  and  factories  of  }^our  peti- 
tioner, and  will  not  and  can  not  flow  through  the  channel  and  bed 
of  said  Concord  river,  and  by  and  through  the  lands,  mills,  and 
factories  of  your  petitioners  aforesaid,  as  they,  your  petitioners, 
have  the  right  they  should,  and  as  said  waters  would  now  and 
would  hereafter  continue  to  do,  but  for  the  action  aforesaid  of  the 
said  City  of  Boston. 

And  said  petitioners  further  say  that  by  means  of  said  perma- 
nent obstruction  of  the  natural  flow,  current,  and  course  of  the 
waters  of  the  said  Sudbury  river  and  Farm  pond,  and  the  taking, 
withdrawal,  and  diverting  thereof  as  aforesaid  from  their  natural 
and  accustomed  flow,  and  by  reason  and  means  also  of  the  said 


354 


Charles  P.  Talbot,  et  al. 


permanent  obstruction,  dam,  and  erections,  which  the  said  City  of 
Boston  has  built  and  erected  as  aforesaid,  and  still  maintains,  the 
waters  of  said  Sudbury  river  and  Farm  pond  do  not  and  cannot 
now  and  will  never  hereafter  flow,  as  they  did  and  would  naturally, 
into  the  said  Concord  river  and  through  the  channel  and  bed  of  the 
same,  to  and  through  the  lands,  mills,  and  factories  of  your  peti- 
tioners, and  the  natural  flow  and  stream  of  said  Concord  river 
through  and  by  its  channel  and  bed,  and  by  and  through  the  lands, 
mills,  and  factories  of  your  petitioners,  have  been  greatly  lessened 
and  reduced  fin  quantity,  volume,  and  force,  and  thereby  and  by 
reason  thereof  said  petitioners  are  deprived  of  a large  part  of  their 
water-power,  water-rights,  water  and  mill  privileges,  and  of  their 
right  to  the  natural  current  an  d flow  of  said  Concord  river  afore- 
said, and  that  the  same  are  permanently  injured  and  destroyed,  and 
that  the  same  and  their  lands,  mills,  factories,  and  chemical  works 
works  are  greatly  damaged  and  lessened  in  value. 

And  your  petitioners  further  say  that  by  the  said  taking  of  the 
waters  of  the  Sudbury  river  and  Farm  pond,  and  by  the  erection 
and  maintenance  of  said  dam,  and  by  the  acceptance  of  the  powers 
and  privileges  given  by  said  act  by  said  city,  and  by  their  loss  of 
the  right  to  the  natural  flow  of  Concord  river,  they  have  sustained 
great  damages  in  their  property,  and  that  they  have  not  and  have 
not  been  able  to  agree  with  the  said  City  of  Boston  upon  the  dam- 
ages to  be  paid  them  therefor,  and  that  said  city  has  not  offered  to 
pay  them  as  such  damages  any  sum  whatever. 

Wherefore  your  petitioners  pray  and  petition  this  Honorable 
Court  for  the  assessment  of  their  said  damages  from  the  said 
taking  of  the  said  waters  of  Sudbury  river  and  Farm  pond,  con- 
formably to  law,  and  that  after  due  notice  and  summons  to  the 
said  City  of  Boston,  this  Honorable  Court  will  appoint  upon  de- 
fault or  hearing  of  the  said  City  of  Boston  three  judicious  and 
disinterested  freeholders  of  this  Commonwealth,  who  shall  assess 
said  damage  according  to  law,  and  that  all  such  and  other  proceed- 
ings may  be  had  in  the  case  as  to  law  and  justice  shall  appertain. 

CHARLES  P.  TALBOT. 
THOMAS  TALBOT. 

May  29,  A.  D.  1875. 


Mr.  Somerby.  This  was  filed  in  Court,  May  31st,  1875. 
The  answer  is  as  follows  : — 


Commonwealth  of  Massachusetts.  Middlesex,  ss. 


CIIAS.  P.  TALBOT  ET  ALS.,  PETITIONERS  FOR  DAMAGES 
AGAINST  THE  CITY  OF  BOSTON. 


1.  And  now  come  said  City  of  Boston,  and  for  answer  to  the 
allegations  of  said  petitioners  say,  that  they  admit  it  to  be  true, 


Answer. 


355 


as  therein  averred,  that  the  petitioners  were  in  possession  of  the 
land  therein  described  at  the  times  therein  set  forth,  but  said 
defendants  deny  that  the  petitioners  were  the  lawful  owners  of  the 
water-power  therein  described,  and  require  them  to  make  such 
proof,  as  they  are  advised,  of  the  ownership  of  such  water-power 
on  the  Concord  river. 

2.  And  the  defendants,  further  answering,  admit  that  the  Sud- 
bury river  is  one  of  the  branches  and  tributaries  of  said  Concord 
river,  and  the  waters  thereof,  and  the  streams  running  into  the 
same  would  naturally  flow  into  said  Concord  river,  and  flow  into 
and  make  a part  of  a head  of  water  raised  by  a dam  at  Billerica, 
as  set  forth  in  said  Chas.  P.  Talbot,  et  als.,  petition. 

3.  The  defendants,  further  answering,  aver  that  said  Chas.  P. 
Talbot,  et  als.,  do  not  own  any  rights  in  said  water-power,  except 
it  may  be  certain  indefinite  rights  in  common  with  other  parties 
who  have  suffered  damages  jointly  with  them,  if  any,  by  the 
alleged  taking,  or  any  taking  of  the  water  of  Sudbury  river  by  the 
City  of  Boston,  and  the  defendants  claim  that  this  petition  for 
damages  for  the  taking  of  the  water  of  Sudbury  river  by  said 
Boston,  under  and  by  virtue  of  the  act  of  the  Legislature,  as  set 
out  in  the  petition,  should  have  been  brought  by  the  petitioners 
jointly  with  Faulkners’,  of  said  Billerica,  and  others  to  the  defend- 
ants unknown,  who  claim  to  own  rights  in  said  water-power,  sub- 
ject to  certain  rights,  reservations  and  conditions  therein  to  the 
town  of  Billerica,  who  are  all  jointly  owners,  or  jointly  interested 
in  common,  and  not  in  severalty  in  said  water-power  with  said 
petitioners  ; and  said  petition  of  said  Chas.  P.  Talbot,  et  als.,  if  it 
may  be  sustained  at  all,  should  be  jointly  with  the  other  owners, 
in  common  of  said  waters  and  water-power,  who  claim  damages 
against  said  city,  because  of  the  taking  of  said  water,  and  not 
severally  by  each,  because  the  defendants  say  that  the  water-power 
of  said  Concord  river,  at  said  Billerica,  being  undivided,  it  would 
be  exceedingly  burdensome  and  expensive  to  said  defendants  to  be 
called  upon  to  divide  and  show  how  the  taking  of  said  water  of 
Sudbury  river  would  affect  the  owners  and  claimants  of  the  water 
severally,  so  as  to  protect  themselves  against  the  several  claims  of 
each  owner  therein.  And  they  therefore  pray  the  Court  that  the 
petition  may  be  dismissed  for  non-joinder  of  the  other  owners  of 
said  water-power,  or  that  all  of  the  owners  of  any  rights  in  said 
water-power,  created  by  said  dam  at  said  Billerica,  may  be  ordered 
to  come  in  and  join  as  parties  in  said  petition,  so  that  there  shall 
be  but  one  assessment  of  damages  for  one  act  of  taking  bjr  said 
city  of  said  water,  and  a joint  injury  thereby  to  said  water-power 
owned  by  the  parties  aforesaid  at  said  Billerica. 

4.  And  the  defendants,  further  answering,  deny  that  they  have 
taken  and  diverted  and  withdrawn  any  of  the  waters  of  Sudbury 
river  before  the  filing  of  said  petition  under  the  authority  con- 
ferred by  said  act,  set  forth  in  said  petition,  in  the  manner  and 
form  therein  set  forth,  or  otherwise  by  said  city  acting  under  and 
by  virtue  of  the  authority  of  said  act. 

5.  And  the  defendants,  further  answering,  say  that  said  peti- 
tioners, and  the  owners  of  said  water-power  at  said  Billerica,  on 


356 


Charles  P.  Talbot,  et  al. 


the  Concord  river,  are  not,  and  will  not  be  damnified  by  the  taking 
of  the  water  of  Sudbury  river  under  said  act,  nor  do  they  have 
any  right  therein  or  thereto,  because  they  say  that  by  the  act  of  the 
General  Court  of  Massachusetts,  passed  June  22,  1793,  to  which, 
with  the  acts  additional  thereto,  the  defendants  beg  leave  to  refer 
as  part  of  their  auswer,  certain  persons  therein  named  were  incor- 
porated b}T  the  name  of  the  “Proprietors  of  the  Middlesex  Canal,” 
as  a perpetual  corporation  for  the  sole  object  of  uniting  the  waters 
of  the  Merrimack  river  in  said  Middlesex  county,  with  the  waters 
of  the  Medford  river  in  said  county,  by  cutting  a canal  for  that 
purpose,  “provided  that  whereas  it  may  be  necessary  in  the  prose- 
cution of  the  foregoing  business  that  the  property  of  private 
persons  may,  as  in  the  case  of  highways,  be  appropriated  to  public 
use.” 

It  was  also  enacted  therein  that  in  the  case  wherein  any  person 
shall  be  damaged  in  his  property  by  said  proprietors  in  any  manner, 
if  said  proprietors  do  not  make  or  tender  reasonable  satisfaction 
to  the  acceptance  of  the  persons  damaged  by  them,  such  persons 
may  apply  within  one  year  for  a committee  to  estimate  the  damages 
so  done ; and  such  proceedings  shall  be  had,  that  a committee 
should  be  appointed  to  estimate  the  damages  and  make  return 
thereof  to  the  next  Court  of  General  Sessions  of  the  Peace,  and 
that  execution  should  issue  thereon  with  a right  of  appeal  to  a 
jury  for  an  increase  of  said  damages. 

And  the  jury  or  committee,  as  the  case  might  be,  were  empowered 
to  give  either  a sum  in  gross  for  damages,  or  annual  damages  dur- 
ing the  continuance  of  said  damage,  and  the  party  injured  was  to 
have  judgment  and  execution  thereon. 

And  it  was  also  further  enacted  that  the  proprietors  were  author- 
ized and  empowered  to  purchase  and  hold  to  themselves  and  their 
successors  forever,  so  much  land  and  real  estate  as  may  he  necessary 
for  the  purpose  aforesaid,  not  exceeding  the  value  of  £5,000; 
“ provided  that  no  water-course  shall  be  turned  or  altered,  where 
any  mill  is  erected,  so  as  to  injure  such  mill,  without  license  there- 
for first  had  and  obtained  from  the  General  Sessions  of  the  Peace 
in  the  county  through  which  said  water-course  may  pass.  And 
that  the  said  Court,  on  application  made  to  it  by  said  proprietors, 
shall  observe  the  same  rules  as  are  now  prescribed  by  law  when 
application  is  made  to  them  for  granting  a public  highway.” 

And  the  defendants  further  say  that  by  an  act  in  addition  to  the 
act  above  referred  to,  passed  on  the  28th  day  of  February  in  the 
year  1795,  it  was  enacted  that  “the  property  of  said  proprietors 
in  said  canal,  and  in  any  other  canal  connected  therewith  which 
they  shall  effect  pursuant  to  the  authority  of  the  government,  and 
all  real  estate  of  said  corporation  of  which  the  said  corporation 
shall  be  seized,  shall  be  divided  into  eight  hundred  shares,”  which 
were  to  be  personal  property  for  certain  purposes ; and  it  was 
further  therein  enacted  by  the  second  section  of  said  act  “ that 
said  corporation  shall  have  power  to  receive  and  hold  real  estate 
as  appendant  to  said  canal,  and  for  the  purpose  of  facilitating  its 
business,  to  the  sum  of  £30,000,  over  and  above  the  value  of  the 
canal  itself,  simply  considered  ;”  and  they  were  further  empowered 


Answer. 


357 


to  make  the  waters  of  the  Concord  river  boatable  as  far  as  Sud- 
bury causeway,  and  as  much  further  as  the  same  can  be  usefully 
improved  for  that  end  ; and  to  open  any  canal  at  any  place  in  said 
County  of  Middlesex  that  may  be  necessary  to  connect  the  Con- 
cord river  with  said  canal  for  that  purpose,  and  that  the  proprietors 
shall  be  liable  to  have  damages  recovered  against  them  by  any 
individual  who  shall  be  injured  or  damnified  in  his  property  in  such 
new  canal,  by  the  same  mode  of  process  and  in  the  same  manner 
as  is  in  the  same  act  piovided. 

And  said  defendants,  further  answering,  say  that  under  said  act 
of  incorporation,  surveys  being  made,  it  was  found  that  it  was  im- 
possible, without  great  and  inordinate  expense,  to  take  the  waters 
of  the  Merrimack  river  through  a canal  to  unite  with  the  waters 
of  the  Medford  river  near  Boston,  because  it  appeared  that  the 
waters  of  said  Merrimack  river,  at  a point  where  they  were  to 
come  into  said  canal,  were  some  twenty  or  more  feet  lower  than 
the  waters  of  the  Concord  river  at  said  Billerica,  at  the  point  where 
the  said  canal  must  pass  the  same. 

And  the  defendants,  further  answering,  say  that  by  an  act,  in 
addition  to  the  several  acts  respecting  the  proprietors  of  the 
Middlesex  Canal,  passed  June  25,  1798,  it  appears  that  “ whereas 
by  an  act  passed  February  28th,  1795,  it  is  provided  and  enacted 
that  the  corporation  of  the  said  Middlesex  Canal  shall  be  em- 
powered to  hold  real  estate,  as  appendant  to  said  canal,  for  the 
purpose  of  facilitating  the  business  of  the  same  to  the  value  of 
£30,000  over  and  above  the  value  of  the  canal  itself.  And  the 
proprietors  of  said  canal,  having  expressed  their  doubts  whether 
in  virtue  of  said  act  they  may  erect  and  hold  mills  on  the  same 
canal,  and  on  the  waters  with  which  it  is  or  shall  be  connected ; it 
is  enacted  that  the  corporation  of  the  Middlesex  Canal,  or  the  pro- 
prietors of  said  canal,  in  their  corporate  capacity,  shall  be  em- 
powered to  purchase  and  hold  any  mill-seats  on  the  waters  con- 
nected with  the  same  canal,  and  lands  to  accommodate  the  same, 
and  thereon  to  erect  mills.” 

And  the  defendants,  further  answering,  say  that  by  an  act,  in 
addition  to  the  several  acts  passed  respecting  the  Middlesex  Canal, 
passed  January  26,  1800,  it  is  recited  “ that  the  proprietors  of  the 
canal  have  in  their  petition  set  forth  that  from  a reservation  in  the 
acts  already  passed  in  their  favor,  the  government  has  a right  to 
regulate  the  toll  of  goods  carried  on  the  canal  anew  after  the 
expiration  of  forty  years,  from  which  provisions  great  discourage- 
ments and  embarrassments  have  resulted  in  the  execution  of  that 
project ; therefore  be  it  enacted  that  a toll  of  one-sixteenth  part  of 
a dollar  for  each  ton  carried  one  mile  on  the  same  canal  be  estab- 
lished for  said  proprietors  and  their  successors  forever.” 

And  that  afterwards,  by  an  act,  in  addition  to  the  acts  incor- 
porating the  proprietors  of  the  Middlesex  Canal,  passed  March  2, 
1803,  said  proprietors  were  allowed  the  term  of  three  years  from 
and  after  the  22d  day  of  June  the  next,  to  complete  the  same 
canal  to  Charles  river,  and  to  effectuate  means  of  communication 
between  said  canal  and  the  town  of  Boston  across  said  Charles 
river  by  boats,  and  were  allowed  the  further  term  of  six  years  to 


358 


Charles  P.  Talbot,  et  al. 


render  Concord  river  boatableand  navigable,  and  for  cutting  their 
canals  in  the  County  of  Middlesex. 

And  the  defendants,  further  answering,  say  that  in  1798,  after 
the  passage  of  said  act  of  that  year,  the  proprietors  of  the  Middle- 
sex Canal  purchased  said  mill  privileges  on  the  Concord  river  at 
Billerica,  and  erected  a dam  for  the  purpose  of  raising  a head  of 
water  to  supply  their  canal,  using  the  surplus  to  operate  their 
mills,  the  grist-mill  formerly  on  said  stream  having  the  first  right ; 
that  in  1804  they  completed  their  canal  from  Merrimack  river  to 
Charles  river,  and  opened  it  for  public  navigation,  taking  toll 
therefor,  using  the  head  of  water  so  raised  in  Concord  river  to 
feed  their  canal,  and  the  surplus,  whenever  any  there  was,  to  run 
their  said  mills. 

And  the  defendants,  further  answering,  say  that  in  1826,  find- 
ing their  dam  insufficient  to  raise  the  water  for  their  purposes, 
said  proprietors  built  a new  and  more  permanent  dam  in  connec- 
tion with  the  old  one,  which  is  the  dam  now  maintained  by  said 
petitioners. 

And  the  defendants,  further  answering,  say  that  from  the  }^ear 
1804  down  to  the  year  1851  the  proprietors  carried  on  their  canal, 
using  in  the  dry  season  all  the  water  of  the  river  for  keeping  up 
the  navigation  on  their  canal,  and  the  surplus  for  their  own  mills, 
the  canal  retaining  the  first  right  thereto,  and  the  same  proprietors 
claim  to  hold  and  have  the  right  to  use  all  the  water  of  said  river 
for  the  purposes  of  navigation,  and  the  rights  of  the  public  therein 
until  the  same  may  be  lawfully  discontinued  ; and  that  afterwards 
they  applied  for  leave  to  wind  up  their  affairs,  to  the  Supreme 
Judicial  Court  sitting  in  and  for  the  County  of  Suffolk,  which  leave 
was  refused  and  their  petition  dismissed,  and  all  said  water  is  still 
held  for  a public  use. 

And  the  defendants,  further  answering,  say  that  all  the  water  of 
the  Concord  river,  including  that  of  Sudbury  river,  was  taken, 
held,  and  appropriated  forever  to  the  public  use ; to  wit,  to  be 
diverted  from  said  Concord  river,  and  was  so  diverted  into  Charles 
river,  and  the  Merrimack  river,  to  furnish  means  of  navigation  in  a 
public  canal,  opening  above  said  dam,  and  that  damages  were  paid 
for  such  public  use  of  said  water,  to  all  persons  having  any  right 
therein,  and  injured  by  such  diversion. 

And  the  defendants,  further  answering,  say  that  the  proprietors 
of  said  Middlesex  canal  had  not,  under  their  charter  and  the  several 
acts  in  addition  thereto,  any  right  or  power  to  sell,  convey  or 
assign  any  right  to  any  person  whomsoever,  to  use  said  water  as 
against  any  other  public  use  of  the  same,  which  taking  of  said 
water  by  the  City  of  Boston  is  for  a public  use. 

And  the  defendants,  further  answering,  say  that  said  Middlesex 
Canal  only  took  by  purchase  or  otherwise  the  lands,  waters  and 
water-power  incident  and  appertaining  thereto  and  connected  there- 
with to  “ themselves  and  their  successors  for  a public  use  forever,” 
as  a public  corporation,  and  not  with  power  to  assign,  sell,  hold  or 
make  profit  out  of  the  same  after  they  had  ceased  to  exercise  their 
rights  for  a public  use  under  their  charter,  or  surrendered  their 
charter,  and  that  said  mill  privileges  and  all  rights  purchased  by 


Opening  Argument  for  Petitioners. 


359 


them  became  and  were  real  estate  or  property  of  the  shareholders 
of  said  canal,  except  in  so  far  only  as  the  several  shares  became 
personal  property  for  certain  purposes  set  forth  in  said  acts,  and 
are  now  the  property  of  said  shareholders  if  the  said  real  estate 
has  not  reverted  to  its  original  owners. 

And  said  defendants,  further  answering,  say  that  said  petition- 
ers have  no  other  or  different  rights  in  said  water-power  than  those 
which  the  proprietors  of  said  Middlesex  Canal  have,  or  which  said 
proprietors  have  lost  through  the  forfeiture  of  their  charter,  if  the 
same  is  forfeited,  or  may  be  forfeited,  for  non-use. 

Wherefore  the  defendants  ask  to  be  dismissed  of  this  petition, 
and  go  thereof  without  day,  and  for  their  reasonable  costs  in  this 
behalf  sustained. 

BENJ.  F.  BUTLER, 

Attorney  and  of  Counsel  for  the  City  of  Boston, 

Filed  Feb.  10,  1876. 

OPENING  ARGUMENT  OF  MR.  SOMERBY  FOR 
THE  PETITIONERS. 

This,  may  it  please  your  Honors,  is  the  petition  of  the 
Messrs.  Talbot  for  water  which  they  say  has  been  diverted  by 
the  City  of  Boston  at  the  dam  at  their  place,  in  Framingham. 
And  I suppose  there  can  be  no  doubt  that  the  dam  that  the 
petitioners  now  occupy  is  the  one  formerly  occupied  by  the 
Middlesex  Canal,  — a deed  having  been  made  to  it  from  the 
corporation  (which  will  be  read  by  and  by) , in  the  year  1851. 
I suppose  it  is  equally  plain  also,  from  the  answer  which  I 
have  read,  and  without  attempting  to  construe  it,  that  the 
Middlesex  Canal,  as  a corporation,  had  a right  to  take  what 
was  given  it  by  the  Legislature,  and  to  own  and  hold  more 
or  less  mill-power  and  land ; and  perhaps  this  would  not  be 
disputed  by  the  other  side. 

The  counsel  for  the  City  of  Boston  claim  that  the  Middle- 
sex Canal  held  it  only  as  appurtenant,  and  therefore  that  they 
cannot  hold  it  in  fee,  so  as  to  convey,  sell  or  assign  it. 

The  title  which  we  claim  to  this  dam  (because  the  title 
here  is  disputed)  came  originally  in  1708,  from  the  town  of 
Billerica,  to  one  Christopher  Osgood,  subject,  however,  to 
the  right  on  the  part  of  the  town  of  Billerica  and  the  liabiliy 
on  the  part  of  Mr.  Osgood  to  grind  the  corn  for  the  inhabi- 
tants of  Billerica.  That  right,  afterwards,  either  directly  or 
through  mesne  conveyances,  was  sold  to  one  Richardson,  and 
afterward  purchased,  by  authority  of  the  act  of  the  Legisla- 
ture which  I have  mentioned,  by  the  Middlesex  Canal  in  1794, 
or  whenever  purchased.  That  act  was  substantially  confirmed 
by  the  Legislature,  so  that  the  petitioners  own  it  as  Richard- 
son did,  also  subject  to  the  right  as  before ; for  this  right 
continued  until  it  was  finally  extinguished  (as  I will  mention 


360 


Chakles  P.  Talbot,  et  al. 


by  and  by) , to  grind  corn  for  the  inhabitants  of  Billerica. 
The  Middlesex  Canal  did,  I suppose,  use  the  water  to  some 
extent,  or  perhaps  to  a very  large  extent,  for  the  purpose  of 
filling  their  canal ; and  they  made  this  conveyance  in  1851, 
subject,  so  far  as  the  Middlesex  Canal  was  concerned,  merely 
to  the  right  of  using  the  water  for  purposes  of  navigation. 
Every  other  right,  I think  it  will  be  found  by  the  deed,  was 
conveyed  to  the  Messrs.  Talbot,  the  petitioners,  and  from 
that  time  to  this  they  have  been  in  entire  possession  of  the 
land  undisturbed,  claiming  under  this  deed,  paying  the  taxes, 
using  the  property,  — having  all  the  apparent  rights  of  own- 
ership that  anybody  could  have,  to  land,  water-power  and 
water-privileges . 

The  Middlesex  Canal,  prior  to  their  conveyance  in  1851  to 
Messrs.  Talbot,  the  petitioners,  had  made  several,  or  two  or 
three,  more  or  less,  sub-grants  of  water-power,  but  always 
subject  to  the  conditions,  first  of  grinding  this  grain  for  the 
inhabitants  of  Billerica,  and  second,  subject  to  the  use  of  the 
Middlesex  Canal.  Those  rights,  or  sub-rights,  were  after- 
wards extinguished  by  a conveyance  from  them  in  1857,  or 
some  time  near  that,  to  Messrs.  Talbot,  the  petitioners. 
And,  after  this  also,  the  town  of  Billerica,  by  a vote,  re- 
leased the  right  on  the  part  of  the  Messrs.  Talbot  for  the  lia- 
bility to  grind  this  corn.  So  that  our  general  claim  is  that 
when  the  City  of  Boston  took  this  water,  in  1872,  they  took 
it  from  parties  who  had  been  in  possession  more  than  the 
legal  time  to  obtain  the  title  by  prescription ; that  they  were 
in  possession,  claiming  by  a deed ; that  they  were  in  posses- 
sion by  deed  directly  from  the  Middlesex  Canal,  who  we  claim 
had  a right  to  give  it ; and  that  every  other  right  which  was 
outstanding  had  been  cancelled  or  annulled  by  the  conveyance 
of  the  several  parties  to  the  petitioners.  In  1857,  — perhaps 
I should  say  in  order  for  a proper  understanding  of  it,  — for 
although  we  try  the  cases  separately,  they  are  so  intimately 
blended  that  in  stating  one  I shall  have  to  state  the  other, 
to  a certain  extent,  — in  1857,  the  title  being,  as  I have  men- 
tioned, in  the  Talbots,  they  at  that  time  granted  the  right  to 
the  Faulkners  (who  are  also  petitioners  here),  and  that  right 
your  Honors  will  have  to  understand,  which  I think  is  this  : 
A bolt  which  was  shown  the  commissioners  was  the  exact 
height  of  the  dam.  The  water  was  divided  in  this  way,  — 
when  the  water  was  above  the  bolt  and  when  it  was  below 
the  bolt,  or  J of  an  inch  below  the  bolt  (not  to  say  ex- 
actly),— which  would  be,  of  course,  | of  an  inch  below 
the  top  of  the  dam,  strictly  speaking,  the  flash-boards  of 
the  dam.  Before  the  water  got  down  to  J of  an  inch  be- 
low the  top  of  the  bolt  the  Messrs.  Talbot  had  a right  to 
draw  whatever  they  pleased,  — such  water  as  they  could  use 


Opening  Argument  for  Petitioners. 


361 


in  their  mill.  And  the  Faulkners,  by  the  grant  I have  men- 
tioned, had  a right  to  draw  57t3q  cubic  feet  per  second  until 
the  water  had  arrived  at  the  point  -J  of  an  inch  below  the 
bolt.  When  it  arrived  at  that  point  the  Faulkners’  right 
ceased.  W hilst  the  water  was  above  the  point  | of  an  inch 
below  the  bolt,  the  Faulkners  had  the  right  to  draw  57i3g- 
cubic  feet  per  second,  the  Talbots  had  an  unlimited  right,  — 
that  is  to  say,  to  draw  all  that  their  works  needed.  When  the 
water  got  to  that  point  the  Faulkners’  right  ceased  ; and  the 
Messrs.  Talbots’  right  was  limited  to  about  434  cubic  feet  per 
second,  or  very  nearly  that ; that  being  the  amount,  as  we 
estimate,  or  as  we  have  ascertained  as  well  as  we  might, 
which  could  pass  through  certain  gates  of  a given  dimen- 
sion, which  are  set  forth  in  the  deposition,  which  we  shall 
refer  to  and  read.  That,  of  course,  will  be  a matter  of  com- 
putation, but  I only  make  that  as  a general  statement. 

So  that  we  claim  that  this  right  of  the  Messrs.  Talbot,  sub- 
ject to  the  right  of  the  Faulkners,  as  I have  stated,  would  be 
substantially  this  : that  for  the  dry  part  of  the  year  — call 
it  the  summer  months  — Messrs.  Talbot  would  have  water 
sufficient  to  drive  the  woollen  mill  which  you  see  there, 
which  would  be  equal  to  about  200  horse-power  substan- 
tially, we  say,  all  the  time.  And  I believe  that  is  so,  with  the 
exception  of  once  or  twice  in  the  exceptionally  dry  winter 
of  1875.  1 believe  then  they  had  to  stop  for  a very  short 

time  ; but  "substantially ,”  it  might  be  fairly  said  ; — and  of 
course  we  have  got  to  look  at  things  for  all  time,  for  they 
have  got  to  be  settled  once  for  all  time  ; — substantially,  you 
might  as  well  say,  that  they  have  water-power  enough,  so 
as  to  carry  the  flannel-mill  actually  during  any  part  of  the 
year.  And  not  only  that,  but  in  the  night  also,  they  had 
sufficient  power,  so  that  to  a very  considerable  extent  they 
could  use  their  mills  for  cutting  up  dye-wood.  They  could 
do  so  to  an  extent,  so  that  the  pond  could  All  up  by  morning, 
and  be  ready  to  afford  the  supply  again  for  the  day.  That 
would  be  a fair  measure,  as  we  say,  of  what  the  Faulkners 
and  the  Talbots  would  have  in  the  summer.  That  is  the 
measure  of  what  we  say  the  Talbots  are  entitled  to.  And 
now  the  question  would  come,  How  much  have  the  city  taken 
from  that?  How  much  have  they  diminished  it?  Well,  of 
course,  it  could  not  be  ascertained  to  a drop,  nor  ascertained 
specitically  or  exactly,  and  none  of  these  things  are,  on  the 
one  side  or  the  other.  But  we  claim  that  we  can  get  to  it 
substantially  ; and  we  say  that  by  taking  the  water-shed  that 
has  been  put  in  in  the  Essex  Company’s  case,  and  which 
would  include,  of  course,  all  on  this  branch  of  the  river  to  its 
source,  that  if  we  take  from  that  sum  the  amount  of  water- 


362 


Charles  P.  Talbot,  et  al. 


shed  between  the  dam  of  the  Messrs.  Talbot  and  the  Wame- 
sit  dam,  it  would  leave  us  the  power  from  a water-shed  of 
346  square  miles  in  all,  and  that  is  what  we  say  would  be 
the  efficient  power  (whatever  it  may  be)  of  the  Talbots’ 
dam.  Of  course  there  will  be  no  substantial  dispute  about 
there  being  eleven  feet  of  fall  there.  That  is  what  our  claim 
is,  — 346  square  miles  in  all,  — of  the  water-shed  at  the 
Talbot  dam.  You  see,  then,  that  what  the  city  have  taken  is 
equivalent  to  72  square  miles,  or  substantially  to  one-fifth 
of  that  water-shed ; and  in  that  calculation  we  make  it 
against  ourselves  if  we  allow  that  fraction,  because  it  is 
proved  (and  I think  the  fact  will  be  so  taken  by  your 
Honors)  that  if  the  72  miles  of  water-shed  is  compared  with 
the  otjier  water-shed,  it  is  more  productive.  But  call  it  all 
alike,  as  we  do  in  our  calculation.  The  question  then  is  (if 
we  are  right  about  it),  " What  shall  be  allowed  in  money  to 
maintain  at  the  Talbot  dam  a water-power  which  would  come 
from  a water-shed  of  7 2 square  miles  ? And  in  this  calcula- 
tion, of  course,  we  say,  as  was  argued  here  by  the  learned 
counsel  for  the  Essex  Company  this  morning,  that  the  City 
of  Boston,  whether  they  take  it  or  not,  have  the  right  to  take 
all  the  water ; and  whether  they  take  it  now  or  whenever 
they  shall  take  it  is  of  no  consequence,  the  damage  is  to  be 
settled  now.  And,  as  it  is  very  plain  to  see,  as  all  the 
water  is  given  them  by  the  Act  of  the  Legislature,  and  as 
they  have  the  control  of  the  Cochituate  reservoir  and  lake, 
and  also  of  the  Chestnut  Hill  reservoir,  it  is  a matter  of  no 
importance  to  talk  about  whether  the  water  runs  over  Co- 
chituate dam  or  not  — for  it  can  run  over  or  not,  just  as 
they  say  — and  all  they  have  got  to  do  is  to  use  one  or  the 
other,  as  they  please.  So  we  claim  that  they  are  looking  for- 
ward, not  merely  as  to  how  they  may  use  it  to-day,  or  how  they 
may  use  it  twenty  years,  or  fifty  years,  or  even  a hundred 
years  hence,  but  how  they  may  forever  use  it.  And  as  all 
the  water  is  given  them,  and  we  can  have  our  damages  but 
once,  that  we  are  deprived  absolutely  of  this  water-shed. 
Now,  then,  we  claim  that  this  water-shed  would  supply 
(and  of  course  we  have  got  to  get  at  that  as  well  as  we 
may,  but  we  take  it  for  a series  of  years),  what  is  equiva- 
lent at  this  dam,  of  eleven  feet,  to  100  or  125  horse-power, 
and  that  that  would  have  to  be  sustained  probably  for  as 
much  as  six  months  of  the  year.  In  other  words,  if  a 
steam-engine  were  put  in  there,  built  by  the  city,  and  put  in 
to  run  forever  and  kept  in  constant  use,  according  to  the 
way  that  mills  are  worked,  we  claim  that  that  would  only 
make  them  whole,  and  they  would  be  no  better  off  than 
they  are  to-day  without  it. 


Deed. 


363 


That  is  our  claim.  Of  course,  to  get  at  that,  we  have  to 
take  as  the  elements  the  height  of  the  dam,  the  probable 
yield  of  the  water-shed,  the  length  of  time,  the  diminution  of 
the  water,  and  of  course  the  cost  and  expense  that  it  would 
take  to  sustain  the  engine.  Alt  that  will  be  a matter  of  proof 
and  a matter  of  argument,  which  I shall  come  to  by  and  by. 
Of  course  the  matter  of  the  working  out  of  this  calculation 
will  be  left  to  the  proof,  and  to  the  remarks  of  the  senior 
counsel.  All  I wish  to  state  is  the  propositions,  that  they 
may  be  understood  before  we  go  forward. 

[. Recess  till  1J  o'clock,  P.  M.~\ 


AFTERNOON  SESSION. 

Mr.  Abbott.  I put  in  in  the  first  place  (which  Gen.  But- 
ler agrees  may  be  put  in  without  calling  the  surveyor,  Mr. 
Worcester,  who  was  a witness  before),  a certificate  in  refer- 
ence to  the  survey  of  the  water-shed  at  Billerica.  The  area 
is  346  square  miles. 

Then  we  put  in  a deed  from  the  proprietors  of  the  Middle- 
sex Canal,  dated  the  22d  day  of  September,  1851,  acknowl- 
edged on  the  13th  day  of  October,  1851,  and  recorded 
October  23d,  1851. 

[Middlesex  Deeds,  Book  618,  p.  97.] 

MIDDLESEX  CANAL  COMPANY  TO  C.  P.  TALBOT  & CO. 

Know  all  men  by  these  presents , That  the  Proprietors  of  the 
Middlesex  Canal,  a Corporation  established  by  authority  of  the 
Commonwealth  of  Massachusetts,  in  consideration  of  Twenty  Thou- 
sand Dollars  paid  b}r  Charles  P.  Talbot,  of  Lowell,  and  Thomas 
Talbot,  of  Billerica,  in  the  County  of  Middlesex  and  Commonwealth 
of  Massachusetts,  Manufacturers  and  Copartners,  the  receipt  where- 
of is  hereby  acknowledged,  do  hereby'  bargain,  sell,  remise,  release, 
and  forever  quit  claim  unto  said  Charles  P.  and  Thomas  Talbot, 
their  heirs  and  assigns,  eleven  pieces  or  parcels  of  land  lying  in  the 
town  of  Billerica,  in  said  County  and  Commonwealth,  subject,  how- 
ever, to  the  use  hereinafter  mentioned,  as  follows,  viz. : The  first  piece 
or  parcel  of  land  lies  in  the  town  of  Billerica,  and  begins  at  the 
southeast  corner  of  the  Bridge  over  the  Canal,  at  the  abutment,  and 
runs  a southerly  course  one  hundred  and  seventy-two  feet,  more  or 
less,  to  the  northeast  corner  of  Joel  Dix’s  land  ; thence  southerly 
again,  a little  more  easterly,  by  land  of  said  Dix,  one  hundred  and 
sixty-two  feet,  more  or  less,  to  a stake  ; thence  the  line  turns  nearly 
a right  angle  and  runs  an  easterly  course  by  the  stone  wall  eighty- 
seven  feet,  more  or  less,  to  the  Cuncord  river ; thence  a northerly 
course  by  the  river,  thirty  feet,  more  or  less,  to  a stake  ; thence  the 
line  turns  and  runs  a northeasterly  course,  by  said  river,  one 
hundred  and  nineteen  feet,  more  or  less,  to  a bend  in  the  riverr ; 


364 


Charles  P.  Talbot,  et  al. 


thence  the  line  runs  a northerly  course  one  hundred  and  twenty-one 
feet,  more  or  less,  the  river,  to  the  northeast  corner  of  a wooden 
store-house»or  building ; thence  northerly  by  the  river,  on  rather  of 
a curved  line  to  the  northerly  side  of  the  towing  path  or  floating 
bridge  one  hundred  feet,  more  or  less  ; thence  a westerly  course  one 
hundred  and  thirty-eight  feet,  more  or  less,  to  the  bound  of  begin- 
ning, containing  by  estimation  forty-eight  thousand  feet,  more  or 
less ; reference  to  be  had  to  a plan  drawn  b}r  R.  H.  Eddy,  dated 
September  12,  1850,  and  hereto  annexed,  and  herewith  to  be  re- 
corded ; the  lot  above  described  is  marked  A on  said  plan,  and 
with  all  the  rights  and  privileges  to  the  said  lot  of  land  belonging, 
and  likewise  all  the  rights  of  the  Proprietors  of  the  Middlesex 
Canal,  now  hold  in  a piece  of  common  land  which  lies  in  front  of 
the  estates  of  Joel  Dix  and  Daniel  Wilson,  and  others,  according 
to  a deed  of  the  Proprietors  of  the  Canal  to  Jonathan  Farmer, 
dated  August  1st,  1855,  recorded  in  Middlesex  Registry,  Book  240, 
Page  336. 

The  second  piece  or  parcel  of  land  lies  in  the  town  of  Billerica,  • 
is  bounded  and  described  as  follows,  viz.  : Beginning  at  the  same 
place  as  the  last  described  piece  at  the  southeast  corner  of  the 
Canal  bridge,  and  from  thence  the  line  runs  by  the  northerly  side 
of  the  towing-path,  on  the  southerly  side  of  the  canal,  an  easterly 
course,  one  hundred  and  thirty-eight  feet,  more  or  less ; thence  the 
line  turns  and  runs  a northwesterly  course,  crossing  the  canal, 
seventy  feet,  more  or  less,  to  the  most  easterly  point  in  the  wharf 
by  Concord  river ; thence  the  line  runs  a northwesterly  course  by 
said  river,  and  by  said  wharf,  eighty-eight  feet,  more  or  less,  to  a 
point  which  is  one  hundred  and  thirtj^feet  from  the  point  of  begin- 
ning ; thence  the  line  turns  and  runs  a southerly  course  by  the 
roadwa}7,  one  hundred  and  thirty  feet,  more  or  less,  to  the  bound 
of  beginning.  The  above  described  piece  or  parcel  of  land  is 
marked  B on  a plan  drawn  by  R.  H.  Eddy,  dated  September  12, 
1850,  to  which  reference  may  be  had ; the  said  lot  of  land  con- 
tains, by  estimation,  nine  thousand  six  hundred  and  thirteen  feet, 
more  or  less. 

The  third  piece  or  parcel  of  land  lies  in  the  town  of  Billerica,  and 
is  bounded  and  described  as  follows,  viz. : Beginning  at  the  south- 
west corner  of  the  Bridge  over  Concord  River,  near  the  Milldam, 
and  from  thence  the  line  runs  a westerty  course  by  the  river,  one 
hundred  and  eight  feet,  more  or  less ; thence  the  line  curves  and 
runs  b)r  said  River  thirt}7-four  feet,  more  or  less ; thence  the  line 
runs  a southerly  course  by  said  River  to  the  southwesterly  corner 
of  the  saw  mill,  or  to  the  stone  wall,  one  hundred  and  twenty-five 
feet,  more  or  less ; from  thence  the  line  turns  at  nearly  a right 
angle,  and  runs  a westerly  course  by  a stone  w&ll,  and  by  said 
Concord  River,  one  hundred  and  seventy-two  feet,  more  or  less ; 
thence  the  line  turns  at  nearly  a right  angle  and  runs  a southerly 
course  by  said  river  and  stone  wall  seventy-two  feet,  more  or  less, 
to  the  northeast  corner  of  the  Dye  House  and  Canal  waste-way ; 
thence  the  line  turns  at  nearly  a right  angle  and  runs  a westerly 
course  by  said  river  and  bank  of  the  canal,  on  hundred  and  ninety 
feet,  more  or  less,  to  a stake  and  stones  ; thence  the  line  turns  at 


Deed. 


365 


nearly  a right  angle  and  runs  a southerly  or  southeasterly  course, 
crossing  the  canal,  and  partly  by  land  of  John  Mixer,  two  hundred 
and  sixteen  feet,  more  or  less,  to  the  county  road  leading  to  the 
mills  ; from  thence  the  line  turns  at  nearly  a right  angle  and  runs 
an  easterly  course  by  said  county  road,  two  hundred  and  seventy 
feet,  more  or  less,  to  a post  driven  in  the  ground  at  a curve  in  the 
road  ; from  thence  the  line  runs  a northeasterly  course,  one  hun- 
dred and  five  feet  to  a stake  near  the  southwesterly  corner  of  the 
bridge  over  the  canal ; from  thence  the  line  runs  a more  northerly 
course  by  the  canal  bridge  and  county  road  one  hundred  and  twenty- 
eight  feet,  more  or  less,  to  the  southeasterly  corner  of  the  mill- 
bason  ; from  thence  the  line  runs  a northerly  course,  through  said 
bason,  by  the  bridge  and  county  road,  one  hundred  and  forty-five 
feet,  more  or  less,  to  the  bound  of  beginning.  The  above  de- 
scribed piece  or  parcel  of  land  is  marked  C on  a plan  drawn  by  R. 
H.  Eddy,  dated  September  12,  1850,  and  contains,  by  estimation, 
ninety-eight  thousand  four  hundred  and  thirty-six  square  feet,  more 
or  less,  with  all  the  buildings  thereon  standing. 

The  fourth  piece  or  parcel  of  land  lies  in  the  town  of  Billerica, 
and  is  bounded  and  described  as  follows,  viz.  : Beginning  at  the 

northeast  corner  of  the  land  sold  by  the  proprietors  of  the  Middle- 
sex Canal  to  John  Mixer,  of  Billerica,  and  near  the  northwest 
corner  of  the  barn  on  the  last  described  lot  of  land  ; from  thence 
the  line  runs  a northerly  conrse,  crossing  the  canal,  ninety-two 
feet,  more  or  less,  to  the  Concord  river ; thence  the  line  turns  and 
runs  a westerly  course  by  said  river,  two  hundred  and  ten  feet, 
more  or  less ; thence  the  line  turns  and  runs  a southerly  course, 
crossing  the  canal,  one  hundred  feet,  more  or  less,  to  the  northwest 
corner  of  land  the  proprietors  of  the  Middlesex  canal  sold  John 
Mixer ; from  thence  the  line  turns  and  runs  an  easterly  course, 
two  hundred  and  five  feet  by  the  southerly  side  of  the 
towing  path  to  the  bound  of  beginning.  This  last  described  piece 
or  parcel  of  land  is  marked  D on  a plan  drawn  by  R.  H.  Eddy, 
dated  September  12,  1850,  and  contains,  b}r  estimation,  eighteen 
thousand  five  hundred  and  eighty-four  feet,  more  or  less. 

The  fifth  piece  or  parcel  of  land  lies  in  the  town  of  Billerica,  and 
is  bounded  and  described  as  follows,  viz. : Beginning  at  the  north- 
west corner  of  the  last  described  piece  or  parcel  of  land,  by  the 
Concord  river,  and  running  a west-northwesterly  course  by  said 
river  one  hundred  and  fifty-two  feet,  more  or  less  ; passing  by  the 
guard-gates,  from  thence  the  line  turns  and  runs  a southerly  course, 
crossing  the  canal,  one  hundred  and  thirteen  feet,  more  or  less,  to 
the  northwesterly  corner  of  a piece  of  land  the  Proprietors  of  the 
Middlesex  Canal  sold  to  Israel  Colson  ; from  thence  the  line  turns 
and  runs  an  easterly  course,  or  southeasterly  course,  by  land  of  said 
Colson,  one  hundred  and  forty-eight  feet,  to  a stake  at  the  north- 
westerly corner  of  land  of  John  Mixer  ; from  thence  the  line  turns 
and  runs  a northerly  course,  crossing  the  canal,  one  hundred  feet, 
more  or  less,  to  the  Concoid  river,  the  bound  of  beginning.  The 
l^st  described  piece  or  parcel  of  land  is  marked  E on  a plan  drawn 
by  R.  H.  Eddy,  dated  September  12,  1850,  and  contains  by 


366  Charles  P.  Talbot,  et  al. 

estimation,  thirteen  thousand  three  hundred  and  seventy  feet,  more 
or  less. 

The  sixth  piece  or  parcel  of  land  lies  in  the  town  of  Billerica, 
and  is  bounded  and  described  as  follows,  viz.  : Beginning  b}'  Jhe 
county  road  leading  to  the  mills,  at  the  southwest  corner  of  land 
the  proprietors  of  the  Middlesex  Canal  sold  to  Israel  Colson,  and 
partly  by  the  last  described  piece  of  land,  three  hundred  and  fifty- 
three  feet,  more  or  less,  crossing  the  canal  to  the  Concord  river ; 
from  thence  the  line  turns  and  runs  by  the  Concord  river,  at  the 
foot  of  the  canal  bank,  two  hundred  and  fifteen  feet,  more  or  less, 
to  a stake  by  the  southerly  side  of  said  river  ; thence  the  line  runs 
a little  more  northerly,  by  said  river,  one  hundred  feet,  more  or 
less,  to  a stake  by  the  southerly  side  of  said  river ; thence  the  line 
is  somewhat  curved,  and  runs  % said  river  one  hundred  and  five 
feet,  more  or  less,  to  the  northern  or  lower  end  of  the  canal  lock 
at  said  river  ; thence  the  line  runs  a westerty  course  by  the  north- 
easterly end  of  said  canal  lock,  seventeen  feet,  more  or  less,  to  the 
westerly  side  of  said  lock  ; from  thence  the  line  runs  a northeasterly 
course,  by  the  Concord  river,  ninety  feet,  more  or  less  ; from  thence 
the  line  turns  and  runs  a westerly  course,  one  hundred  and  fifteen 
feet,  more  or  less,  to  the  private  roadway  of  the  late  Farmer ; from 
thence  the  line  turns  at  nearly  a right  angle  and  runs  a southerly 
course  by  said  private  roadway,  crossing  the  canal,  to  a point  near 
the  southeasterly  end  of  Farmer’s  Bridge,  two  hundred  and  fifty- 
two  feet,  more  or  less ; from  thence  the  line  runs  south  a little 
easterly  by  the  road,  eighty-six  feet,  more  or  less,  to  a private  way 
laid  out  overland  belonging  to  the  proprietors  of  the  Middlesex 
Canal ; from  thence  the  line  turns  and  runs  southeasterly,  by  said 
private  way,  five  hundred  and  eighty-seven  feet,  more  or  less,  to 
the  bound  of  beginning.  This  last  named  lot  of  land  is  laid  down 
on  a plan  drawn  by  R.  H.  Eddy,  dated  September  12,  1850,  and 
is  marked  on  said  plan  F,  and  contains  by  estimation,  one  hun- 
dred and  eighteen  thousand  three  hundred  and  sixty-three  feet, 
more  or  less. 

The  seventh  piece  or  parcel  of  land  lies  in  the  town  of  Billerica, 
and  is  bounded  and  described  as  follows,  viz.  : Beginning  at  a 

point  by  the  county  road  leading  to  the  mill,  just  fifty-one  feet 
westerly  of  the  southwesterly  corner  of  the  land  the  proprietors  of 
the  Middlesex  Canal  sold  to  Israel  Colson  ; and  from  thence  the 
line  runs  a westerly  course,  by  the  said  county  road,  three  hundred 
and  sixty-two  feet,  more  or  less,  to  a stake  and  stones  north- 
easterly from  said  Colson’s  house ; from  thence  the  line  curves  and 
runs  ninety  feet,  more  or  less,  to  a stake  and  stones  on  the  road 
leading  to  the  canal ; from  thence  the  line  runs  a northerly  course, 
three  hundred  and  forty-five  feet,  more  or  less,  to  the  private  way 
laid  out  by  the  proprietors  of  the  Middlesex  Canal ; from  thence 
the  line  turns  and  runs  by  said  private  way,  five  hundred  and 
twenty-three  feet,  more  or  less,  to  the  county  road  at  the  point  of 
beginning.  The  last  named  piece  or  parcel  of  land  is  marked  G 
on  a plan  drawn  by  R.  H.  Eddy,  dated  September  12,  1850,  aid 
contains,  by  estimation,  eighty-four  thousand  one  hundred  and 
thirteen  feet,  more  or  less.  * 


Deed. 


367 


The  eighth  piece  or  parcel  of  land  lies  in  the  town  of  Billerica, 
and  is  bounded  and  described  as  follows,  viz.  : Beginning  at  the 

southwesterly  corner  of  land  the  proprietors  of  the  Middlesex 
Canal  sold  to  Israel  Colson,  and  runs  a northwesterly  course  by  the 
private  waylaid  out  by  the  proprietors  of  the  Middlesex  Canal,  five 
hundred  and  eighty-seven  feet,  more  or  less,  to  the  road  leading  by 
Colson’s  house  to  the  canal ; from  thence,  the  line  turns  aud  runs 
a southerly  course,  fitfy-one  feet,  more  or  less,  by  the  last-named 
road ; thence,  the  line  turns  and  runs  southeasterly,  five  hundred 
and  twenty-three  feet,  more  or  less,  to  the  county  road  leading  to 
the  mills  ; thence,  by  said  county  road  fifty-one  feet,  more  or  less, 
to  the  bound  of  beginning.  The  last  named  piece  or  parcel  of 
land  is  laid  down  on  a plan  drawn  by  R.  H.  Eddy,  dated  Septem- 
ber 12,  1850,  is  marked  H on  said  plan,  and  contains  by  estima- 
tion, twenty-two  thousand  two  hundred  feet,  more  or  less. 

The  ninth  piece  or  parcel  of  land  lies  in  the  town  of  Billerica, 
and  is  bounded  and  described  as  follows  : Easterly  by  the  road 

near  William  Rogers’  house ; northerly  by  the  land  of  said  pro- 
prietors ; westerly  by  the  mill-pond,  so  called ; southerly  by  land 
formerly  of  Jonathan  Pollard,  an  elm  tree  standing  in  a line  of  the 
first-mentioned  bound,  containing  by  estimation,  one  acre,  more  or 
less,  with  the  buildings  thereon  standing ; and  for  a more  particu- 
lar description,  reference  is  to  be  had  to  the  deed  of  Jonathan 
Pollard,  to  the  proprietors  of  the  Middlesex  Canal,  dated  March 
25,  1795,  and  recorded  in  the  Middlesex  Registry,  Book  118, 
Page  213.  This  last  named  lot  is  marked  I,  on  a plan  drawn  by 
R.  H.  Eddy,  dated  September  8th,  1851. 

The  tenth  piece  or  parcel  of  land  lies  in  the  town  of  Billerica,  and 
is  bounded  and  described  as  follows,  viz. : Beginning  at  a stake  and 
stones  opposite  the  westerly  end  of  William  Rogers’  dwelling-house, 
on  the  westerly  side  of  the  road  which  leads  from  the  mills  to 
Billerica  Meeting-house,  just  five  rods  distant  from  the  wall  on  the 
north  side  of  the  trunk  of  the  canal,  as  now  stoned  up  from  said 
stake  and  stones,  the  line  runs  a northwesterly  course  by  land  of 
said  Rogers,  keeping  just  five  rods  distant  from  the  said  wall  on 
the  north  side  of  the  trunk  of  the  canal,  continuing  or  extending  into 
the  mill  pond  or  Concord  river  ; thence,  keeping  the  same  distance 
of  five  rods  from  the  canal  agreeably  to  the  course  thereof,  as  far 
westward  as  said  Rogers’  land  extended,  and  as  far  as  he  had  a 
right  to  sell  to  the  proprietors  of  the  said  canal ; thence  westerly 
by  said  Concord  river  until  it  comes  to  Jonathan  Pollard  land,  or 
land  which  he  sold  to  the  proprietors  of  the  canal ; then  the  line 
turns  and  runs  eastward ly  by  the  land  which  the  said  proprietors 
purchased  of  said  Pollard,  until  it  comes  to  the  road  before  men- 
tioned ; then  the  the  line  turns  and  runs  northerly  by  the  said  road 
to  the  bound  first  mentioned,  containing  by  estimation  one  and 
one-quarter  of  an  acre,  more  or  less.  And  for  a more  particular 
description  reference  may  had  be  had  to  the  deed  of  William  Rog- 
ers, dated  Dec.  21,  1779,  recorded  in  Middlesex  Registry,  Book 
143,  Page  118. 

The  eleventh  piece  or  parcel  of  land  lies  in  the  town  of  Billerica, 
and  is  bounded  and  described  as  follows,  viz. : Beginning  at  a 


368 


Charles  P.  Talbot,  et  al. 


stake  and  stones  by  the  easterly  side  of  road,  just  four  rods  from 
the  southwesterly  corner  of  William  Rogers’  dwelling-house,  from 
the  said  stake  and  stones  the  line  runs  an  easterly  course  by  land 
of  said  Rogers,  about  seventeen  rods  to  a stake  and  stones  which  is 
placed  just  ten  and  one-half  rods  from  the  centre  line  of  the 
Middlesex  Canal,  measuring  at  right  angles  from  the  said  centre 
line  ; thence  from  said  stake  and  stones  last  mentioned,  the  line 
turns  and  runs  a more  southeaster^  course  exactly  parallel  with 
the  said  centre  line,  and  just  ten  and  one-half  rods  distant  from  it, 
having  said  Rogers’  other  land  on  the  north  of  the  premises  until 
it  comes  to  the  Jonas  Saunders’  road,  so  called  ; then  the  line  turns 
and  runs  a southerly  course,  having  said  Jonas  Saunders’  road  on 
the  east,  croissng  the  canal  at  the  bridge  and  extending  southerly 
to  a stake  and  stones  ten  rods  from  said  centre  line  of  the  canal, 
measuring  at  right  angles  from  it ; from  thence  the  line  turns  and 
runs  northwesterly,  keeping  ten  rods  from  said  centre  line  of  the 
canal  to  a stake  and  stones  by  a pond-hole,  and  about  seventeen 
rods  to  a stake  and  stones  at  the  first  mentioned  road  ; from  thence 
the  line  turns  and  runs  a north-northeasterl}"  course  by  the  east 
side  of  said  road,  crossing  the  canal  to  the  bound  first  mentioned, 
wfith  all  the  privileges  and  appurtenances  to  the  premises  belong- 
ing, and  containing  b}^  estimation,  twenty  acres  and  five  rods. 
The  above  described  piece  or  parcel  of  land  was  purchased  of 
William  Rogers  by  his  deed,  dated  Dec.  21,  1799,  and  is  recorded 
in  the  Middlesex  Registiy,  Book  143,  Page  118,  to  which  reference 
may  be  h*ad  and  likewise  to  a plan  drawn  by  R.  H.  Eddy,  dated 
September  8th,  1851. 

And  whereas,  the  Middlesex  Canal  passes  over  and  through  each 
of  the  above-described  parcels  of  land,  the  same  are  hereby  con- 
veyed subject  expressly  to  the  reservation  of  all  easements  and 
services  necessary  for  or  incident  to  the  preservation  and  use  of 
said  canal,  for  the  purpose  of  navigation  and  of  all  rights 
of  the  public  therein,  until  the  same  shall  be  lawfully  discon- 
tinued. 

And  further,  the  said  proprietors  of  the  Middlesex  Canal  do 
hereby  bargain,  sell,  remise,  release  and  forever  quit  claim  to  the 
said  Charles  P.  Talbot  and  Thomas  Talbot,  their  heirs  and  assigns, 
all  the  right,  title,  interest  and  estate,  held  by  the  said  corporation 
under  the  deed  of  Thomas  Richardson,  dated  March  25,  1794,  re- 
corded in  the  Middlesex  Deeds,  Book  115,  Page  258,  in  and  to  the 
use  of  the  waters  of  Concord  river,  and  the  mill  privileges  thereto 
belonging,  subject  to  the  conditions  contained  in  said  deed,  and  to 
the  prior  grants  of  said  corporation  to  Francis  Faulkner,  by  deed 
dated  May  4th,  1825,  recorded  with  Middlesex  Deeds,  Book  260, 
Page  48;  and  to  Nathan  Mears,  b}7  deed  dated  March  15,  1826, 
recorded  with  Middlesex  Deeds,  Book  265,  Page  202,  and  subject 
also  to  the  conditions  hereinafter  set  forth. 

To  have  and  to  hold  the  above  released  premises  with  all  the 
privileges  and  appurtenances  excepting  as  aforesaid,  to  the  said 
Charles  P.  and  Thomas  Talbot,  their  heirs  and  assigns,  to  their 
sole  use  and  behoof  forever.  But  upon  the  express  condition  that 
the  said  grantees  shall  perform  all  the  duties  and  obligations 


Deed. 


369 


towards  the  town  of  Billerica,  which  the  said  grantors  are  bound 
to  perform  by  virtue  of  the  vote  of  the  inhabitants  of  said  town, 
referred  to  in  the  deed  of  said  Thomas  Richardson,  and  all  other 
conditions  set  forth  in  said  deed  ; and  also,  that  the  said  grantees 
shall  not,  whensoever  forbidden  so  to  do  by  said  corporation,  in 
writing  signed  by  their  agent,  and  until  said  canal  shall  be  lawfully 
discontifiued,  draw  the  waters  of  said  river  lower  than  three-fourths 
of  an  inch  below  the  tops  of  the  flash  board  on  the  stone  dam  (the 
lawful  height  of  said  flash  boards  being  fixed  by  the  top  of  an  iron 
pin  driven  into  a fast  rock  at  the  side  of  the  river,  near  said  dam, 
which  is  referred  to,  to  determine  the  point  below  which  the  said 
waters  shall  not  be  drawn),  and  on  the  further  condition  that  the 
said  grantees  shall  after  the  discontinuane  of  said  canal,  either 
maintain  and  keep  in  good  repair  at  their  own  expense,  the  two 
canal  bridges  southerly  of  the  Concord  river  adjoining  lands  above 
described,  or  else  shall  take  down  the  said  bridges  and  till  up  said 
canal  under  the  same,  and  make  thereon  in  the  place  of  said 
bridges  a good  sufficient  road  way  to  the  satisfaction  of  the  town 
of  Billerica ; the  said  grantees  to  have  for  their  own  use  and 
benefit  all  the  stone  and  materials  of  which  said  bridges  are  com- 
posed. And  the  said  corporation  do  hereby  covenant  to  and  with 
the  said  Charles  P.  and  Thomas  Talbot,  their  heirs  and  assigns, 
that  the  above  released  premises  are  free  from  all  incumbrances, 
except  as  aforesaid  made  or  suffered  by  the  said  corporation,  or  any 
of  its  officers  and  that  the  said  corporation  will  warrant  and  defend 
the  same  premises  to  the  said  Charles  P.  and  Thomas  Talbot,  their 
heirs  and  asssigns,  against  the  lawful  claims  and  demands  of  all 
persons,  claiming  by,  through,  or  under  said  corporation,  except 
for  breach  of  condition  as  aforesaid,  and  against  none  other. 

In  witriess  whereof,  Ebenezer  Chadwick,  in  his  official  capacity 
as  President  of  the  Middlesex  Canal  Corporation,  hath  hereunto  set 
his  hand  and  affixed  the  seal  of  the  corporation,  this  twenty-second 
day  of  September,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  fifty-one.  The  words  “ thence  the  line  turns  and  runs  a 
southwesterly  course  by  the  roadway,  one  hundred  and  thirty  feet, 
more  or  less,  to  the  bound  of  beginning,”  interlined  on  the  second 
page  before  signing. 

EBEN  CHADWICK,  Pres’t . [seal.] 


Signed,  sealed  and  delivered  in  presence  of 

CALEB  EDDY. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.  : October  13,  1851. 

Then  personally  appeared  the  within  named  Ebenezer  Chadwick, 
and  in  his  official  capacity  as  President  of  the  Middlesex  Canal 
Corporation,  acknowledged  the  aforegoing  to  be  the  free  act  and 
deed  of  said  corporation,  before  me, 

CALEB  EDDY,  Jus.  of  the  Peace. 


370 


Charles  P.  Talbot,  et  al. 


Approved. 


Middlesex,  ss.  : 

Received  and  recorded  by 


October  23,  1851. 


CALEB  HAYDEN,  Reg. 


It  is  unnecessary  to  refer  to  the  forfeiture  of  the  charter, 
which  has  already  been  put  in.  Here  is  the  quitclaim  deed 
from  the  town  of  Billerica  to  Charles  P.  Talbot  et  al.,  dated 
March  25,  1864. 

Know  all  men  b}r  these  presents,  that  the  inhabitants  of  the 
town  of  Billerica,  in  the  County  of  Middlesex  and  Commonwealth 
of  Massachusetts,  a municipal  corporation,  in  consideration  of 
fifteen  hundred  dollars,  paid  by  Charles  P.  Talbot,  of  Lowell,  and 
Thomas  Talbot,  of  said  Billerica,  both  in  said  County  of  Middle- 
sex, the  receipt  whereof  is  hereby  acknowledged,  do  hereby  con- 
vey, remise,  release,  and  forever  quitclaim  unto  the  said  Charles 
P.  Talbot  and  Thomas  Talbot,  their  heirs  and  assigns,  all  the 
right,  title,  and  interest  which  said  town  of  Billerica  has  in  and  to 
the  real  estate,  privileges,  easements,  provisions,  and  conditions 
specified  in  a vote  of  said  town  passed  at  a general  town  meeting 
held  October  4th,  1708,  granting  certain  lands  and  rights  to  Chris- 
topher Osgood,  jr.,  of  Andover,  as  appears  by  the  records  of  the 
town  ; hereby  also  releasing  said  C.  P.  Talbot  and  Thomas 
Talbot,  their  heirs  and  assigns,  from  all  obligations  to  maintain 
a grist-mill  as  is  provided  in  said  last-named  vote  of  said  town. 

To  have  and  to  hold  the  above-released  premises,  with  all  tlje 
privileges  and  appurtenances  to  the  same  belonging,  to  the  said 
Charles  P.  Talbot  and  Thomas  Talbot,  their  heirs  and  assigns,  to 
their  use  and  behoof  forever. 

And  the  said  grantors,  for  themselves  and  their  successors,  do 
covenant  with  the  said  Charles  P.  and  Thomas,  their  heirs  and 
assigns,  that  the  premises  are  free  from  all  incumbrances  made  or 
suffered  by  said  grantors ; and  that  they  will  and  their  heirs,  ex- 
ecutors, and  administrators  shall  warrant  and  defend  the  same  to 
the  said  Charles  P.  and  Thomas,  their  heirs  and  assigns  forever, 
against  the  lawful  claims  and  demands  of  all  persons  claiming  by, 
through,  or  under  said  grantors,  but  against  none  other. 

In  witness  whereof  the  said  inhabitants,  b}'  Joshua  Bennett, 
Gardner  Parker  and  Amos  Spaulding,  and  Dudley  Foster,  their 
committee,  duly  chosen  and  authorized,  have  affixed  the  corporate 


Grant. 


371 


name  and  seal  of  said  town  hereto,  this  twenty-fifth  day  of  March, 
in  the  year  one  thousand  eight  hundred  and  sixty-four. 

THE  INHABITANTS  OF  THE  TOWN  OF  BILLERICA, 

By 

Joshua  Bennett, 
Gardner  Parker, 

[L.  S.]  Amos  Spaulding, 

Dudley  Foster, 

Their  Committee , 
duly  authorized. 

Signed,  sealed,  and  delivered  in  presence  of 

CHARLES  H.  PARKER. 

Middlesex  ss,  March  28th,  1864.  Then  personally  appeared  the 
above-named,  Joshua  Bennett,  Gardner  Parker,  Amos  Spaulding, 
and  Dudley  Foster,  and  acknowledged  the  above  instrument  to  be 
the  free  act  and  deed  of  the  above  named  Inhabitants  of  the  Town 
of  Billerica. 

CHARLES  H.  PARKER,  Justice  of  the  Peace . 

Now  I come  to  the  grant  of  1708  from  the  town  of  Bil- 
lerica, which  is  the  grant  of  the  whole  thing  : — 

GRANT  TO  OSGOOD. 

At  a general  Town  Meeting,  Oct.  4th,  1708.  Granted  to 
Christopher  Osgood,  Jr.,  of  Andover,  all  that  neck  of  land,  on  the 
west  side  of  Concord  river,  lying  between  said  river  and  the  path- 
way leading  to  broad  meadow,  with  the  stream  at  the  falls,  reserv- 
ing ten  poles  from  the  fordway  down  said  river,  and  from  the  foot 
of  the  hill  going  down  into  broad  meadow ; provided  the  said 
Christopher  Osgood  do,  within  two  years  next  ensuing  the  date 
hereof,  erect  and  maintain  a good  grist-mill  upon  said  river,  at  the 
falls  over  against  Samuel  Rogers,  his  house  lot,  and  the  said 
Osgood  doeth  engage  to  secure  and  defend  the  town  of  Billerica, 
from  any  trouble  and  charge  that  may  arise  for  damage  that  may 
be  done  to  the  meadows  of  the  towns  above  us  by  said  mill-dam  ; 
the  said  land  is  given  and  granted  to  the  said  Christopher  Osgood 
and  his  heirs,  by  the  town  of  Billerica,  so  long  as  they  shall  main- 
tain a good  grist-mill  at  said  place  ; and  when  said  mill  ceases  the 
said  land  shall  return  to  the  said  town  of  Billerica. 

Billerica  Town  Meeting,  March  27,  1710.  Voted,  that  the  town 
of  Billerica  will  defend  Mr.  Christopher  Osgood  from  bearing  any 
charge  of  the  damage  in  flowing  Dr.  Toothacre  meadow,  by  his 
mill-dam  ; said  Osgood  engaging,  for  himself  and  his  successors, 
that  the  said  stream  that  was  granted  to  him  shall  return  with  the 
land  to  the  said  town  of  Billerica,  when  the  said  mill  ceaseth  which 
he  holds  said  land  and  stream  by.  Passed  in  the  affirmative,  eight 
votes. 


372 


Charles  P.  Talbot,  et  al. 


Jonathan  Bacon,  Josiak  Bacon,  and  Josiah  Fassett,  entered  their 
dissent  against  vote. 


I next  put  in  the  deed  from  Thomas  Richardson  to  the 
Middlesex  Canal,  dated  March  25th,  1794. 

THOMAS  RICHARDSON  TO  MIDDLESEX  CANAL, 
March  25th,  1794. 

[Middlesex  Deeds,  Book  115,  p.  258.] 

Know  all  Men  by  these  Presents , That  I,  Thomas  Richardson,  of 
Billerica,  in  the  County  of  Middlesex  and  Commonwealth  of  Massa- 
chusetts, Gentleman,  in  Consideration  of  Thirteen  Hundred  and 
Fifty  Pounds  paid  me  by  Ebenezer  Hall  of  Medford,  Gentleman, 
and  Samuel  Jaques  of  Wilmington,  Yeoman,  both  in  the  County 
aforesaid,  the  receipt  whereof  I do  hereby  acknowledge,  do  hereby 
give,  grant,  sell,  and  convey,  unto  the  said  Ebenezer  Hall  and  Sam- 
uel Jaques  (who  are  a committtee  appointed  by  the  Directors  of 
the  proprietors  of  the  Middlesex  Canal  for  this  purpose) , to  be  for 
the  use  and  benefit  of  the  Proprietors  aforesaid,  in  their  Corporate 
Capacity,  and  their  Assigns,  forever,  the  following  Estate  and  on 
the  following  Conditions,  viz. : About  Forty  Acres  of  land,  be  the 
same  more  or  less,  lying  in  said  Billerica,  and  bounded,  Eastwardly, 
by  Concord  River ; Westerly,  by  the  Highway  or  Road  ; Northerly 
and  Southerty,  by  the  Road  aforesaid.  Also,  the  Reversion  of  One- 
Half  of  the  Dower  set  off  to  the  Widow  Hannah  Carlton,  which  was 
conve}7ed  to  me  by  Solomon  Carlton,  Moses  Carlton  and  Nathan 
Carlton.  The  whole  of  said  Reversion  of  the  Homestead  is  bounded 
as  described  by  the  return  of  the  Commissioners  for  that  purpose 
in  the  Probate  office.  Also,  Five-Sixths  part  of  a small  piece  of 
land,  laying  on  the  South  side  of  the  Road,  containing  about  Six 
poles,  more  or  less,  being  at  the  Northeast  end  of  the  Mill  Dam, 
bounded,  Easterly,  by  Timothy  Sprague’s  Ditch,  that  conveys 
Water  to  the  Fulling  Mill ; Northerly,  by  the  Road  ; Westerly  and 
Southerty,  by  Concord  River ; together  with  all  the  Buildings  and 
Privileges  to  the  above-described  premises  belonging,  including  the 
Mills,  Mill-privileges  and  conveniences,  thereunto  belonging  ; being 
on  the  premises,  and  commonty  known  by  the  name  of  Richardson’s 
Mills,  being  the  same  which  was  former  granted  by  the  town  of 
Billerica,  to  Christopher  Osgood,  together  with  Mill-Dam  and 
Stream.  Provided,  the  said  Proprietors  and  their  Assigns,  shall 
do  and  perform  the  same  Conditions  that  I,  the  said  Thomas 
Richardson,  shall  be  oblidged  to  perform  if  I do  not  convey  said 
Premises  to  said  Proprietors,  by  Virtue  of  a Vote  of  said  Town  of 
Billerica,  to  Christopher  Osgood,  the  fourth  Day  of  October,  1708. 
Also,  to  keep  a proper  passage  for  Fish,  agreeable  to  Law.  Also, 
their  fulfilling  the  agreement  made  b}^  said  Richardson,  as  set  forth 
in  his  last  Deed  to  Timothy  Sprague,  about  the  year  1791.  To 
Have  and  To  Hold  the  afore-granted  Premises  to  the  said  Proprie- 
tors and  their  Assigns,  and  to  their  own  Use  and  Behoof  forever, 
and  on  the  Conditions  aforesaid.  And  I do  Covenant  with  the 


Vote  of  town  of  Billerica. 


373 


said  Proprietors,  their  Heirs  and  Assigns,  that  I am  lawfully 
seized  in  Fee  of  the  afore-granted  premises ; that  they  are  free 
from  all  other  incumbrances ; that  I have  good  right  to  sell  and 
convey  the  same  to  the  said  Proprietors,  to  hold  as  aforesaid.  And 
that  I will  Warrant  and  defend  the  same  Premises  to  the  said  Pro- 
prietors, their  Heirs  and  Assigns,  forever,  against  all  other  lawful 
Claims  and  Demands  of  all  Persons.  In  Witness  whereof,  I,  the 
said  Thomas  Richardson,  and  Judith  Richardson,  the  Wife  of  said 
Thomas,  in  testimony  of  her  free  consent  hereunto  and  release  of 
Dower  in  the  Premises,  hereunto  set  our  Hands  and  Seals,  this 
twenty-fifth  Day  of  March,  in  the  Year  of  our  Lord  one  thousand 
seven  hundred  and  ninety-four.  It  is  further  to  be  understood,  that 
one-half  of  the  Dower  as  set  off  for  said  Widow,  Hannah  Carlton, 
is  not  hereby  conveyed. 

THOMAS  RICHARDSON.  [Seal.] 
JUDITH  RICHARDSON.  [Seal.] 

Signed,  Sealed,  and  Delivered,  in  presence  of  us. 

JONATHAN  BROWN. 

HENRY  PUTNAM. 

Middlesex,  ss.  : March  24th,  1794. 

Then  the  above-named  Thomas  Richardson  personally  appeared 
and  acknowledged  the  above-written  instrument  to  be  his  act  and 
deed,  before 

JONATHAN  BROWN,  Just . of  Peace. 

Middlesex,  ss.  : Cambridge,  April  21st,  1794. 

Received  and  entered  by 

WILLIAM  WINTHROP  Reg. 

[Middlesex  Deeds,  Book  618,  p.  97.] 

This  describes  forty  acres  of  these  same  lands. 

Mr.  Butler.  You  have  not  put  in  Osgood’s  deed  to 
Richardson. 

Mr.  Abbott.  No,  sir  ; that  deed  never  could  be  found.  It 
is  only  recited  here,  being  the  same  premises. 

Commissioner  Russell.  That  is  a missing  link. 

Mr.  Abbott.  It  is  missing  so  far  as  any  human  knowledge 
that  we  have  of  it  is  concerned. 

Now  here  is  a certified  copy  of  the  vote  of  the  town  of 
Billerica,  March  7th,  1864:  — 


At  a legal  town  meeting  held  at  Billerica,  March  7th,  1864,  the 
14th  article  in  the  warrant  calling  said  meeting  was, — 

“ To  see  if  the  town  will  sell,  release,  and  convey  to  C.  P.  and 
Thomas  Talbot  in  fee  simple  all  the  right,  title,  and  interest  which 
the  town  has  in  and  to  the  real  estate,  privileges,  easements,  pro- 
visions, and  conditions  specified  in  a vote  of  the  town  passed  at  a 


374 


Charles  P.  Talbot,  et  al. 


general  town  meeting  held  October  4th,  1708,  granting  certain  land 
and  rights  to  Christopher  Osgood,  jr.,  of  Andover,  as  appears  by 
the  records  of  the  town,  including  in  such  conveyance  a release  to 
said  C.  P.  and  Thomas  Talbot,  their  heirs  and  assigns,  from  all 
and  every  obligation  to  maintain  a grist-mill  as  is  in  said  vote  pro- 
vided, and  will  authorize  a proper  conveyance  and  release  of  said 
real  estate,  privileges,  easements,  provisions,  conditions,  and  obli- 
gations to  be  made  and  delivered  to  said  C.  P.  and  Thomas  Talbot.” 
The  town  voted  to  sell,  release,  and  convey  to  C.  P.  Talbot  and 
Thomas  Talbot,  in  fee  simple,  all  the  right,  title,  and  interest 
which  the  town  of  Billerica  has  in  and  to  the  real  estate,  privi- 
leges, easements,  provisions,  and  conditions,  referred  to  in  Article 
14th  of  the  warrant  for  this  meeting,  and  also  to  release  said 
C.  P.  Talbot  and  Thomas  Talbot,  their  heirs  and  assigns,  from  all 
obligations  to  maintain  a grist-mill,  as  referred  to  in  said  article, 
for  the  sum  of  fifteen  hundred  dollars,  to  be  paid  by  said  C.  P. 
Talbot  and  Thomas  Talbot  to  said  town.  And  that  a committee 
of  three  shall  be  chosen  by  the  town,  who  shall  be  authorized  to 
make,  execute,  acknowledge  and  deliver  in  the  name  of  the  town, 
and  all  and  every  instrument  or  instruments  necessary  to  carry  into 
effect  the  above  vote  of  the  town.  The  town  chose  Joshua  Ben- 
nett, Gardner  Parker,  and  Amos  Spaulding  committee  to  carry 
into  effect  the  above  vote.  The  town  voted  to  add  Dudley  Foster, 
Treasurer,  to  said  committee. 

Billerica , February  10 £/i,  1876.  I,  Dudley  Foster,  Town  Clerk 
of  Billerica,  hereby  certify  that  the  foregoing  is  a true  transcript 
from  Billerica  Town  Records. 

DUDLEY  FOSTER,  Town  Clerk. 

The  original  grant,  as  you  see,  by  the  first  vote  is  to  main- 
tain the  dam  and  give  the  whole  privileges,  — the  only  point 
on  that  side  of  the  river. 

Now  I propose  to  deal  with  the  other  grants. 

[Mr.  Abbot  put  in  the  following  papers  : Deed  of  Middle- 
sex Canal  to  Nathan  Morse,  March  20,  1826.  Deed  from 
Nathaniel  Stearns,  guardian  to  Edwin  Mears  and  Charles 
Mears,  minor  children  of  Nathan  Mears,  etc.,  made  March 
20th,  1832.  Deed  from  John  Baldwin,  guardian  to  Gardner 
Parker,  March  2d,  1832.] 

Then  Gardner  Parker,  by  deed  of  March  21st,  1832, 
acknowledged  April  2d,  1832,  conveyed  these  same  prem- 
ises, conveyed  by  both  the  deeds  1 have  just  put  in,  to 
Nathaniel  Stearns  of  Billerica.  [Deed  put  in.] 

Mr.  Butler.  The  guardian  sold  to  Parker,  and  Parker 
sold  back  to  the  guardiau. 

Mr.  Abbott.  I rather  think  that  is  so,  sir. 

Then  Nathaniel  Stearns,  by  his  deed,  dated  the  22d  ol 
June,  1844,  conveys  to  Charles  P.  Talbot  and  Thomas  Tal- 
bot these  same  premises,  describing  them  at  length,  for  a 


Argument  for  Petitioners. 


375 


consideration  of  $2,677.50.  You  see  a small  part  of  that  had 
got  to  be  pretty  valuable  at  that  time.  [Deed  put  in.] 

Then,  sir,  this  same  Stearns,  and  Mr.  Baldwin,  guardian 
of  the  children  of  Nathan  Mears,  sell  to  Francis  Faulkner, 
in  consideration  of  $1,042,  the  right,  title  and  interest  of  said 
minors  to  a certain  tract  of  land  situated  at  the  canal  mills 
in  Billerica,  with  the  building  thereon,  etc.  [Deed,  dated 
April  29,  1831,  put  in.] 

Then,  sir,  Abner  Kneeland,  as  guardian  of  James  Rice, 
junior,  conveys  all  this  land,  describing  it  in  the  same  way, 
to  Francis  Faulkner.  [Deed  put  in,  dated  24th,  1836.] 

Now,  you  see,  Mr.  Chairman,  to  keep  along,  I have  got 
into  Talbot’s  part  of  the  lot  conveyed  to  Mears.  I have  got 
in  to  him  the  reservation  in  behalf  of  the  inhabitants  of  the 
town  of  Billerica.  I have  got  the  deed  to  Faulkner,  the 
other  part  I have  got,  the  other  portion  the  Mears’  lot  con- 
veyed to  Francis  Faulkner,  so  that  now  to  deal  with  the 
Faulkners. 

Mr.  Butler.  I would  like  to  put  in  the  testimony  of  one 
or  two  witnesses,  in  this  report,  about  ” the  olden-time.” 

Mr.  Abbot.  If  you  will  point  out  to  me  what  you  want 
to  put  in,  I will  see. 

Mr.  Butler.  I will.  It  will  save  calling  somebody. 

Mr.  Abbott.  The  executors  of  Francis  Faulkner,  Charles 
Faulkner  and  James  R.  Faulkner,  two  of  his  children,  con- 
vey all  these  estates,  that  is,  all  that  were  conveyed  to  him 
by  the  Middlesex  Canal,  all  that  were  conveyed  to  him  by 
Kneeland,  and  conveyed  to  him  by  Stearns,  at  his  dceease, 
to  Luther  R.  Faulkner,  by  deed  dated  April  . They 

convey  to  Luther  W.  Faulkner,  another  brother.  Previous 
to  that,  however,  I ought  to  state,  Francis  Faulkner  conveys, 
in  his  lifetime,  one  undivided  third  part  of  this  property  to 
James  R.  Faulkner,  one  of  the  brothers  ; so  that  at  the  death 
of  Francis  Faulkner  that  property  stood  two-thirds  in  him, 
and  one-third  in  James  R.  Faulkner.  Then  James  R. 
Faulkner  and  Charles  Faulkner,  his  executors,  executors  of 
Francis  Faulkner,  two  of  the  children,  convey  those 
estates  to  Luther  W.  Faulkner,  and  it  was  a family  settle- 
ment really,  because  Luther  W.  conveys  back  one  undivided 
third  to  Charles,  the  gentleman  here,  and  one  undivided 
third  to  James  R.  Faulkner,  so  that  the  estate  gets  into 
James  R.  and  Charles  Faulkner.  Then,  sir,  in  1857,  James 
R.  and  Charles  Faulkner  convey  all  this  estate,  the  first  day 
of  April,  1857,  to  Charles  P.  and  Thomas  Talbot,  so  that  I 
now  have,  in  1857,  all  the  estate  in  the  two  Talbots.  The 
deed  is  as  follows  : — 


376 


Charles  P.  Talbot,  et  al. 


QUITCLAIM  DEED.— JAMES  R.  FAULKNER  ET  AL.  TO 
CHARLES  P.  TALBOT  ET  AL.,  APRIL  1,  1857. 

Know  all  men  by  these  presents,  that  we,  James  R.  Faulkner, 
of  Billerica,  in  the  County  of  Middlesex  and  Commonwealth  of 
Massachusetts,  manufacturer,  and  Charles  Faulkner,  of  Boston, 
in  the  County  of  Suffolk,  in  said  Commonwealth,  merchant,  in 
consideration  of  twenty  thousand  dollars,  paid  by  Charles  P. 
Talbot,  of  Lowell,  in  said  County  of  Middlesex,  and  Thomas 
Talbot,  of  said  Billerica,  merchants,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  convey,  remise,  release,  and  forever 
quitclaim  unto  the  said  Charles  P.  Talbot  and  Thomas  Talbot, 
their  heirs  and  assigns  forever,  a certain  piece  or  parcel  of  land, 
situated  in  the  northerly. part  of  said  Billerica,  with  a brick  factory 
and  buildings  thereon  standing,  bounded  as  follows,  namely : 
Beginning  at  the  road  which  passes  in  front  of  said  factory,  at 
the  corner  of  said  James  R.  Faulkner’s  house-lot,  and  running 
northerly,  on  said  James  R.  Faulkner’s  land,  until  it  comes 
parallel  with  the  front  of  his  dwelling-house ; thence  westerly 
three  hundred  feet  to  a stake  and  stones ; thence  southerly  one 
hundred  and  forty  feet  to  a stake  and  stones,  at  a little  basin,  so 
called,  in  Concord  river ; thence  easterly,  on  the  south  side  of 
said  Factory  creek,  and  on  land  of  Nathaniel  Stearns’,  now  or 
formerly,  to  the  road  above  mentioned  ; thence  on  said  road  to  the 
bounds  first  mentioned,  together  with  all  the  water-rights  and 
privileges  particularly  described  and  set  forth  in  the  deed  of  the 
proprietors  of  the  Middlesex  Canal  to  the  said  Francis  Faulkner, 
bearing  date  on  the  fourth  day  of  May,  A.D.  1825,  and  recorded 
in  the  Middlesex  Registry  of  Deeds,  book  260,  page  248,  and 
subject  to  the  same  restrictions  granted  and  contained  in  said 
deed,  together  with  all  and  singular  the  rights  and  privileges  to 
the  said  premises  belonging. 

Also,  a certain  other  lot  of  land,  with  a wooden  factory  thereon 
standing,  situate  nearly  opposite  the  brick  factory  aforesaid,  being 
the  same  premises  conveyed  to  the  said  Francis  Faulkner  by 
Nathaniel  Stearns  and  John  Baldwin,  guardians,  by  their  deed 
bearing  date  on  the  twenty-ninth  day  of  April,  A.D.  1831,  re- 
corded in  the  Middlesex  Registry  of  Deeds,  book  305,  page  44,  to 
which  reference  is  hereby  made  for  a more  particular  description 
of  the  said  premises ; together  with  all  the  water-rights  and  privi- 
leges described  and  set  forth  in  said  deed  of  Stearns  and  Baldwin, 
but  subject  to  the  same  reservations  and  restrictions  granted  and 
contained  in  said  last-named  deed,  and  together  with  all  and 
singular  the  rights  and  privileges  to  the  said  premises  belonging. 

Also,  a certain  other  lot  of  land,  situated  in  the  northerly  part 
of  Billerica  aforesaid,  near  the  bridge  over  Concord  river,  with 
the  buildings  thereon,  called  and  known  by  the  name  of  the 
“ Blacksmith’s  Forge  and  Iron  Works,”  being  the  same  premises 
first  described  in  the  deed,  by  which  Abner  Ivneeland,  guardian, 
conveyed  the  same  to  the  said  Francis  Faulkner,  bearing  date  on 
the  twenty-fourth  day  of*May,  A.D.  1836,  and  recorded  in  the 
Middlesex  Registry  of  Deeds,  book  353,  page  514,  to  which  refer- 
ence is  hereby  made  for  a more  particular  description  of  the  said 


Quitclaim  Deed. 


377 


premises,  together  with  all  the  water-rights  and  privileges  con- 
tained, described  and  set  forth  in  said  deed  from  Abner  Kneeland, 
but  subject  to  the  same  reservations  and  restrictions  granted  and 
contained  in  the  said  deed  of  Kneeland,  and  together  with  all  and 
singular  the  rights  and  privileges  to  the  said  premises  belonging. 

To  have  and  to  hold  the  above-released  premises,  with  all  the 
privileges  and  appurtenances  to  the  same  belonging,  to  the  said 
Charles  P.  Talbot  and  Thomas  Talbot,  their  heirs  and  assigns,  to 
them  and  their  use  and  behoof  forever. 

And  we,  the  said  James  R.  Faulkner  and  Charles  Faulkner,  for 
ourselves  and  our  heirs,  executors  and  administrators,  do  covenant 
with  the  said  Charles  P.  Talbot  and  Thomas  Talbot,  their  heirs 
and  assigns,  that  the  premises  are  free  from  all  incumbrances, 
made  or  suffered  by  us,  and  that  we  will,  and  our  heirs,  executors 
and  administrators,  shall  warrant  and  defend  the  same  to  the  said 
Charles  P.  Talbot  and  Thomas  Talbot,  their  heirs  and  assigns 
forever,  against  the  lawful  claims  and  demands  of  all  persons, 
claiming  by,  through,  or  under  us,  but  against  none  other. 

In  witness  whereof,  we,  the  said  James  R.  Faulkner  and  Charles 
Faulkner,  together  with  Catherine  Faulkner,  wife  of  the  said 
James  R.,  and  Annie  S.  Faulkner,  wife  of  the  said  Charles,  in 
token  of  their  release  of  all  right  and  title  of  or  to  dower  in  the 
granted  premises  have  hereunto  set  our  hands  and  seals  this  first 
day  of  April,  in  the  year  of  our  Lord  eighteen  hundred  and 
fifty-seven. 

JAMES  R.  FAULKNER, 
CHARLES  FAULKNER, 
CATHARINE  FAULKNER, 
ANNIE  S.  FAULKNER. 


Signed,  sealed  and  delivered  in  presence  of 
WM.  A.  GILBERT,  Jr. 

GEO.  H.  PRESTON  to  J.  R.  F.  and  C.  F. 

EMMA  S.  FAULKNER  to  C.  F. 

WM.  A.  GILBERT,  Jr.,  to  A.  S.  F. 

Then,  by  deed  about  the  same  date,  for  this  was  really  for 
the  purpose  of  settling  the  rights  between  these  parties,  the 
8th  day  of  May,  1857,  there  is  a deed  to  the  Talbots,  and 
back  to  James  R.  and  Charles  Faulkner,  conveying  back  to 
him  the  lands  upon  which  the  mill  stands,  as  described  in 
the  other  deeds. 

DEED.  — C.  P.  TALBOT  ET  AL.  TO  J.  R.  FAULKNER  ET 
AL.,  MAY  8,  18.57. 

Know  all  men  by  these  presents,  that  we,  Charles  P.  Talbot  of 
Lowell,  in  the  County  of  Middlesex  and  Commonwealth  of  Massa- 
chusetts, and  Thomas  Talbot  of  Billerica,  in  said  count}?-,  mer- 
chants, in  consideration  of  five  thousand  and  five  hundred  dollars 
paid  by  James  R.  Faulkner  of  said  Billerica,  manufacturer,  and 


378 


Charles  P.  Talbot,  et  al. 


Charles  Faulkner  of  Boston,  in  the  County  of  Suffolk  and  Com- 
monwealth aforesaid,  merchant,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  convey,  remise,  release  and  forever  quit- 
claim unto  the  said  James  R.  Faulkner  and  Charles  Faulkner,  in 
the  proportions  hereinafter  set  out,  their  heirs  and  assigns  forever, 

A certain  piece  or  parcel  of  land,  situated  in  the  northerly  part 
of  said  Billerica,  with  a brick  factory  and  buildings  thereon  stand- 
ing, bounded  as  follows,  viz  : Beginning  at  the  road  which  passes 
in  front  of  said  factory,  at  the  corner  of  said  James  R.  Faulkner’s 
house-lot,  and  running  northerly  on  said  Faulkner’s  land  until  it 
comes  parallel  with  the  front  of  his  dwelling-house  ; thence  west- 
erly three  hundred  feet  to  a stake  and  stones  ; thence  southerly 
one  hundred  and  forty  feet  to  a stake  and  stones  at  a little  basin, 
so  called,  in  Concord  river;  thence  easterly  on  the  south  side  of 
said  factory  creek,  and  on  land  of  Nathaniel  Stearns  now  or  for- 
merly, to  the  road  above  mentioned ; thence  on  said  road  to  the 
bounds  first  mentioned. 

Also  a certain  other  lot  of  land,  with  a wooden  factory  thereon 
standing,  situate  nearly  opposite  the  brick  factory  aforesaid,  being 
the  same  premises  conveyed  to  Francis  Faulkner  by  Nathaniel 
Stearns  and  John  Baldwin,  guardians,  by  their  deed  bearing  date 
on  the  twenty-ninth  day  of  April,  A.  D.  1831,  recorded  in  Middle- 
sex Registry  of  Deeds,  book  305,  page  44  (to  which  deed  refer- 
ence is  hereby  made  for  a more  particular  description  of  said 
premises),  but  without  the  water-rights  and  privileges  described 
and  set  forth  in  said  deed. 

Also  a certain  other  lot  of  land,  situated  in  the  northerly  part 
of  Billerica  aforesaid,  near  the  bridge  over  Concord  river,  with  the 
buildings  thereon,  called  and  known  by  the  name  of  the  “ Black- 
smith Forge  and  Iron  Works,”  being  the  premises  first  described 
in  the  deed  by  which  Alner  Kneeland,  guardian,  conveyed  the 
same  to  the  said  Francis  Faulkner,  bearing  date  on  the  twenty- 
fourth  day  of  May,  A.  D.  1836,  and  recorded  in  Middlesex  Reg- 
istry of  Deeds,  book  353,  page  514  (to  which  reference  is  hereby 
made  for  a more  particular  description  of  said  premises),  but  with- 
out the  water-rights  and  privileges  contained,  set  forth  and  de- 
scribed in  said  deed. 

Also  a certain  other  parcel  of  land,  situate  in  said  Billerica, 
bounded  and  described  as  follows,  viz.  : Beginning  at  a stake  on 
the  road  leading  from  Tewksbury  to  the  Canal  Mills  (formerly  so 
called),  at  the  intersection  of  the  line  of  said  road  and  the  strip  of 
land  in  common  on  the  easterly  side  of  the  Forge  lot,  so  called ; 
thence  north  40^°  west  four  rods,  one  and  a quarter  links  by  said 
strip  of  common  land ; thence  south  51°  west  seven  rods  and  thir- 
teen links  to  a stake  ; thence  north  81f°  west  six  rods,  twelve  and 
a half  links  across  the  little  basin,  so  called,  to  a stake  at  land 
owned  by  the  heirs  of  the  late  Francis  Faulkner ; thence  north 
514°  east  by  said  Faulkner’s  heirs’  land  eleven  rods  and  three  links 
to  a stake ; thence  north  73§°  east  by  said  heirs’  land  two  rods, 
thirteen  and  a half  links  to  a stake  ; thence  south  85°  east  by  said 
heirs’  land  two  rods  and  fourteen  links  to  a stake  ; thence  south  70° 
east  by  said  heirs’  laud  three  rods  and  nine  links  to  a stake  ; thence 


Deed  of  Talbot  to  Faulkner. 


379 


south  26^°  east  by  said  heirs’  land  three  rods,  fourteen  and  one- 
third  links  to  a stake  at  said  road  ; thence  south  56^°  west  by  said 
road  four  rods  and  seven  links  to  the  point  of  beginning ; contain- 
ing about  seventy-nine  and  a half  square  rods,  reference  to  be  had 
to  a plan  of  said  premises  drawn  b}T  Sprake  Livingston,  dated  the 
16th  of  May,  A.  D.  1844. 

Also  all  our  interest  in  a small  strip  of  land  four  feet  wide,  ad- 
joining said  last-described  lot,  and  hitherto  used  as  common  land 
by  said  grantors  and  grantees. 

Also,  whenever  the  water  above  our  dam  shall  be  above  a point 
which  is  three-quarters  of  an  inch  below  the  top  of  the  bolt  which 
is,  fixed  in  a rock  near  the  northeasterly  shore  of  the  pond  above 
said  dam,  and  which  has  hitherto  been  a water-mark  between  said 
grantors  and  grantees,  the  right  at  all  times  whilst  the  water  so 
continues  above  said  point,  of  drawing  water  not  exceeding  fifty- 
seven  and  three-tenths  cubic  feet  per  second  through  the  canal  or 
creek,  so  called,  on  the  premises  above  described,  subject,  how- 
ever, to  the  limitations,  reservations,  exceptions  and  provisions 
herein  contained,  but  never  to  be  used  on  more  than  two  water- 
wheels, and  for  scouring  and  steam  boilers,  with  the  right  of  re- 
newing said  two  wheels,  or  of  substituting  in  their  place  two  other 
water-wheels,  but  so  as  never  to  have  in  said  premises  but  two 
water-wheels  at  the  same  time,  with  the  right  to  close  the  gates  at 
the  head  of  said  canal  or  creek  when  it  may  be  necessary  for  the 
purposes  of  repairing  any  of  the  works  on  said  premises,  the  said 
grantees,  their  heirs  and  assigns,  forever  to  maintain  and  keep 
said  canal,  and  the  flumes  and  gates  thereof,  and  the  flumes  and 
gates  on  said  premises,  and  all  their  apparatus  and  works,  and  all 
parts  of  their  premises,  in  such  good  and  proper  condition  that  the 
water  from  the  stream  above  shall  not  unreasonably  run  to  waste 
through  the  same,  and  also  to  shut  their  gates  on  said  premises 
and  suspend  the  drawing  of  water,  as  aforesaid,  for  any  purpose  at 
all  times  whenever  the  head  of  water  above  the  dam  aforesaid  shall 
fall  to  the  point  aforesaid,  which  is  three-quarters  of  an  inch  below 
the  top  of  said  bolt,  and  also  to  keep  their  gates ,closed  and  prevent 
the  leakage  and  waste  of  water  so  far  as  can  be  reasonably  done 
while  the  water  above  said  dam  remains  at  or  below  said  point, 
except  that  while  the  water  is  below  said  point,  said  grantees, 
their  heirs  and  assigns,  may,  while  their  water-wheels  on  the 
premises  are  stopped,  use  in  an  economical  manner  so  much  water 
as  may  be  necessary  for  steam-boilers  and  scouring  purposes  for 
eight  sets  of  flannel  machinery. 

And  we,  the  said  grantors,  for  ourselves  and  our  heirs  and 
assigns,  herebj'  reserve  the  right  to  shut  off  the  water  from  said 
premises,  and  the  right  to  enter  upon  said  premises,  and  close  the 
gates  therein,  and  shut  off  the  water  therefrom,  as  often  as  and 
whenever  said  grantees,  their  heirs  and  assigns,  shall  draw  more 
than  the  fifty-seven  and  three-tenths  cubic  feet,  as  aforesaid,  and 
also  at  all  times  whenever  said  grantees,  their  heirs  and  assigns, 
shall  unreasonably  permit  the  water  to  leak  or  run  to  waste  through 
their  premises,  and  to  keep  the  same  shut  off  until  said  grantees, 
their  heirs  and  assigns,  shall  take  proper  measures  to  prevent  the 


380 


Charles  P.  Talbot,  et  al. 


drawing  of  more  than  fifty-seven  and  three-tenths  cubic  feet  of 
water,  as  aforesaid,  and  to  prevent  such  leaks  and  waste,  and  also 
as  often  as  and  whenever  the  water  above  said  dam  falls  to  the 
point  aforesaid,  and  to  keep  said  gates  closed  and  the  water  shut 
off  while  the  water  remains  at  or  below  said  point,  provided  said 
grantees,  their  heirs  and  assigns,  shall  fail  at  any  such  times  to 
close,  and  keep  closed,  their  gates  on  said  premises. 

And  we,  the  said  grantors,  for  ourselves  our  heirs  and  assigns, 
hereby  except  and  reserve  the  ownership  and  control  of  the  gates 
at  the  head  of  the  canal  leading  to  said  premises,  and  the  struc- 
tures to  which  said  gates  are  fixed,  and  the  right  to  keep  said  gates 
and  structures  in  order,  and  to  replace  them  with  others,  and  the 
right  of  access  to  them  at  all  times,  and  the  right  to  draw  off  the 
water  of  the  river  from  the  pond  above  our  dam  whenever  and  as 
often  as  and  so  long  as  it  may  be  necessary  to  make  changes, 
alterations,  additions  or  repairs  of  our  dam,  or  of  any  of  our  works 
on  our  premises,  and  the  right  to  maintain  our  dam  and  flashboards, 
and  to  pass  and  repass  to  the  same  and  around  the  mill-pond  for 
all  necessary  repairs  to  our  dam,  or  any  part  of  our  premises,  and 
the  right  to  convey  materials  for  such  repairs  over  the  premises 
herein  conveyed,  whenever  it  may  become  necessaiy  so  to  do. 

And  we,  the  said  grantors,  for  ourselves  and  our  heirs  and 
assigns,  hereby  reserve  the  right  of  using  the  water  of  the  mill- 
pond in  any  quantity,  and  for  any  and  all  purposes  in  a proper  and 
economical  manner  at  all  times  when  the  water  in  the  pond  is  above 
the  top  of  said  bolt,  it  being  understood  that  whenever  the  water 
in  the  pond  is  above  the  top  of  said  bolt,  and  while  it  so  remains 
above,  the  said  grantors,  their  heirs  and  assigns,  and  the  said 
grantees,  their  heirs  and  assigns,  may  exercise  their  respective 
rights  in  using  the  water  of  said  pond  at  the  same  time,  and  that 
while  the  water  in  the  pond  remains  above  the  top  of  said  bolt,  the 
use  of  the  water  of  said  pond  by  said  grantors,  their  heirs  and 
assigns,  and  by  the  said  grantees,  their  heirs  and  assigns,  within 
their  respective  limits  herein  set  out,  shall  not  be  deemed  an  inter- 
ference with  each  other’s  rights  to  use  the  water. 

Whenever  the  water  above  said  dam  shall  fall  below  the  top  of 
said  bolt,  and  at  all  times  while  it  remains  below  the  top  of  said 
bolt,  the  said  grantors,  for  themselves,  their  heirs  and  assigns,  still 
reserve  the  right  to  use  the  water  of  said  pond,  but  are  to  limit  the 
water  which  the}'  use  while  the  water  remains  below  the  top  of  said 
bolt,  to  the  amount  and  quantity  which  would  run  through  the  gates 
at  the  Canal  mills  as  they  existed  July  20th,  1833,  and  June  10th, 
1834,  when  measured  by  George  O.  Wilson,  whose  said  measure- 
ment is  to  determine  their  size,  situation  and  capacity,  and  under 
the  head  indicated  in  said  measurement  (the  same  being  fixed  by 
the  deposition  of  said  Wilson,  taken  in  perpetuam,  and  recorded 
in  Middlesex  County  Registry  of  Deeds,  now  Southern  District, 
book  of  depositions,  etc.,  No.  18,  page  531,  etc.,  to  which  refer- 
ence is  made),  the  amount  and  quantity  of  water  to  be  fixed 
thereby,  but  not  the  size,  situation  or  capacity  of  our  gates. 

And  it  is  hereby  understood  that  the  grantors,  their  heirs  and 
assigns,  do  not  covenant  or  warranty  and  shall  not  be  bound  to 


Deed  of  Talbot  to  Faulkner. 


381 


keep  the  darn  any  higher  than  they  are  legally  entitled  to  keep  it, 
without  incurring  any  liabilities  to  any  person  for  flowage,  and 
that  they  shall  in  no  way  be  bound  to  incur  such  liabilities. 

And  it  is  further  expressly  understood  and  agreed  by  and  be- 
tween said  grantors,  their  heirs  and  assigns,  and  said  grantees, 
and  their  heirs  and  assigns,  that  said  bolt  determines  and  fixes  the 
top  of  said  dam  as  the  same  at  present  exists,  and  that  in  case  said 
dam  shall  hereafter,  for  any  cause,  be  lowered  or  cut  down,  all  the 
provisions  of  this  deed  now  applicable  to  said  bolt  are  to  be  taken 
and  considered  as  applicable  to  and  be  in  fact  applied  to  the  actual 
top  of  said  dam  as  the  same  shall  then  be  fixed  and  exist,  and  not 
to  said  bolt. 

To  have  and  to  hold  the  same,  with  the  privileges  and  appurten- 
ances to  the  same,  belonging  in  the  following  proportions : Two 
undivided  third  parts  thereof  to  the  said  James  R.  Faulkner,  and 
the  other  undivided  third  part  thereof  to  said  Charles  Faulkner, 
their  heirs  and  assigns,  to  their  use  and  behoof  forever ; and  we, 
the  said  Charles  P.  Talbot  and  Thomas  Talbot,  for  ourselves  and 
our  heirs,  executors  and  administrators,  do  covenant  with  the  said 
James  R.  and  Charles  Faulkner,  their  heirs  and  assigns,  that  the 
premises  are  free  from  all  incumbrances  made  or  suffered  by  us, 
except  as  aforesaid,  and  that  we  will,  and  our  heirs,  executors  and 
administrators  shall,  warrant  and  defend  the  same  to  the  said  James 
R.  and  Charles  Faulkner,  their  heirs  and  assigns,  forever  against 
the  lawful  claims  and  demands  of  all  persons  claiming  by,  through 
or  under  us  (except  as  aforesaid),  but  against  none  other. 

In  witness  whereof,  we,  the  said  Charles  P.  Talbot  and  Thomas 
Talbot,  together  with  Harriet  E.,  wife  of  said  Charles  P.,  and 
Isabella  W.,  wife  of  said  Thomas,  in  token  of  their  release  of  all 
right  and  title  of  or  to  dower  in  the  granted  premises  have  here- 
unto set  our  hands  and  seals  this  eighth  day  of  May,  in  the  year 
eighteen  hundred  and  fifty-seven. 

The  word  “ hereby  ” interlined  in  36tli  line,  2d  page,  before 
signed. 

C.  P.  TALBOT, 

H.  E.  TALBOT, 

THOS.  TALBOT, 

ISABELLA  W.  TALBOT. 

A.  N.  Brown  to  C.  P.  and  T.  Talbot. 

F.  M.  Talbot  to  W.  E.  Talbot. 

W.  A.  Lamb  to  I.  W.  T. 

Commonwealth  of  Massachusetts,  Middlesex,  ss.,  May  5th,  1857. 

Then  personally  appeared  the  above-named  C.  P.  Talbot  and 

Thomas  Talbot,  and  acknowledged  the  above  instrument,  by 

them  subscribed,  to  be  their  free  act  and  deed. 

Before  me,  A.  R.  BROWN, 

Justice  of  the  Peace . 

The  grants  to  Mears  and  Faulkner  were  all  conveyed  to 
Faulkner  and  Talbot,  prior  to  1857,  subject  to  prior  grants 
to  Francis  Faulkner  and  Mears. 


382 


Charles  P.  Talbot,  et  aL. 


By  this  conveyance  back,  they  having  got  the  whole  of 
this  property,  the  water-rights  and  land,  they  convey  back 
in  terms  of  said  deed.  When  it  gets  below  the  point 
specified,  the  Talbots  are  only  to  use  what  water  can  pass 
through  certain  gates,  which  is  testified  to  in  a deposition  in 
perpetud. 

Mr.  Somerby  then  read  the  following  deposition  : — 


DEPOSITION  OF  GEORGE  O.  WILSON. 

First  Interrogatory.  (By  Thos.  Hopkinson,  Att’y  for  C.  P.  Tal- 
bot.) Are  you  acquainted  with  the  mills  at  Billerica,  owned  by 
the  Middlesex  Canal,  and  by  Mr.  Charles  P.  Talbot?  [ This  inter- 
rogatory objected  to  by  Middlesex  Canal , as  not  being  within  the 
terms  of  the  written  statement,  or  of  the  notice.'] 

Answer.  I am. 

2d  Int.  Have  you  ever  worked  on  the  dam  or  gates  or  mill  of 
the  Middlesex  Canal?  If  yea,  when?  \_Objected  to  as  before,  and 
especially  as  to  so  much  as  relates  to  the  gates  or  mill  of  the  Middle- 
sex Canal.] 

Ans.  I have  worked  on  the  gates  and  flume.  I built  pretty 
much  all  the  gates,  and  flume,  that  now  stand  — but  the  dam  I did 
not  work  upon.  At  various  times  from  1833  to  1840. 

3d  Int.  What  did  you  do  on  the  gates  and  mills  of  the  Middle- 
sex Canal  in  1833?  [ Objected  to,  on  same  grounds  as  to  2d  int.] 

Ans.  I took  away  the  old  mills,  and  built  the  new  mill  — gates, 
flumes,  and  wheels.  I made  all  the  new  gates  myself,  under  the 
orders  of  Col.  Butterfield,  — and  at  that  time  measured  the  old 
grist-mill  gates.  This  work  was  in  the  summer  of  1833. 

4tli  Int.  What  is  the  relation  of  the  gates  to  the  dam,  — where, 
and  how  situate?  [ Objected  to,  as  before,  and  as  not  specifying  what 
gates.] 

Ans.  The  gates  are  not  a part  of  the  dam,  but  on  the  end  of 
the  dam,  about  seventy-five  or  one  hundred  feet  from  it,  or  below 
it.  There  is  a basin  above  the  darn,  and  flumes  leading  out  from 
it  to  the  wheels.  The  dam  was  built  before  I went  to  Billerica. 
The  gates  are  in  the  flumes  and  near  the  wheels. 

5th  Int.  Where  the  water  is  taken  out  of  the  basin  to  run  into 
the  mill,  at  the  point  where  the  gates  are,  is  there  no  dam?  De- 
scribe the  gates  and  the  dam,  or  fixtures  in  which  thej^  are  set. 
[ Objected  to  as  before.] 

Ans.  There  is  a bulk-head,  which  is  water-tight,  and  which 
might  be  called  a dam,  where  the  water  is  taken  out.  The  gates 
are  set  in  the  flumes.  In  the  new  grist-mill  there  are  eight  gates 
and  five  water-wheels.  Six  of  the  gates  are  seven  and  a half  feet 
below  the  top  of  the  dam.  The  bottom  of  the  gate  is  one  foot 
lower  than  the  bottom  of  the  flume.  There  are  two  flumes.  The 
other  two  gates  are  six  and  a half  feet  below  the  top  of  the  dam. 

6th  Int.  What  was  the  size  of  the  gates  in  the  old  grist-mills 
that  you  took  out?  [ Objected  to,  as  before.] 

Ans.  In  the  upper  mill,  the  gates  were  one  of  them  thirteen  and 


Deposition  of  Wilson. 


383 


a quarter  inches  by  sixteen.  Another  gate,  fifteen  b}'  sixteen  and 
a quarter  inches.  In  the  lower  mill,  sixteen  and  a half  by  eighteen 
and  a quarter,  — another  gate,  fifteen  by  fourteen  and  a half.  I 
am  not  quite  certain  as  to  the  second  gate  in  the  upper  mill, 
whether  it  was  sixteen  and  a quarter  inches,  or  sixteen  and  a half. 

7th  Int.  How  many  rnn  of  stones  in  the  old  grist-mills? 

Ans.  Two. 

8th  Int.  How  many  in  the  new  grist-mill  ? 

Ans.  Three. 

9th  Int.  From  the  appearance  of  the  gates  which  you  took  out, 
how  long  do  you  think  they  had  been  in?  Describe  their  appear- 
ance as  to  age.  [ Objected  to.~\ 

Ans.  One  set  of  them  I should  think  had  been  in  twelve  years 
or  more, — at  the  lower  mill.  The  upper  mill-gates  I should  think 
not  more  than  six  or  eight  years. 

10th  Int.  What  the  dimensions  of  the  new  gates?  [ Objected  to.] 

Ans.  Three  of  the  new  gates  are  sixteen  inches  square.  Three 
of  them  are  fourteen  inches  by  sixteen,  — one  fourteen  inches 
square  — and  one  nine  inches  by  ten. 

lltli  Int.  Which  gates,  the  old  or  new,  were  under  the  greatest 
head  of  water,  and  what  is  the  difference,  if  any?  [ Objected  to  as 
before.'] 

Ans.  The  new  gates  are  under  the  greatest  head  of  water.  The 
difference  is  what  I call  two  feet,  but  it  is  not  exactly  two  feet. 
The  new  grist-mill  draws  1440  square  inches  of  water  under  a 
seven  and  a half  feet  head,  at  the  six  gates,  — and  286  square 
inches  under  a six  and  a half  feet  head,  at  the  other  two  gates. 
My  survey  is  two  feet  difference  between  the  old  and  new  grist- 
mills, as  to  head  of  water.  The  old  grist-mill  gates  were  five  and 
a half  feet  below  the  top  of  the  dam,  measuring  to  the  bottom  of 
the  gates.  The  four  gates  of  the  old  grist-mills  drew  974  square 
inches. 

12th  Int.  Did  you  put  a new  wheel  into  the  mill  now  oecupied 
for  making  carpets,  and  formerly  as  a dye  wood  mill?  If  yea, 
what  is  the  size  of  the  gates  in  this  new  wheel  ? 

Ans.  Yes.  There  are  nine  gates  there,  and  it  is  a breast-wheel. 
The  water  varies  on  that  wheel.  I calculate  it  as  thirty-two  cubic 
feet  per  second. 

13tli  Int.  Are  you  a millwright,  and  how  long  have  you  been 
engaged  in  that  business? 

Aas.  I am.  It  is  twenty  years  since  I first  begun,  and  have 
ever  since  followed  it. 

14th  Int.  What  number  of  inches  at  the  tub-wheel  gates  would 
draw  a quantity  of  water  equal  to  that  used  to  carry  said  breast- 
wheel? 

Ans.  Thirty-two  cubic  feet  of  water  per  second  is  nearly  the 
same  in  quantity  as  water  from  a gate  twelve  inches  square  under 
a head  of  eight  feet. 

1st  Cross-Int.  (By  Tappan  Wentworth,  counsel  for  Proprie- 
tors of  Middlesex  Canal.)  In  1833,  or  previous  thereto,  was  water 
used  to  carry  any  machinery  in  the  old  grist-milla,  except  the  two 


384 


Charles  P.  Talbot,  et  al. 


runs  of  stones  stated  in  your  answer  to  seventh  interrogatory  ? If 
yea,  what? 

Ans.  I suppose  there  was.  There  were  other  wheels  there,  but 
not  for  turning  the  grist  or  saw  mill.  There  was  a plaster-mill  to 
pound  plaster  in  the  old  mill.  There  was  an  oakum-mill,  also. 
There  was  one  wheel  to  carry  both  of  those.  I never  saw  the 
oakum-mill  going. 

2d  Cross-Int.  Had  this  wheel  separate  gates  from  those  used  for 
carrying  water  to  corn-mill  wheel  ? If  yea,  how  many  and  of  what 
size,  if  you  measured  them? 

Ans.  That  wheel  had  one  gate,  sixteen  inches  by  eighteen,  sep- 
arate from  the  other  wheel.  I measured  it. 

3d  Cross-Int.  Was  there  a part  of  the  grist-mill  used  for  boring 
logs  for  aqueducts,  previous  to  1833  ? If  yea,  was  there  a separate 
gate  through  which  water  passed  to  the  wheel  carrying  the  boring 
machine  ? State  the  size  of  such  gate,  if  there  was  one  and  if  you 
measured  one. 

Ans.  There  was  a part  of  the  saw-mill,  or  a building  attached 
to  the  saw-mill,  for  boring  logs.  There  was  a separate  gate  and  a 
separate  wheel  for  the  boring  machine.  I did  not  measure  the 
gate,  but  should  think  it  was  a foot  square  or  more.  The  machine 
was  not  used  after  I went  there,  and  I never  saw  it  used  at  all. 
There  was  a lath-machine  there,  that  run  by  another  wheel,  and 
took  a few  inches  of  water.  It  had  a small  breast-wheel,  with  a 
gate  thirty  inches  by  three  or  five. 

4th  Cross-Int.  Was  there  not  a draw-up  gate  in  the  old  saw-mill 
in  1833,  or  previous?  If  yea,  what  was  its  size?  State  if  you 
measured  it. 

Ans.  There  was  such  a gate,  thirty-six  inches  by  eight,  by  my 
measurement. 

5th  Cross-Int.  Was  there  a separate  gate  to  pass  water  to  a 
wheel  used  for  a bolting-mill,  in  said  grist-mill  previous  to  1833? 

Ans.  I never  saw  any  such  gate.  There  was  an  old  bolting- 
mill,  but  I saw  no  wheel  or  gate  when  I went  there,  or  since. 

6th  Cross-Int.  Was  there  not  more  than  one  gate  to  the  boring- 
mill?  If  so,  how  many? 

Ans.  I never  saw  but  one  gate  there  to  the  boring-mill,  that  I 
know  of. 

7th  Cross-Int.  Were  the  four  gates  you  measured  in  the  old 
grist-mill  the  gates  that  fed  the  corn-mill  wheels  exclusively? 

Ans.  They  were. 

8th  Cross-Int.  When  did  you  measure  the  old  gates  ? At  whose 
request  did  }rou  do  it?  Who  was  present  at  the  time?  Was  any 
notice  given  to  the  proprietors  of  Middlesex  Canal,  or  Mr.  Eddv, 
of  this  measurement?  Did  you  at  the  same  time,  or  at  any  other 
time,  measure  any  other  old  gates  taking  water  from  the  basin? 
If  so,  at  whose  request?  Who  was  present?  Was  notice  given  to 
said  proprietors,  or  to  Mr.  Eddy,  of  the  same,  and  what  were  the 
dimensions  of  such  other  gates  measured  by  you  ? 

Ans.  I measured  the  old  gates  July  20th,  1833,  at  the  request 
of  Francis  Faulkner,  Esq.  Col.  Butterfield,  Faulkner,  and  myself 
only  were  present.  I know  nothing  about  any  notice  to  the  canal, 


Deposition  of  Wilson. 


385 


or  to  Mr.  Eddy.  I,  on  same  day,  measured  another  old  gate  tak- 
ing water  from  the  basin  to  the  plaster-mill,  or  oakum-mill.  This 
was  the  measurement  of  the  grist-mill.  The  next  year  the  saw- 
mill was  fixed,  and  then  I measured  the  saw-mill  gates  which  lead 
out  of  the  same  basin.  I measured  the  saw-mill  gates  for  my  own 
fancy,  and  no  one  was  present  with  me  ; and  the  fact  was  so  as  to 
the  measurement  of  the  plaster-mill  gate.  I have  no  knowledge 
of  any  notice  to  the  canal,  or  to  Mr.  Eddy.  Two  of  the  saw-mill 
gates  were  twelve  by  fourteen  inches  ; one  gate  seventy-two  inches 
by  five  ; and  one  seventy-one  inches  by  five  ; and  one  (which  was  a 
draw-up  gate)  eight  inches  by  thirty-six. 

9th  Cross-Int.  How  do  you  recollect  the  exact  dimensions  of 
these  gates? 

Ans.  I marked  it  down  at  the  time,  — saw-mill,  June  10, 1834, — 
the  grist-mill,  July  20,  1833.  I marked  it  on  a. memorandum,  which 
I have  here  on  a paper.  — 

10th  Cross-Int.  ^Will  you  allow  that  paper  to  be  annexed  to  the 
deposition? 

Ans.  I consider  that  paper  as  my  property.  The  canal  company 
have  a copy  of  my  measurement  of  the  old  grist-mill  and  saw-mill. 
I gave  Mr.  Eddy  a copy,  within  a month  past,  of  the  grist-mill  and 
saw-mill  measurement. 

11th  Cross-Int.  Where  has  the  memorandum  you  speak  of  re- 
mained since  1833  — and  are  your  measurements  on  the  same  piece 
of  paper? 

Ans.  It  has  been  in  my  own  possession,  among  my  papers.  The 
measurements  are  not  on  the  same  paper. 

12th  Cross-Int.  In  your  reference  to  memoranda  to-day,  do  you 
use  the  originals  or  copies  ? 

Ans.  I use  the  original. 

13tli  Cross-Int.  Do  you  know  the  number  and  size  of  the  gates 
that  were  in  use  at  the  grist  and  saw-mills,  and  the  buildings 
connected  therewith  in  the  months  of  May,  1825,  and  March,  1826. 
If  yea,  state  distinctly  all  that  you  know  on  the  subject  ? 

Ans.  I know  nothing  as  to  that,  and  had  not  then  seen  them. 
I saw  them  in  1831  ; November  or  October  for  the  first  time. 

14th  Cross-Int.  How  high  is  it  necessary  to  raise  the  present 
grist-mill  gates,  to  carry  the  stones  for  grinding? 

Ans.  They  are  generally  used  about  as  I have  given  them.  The 
gates  usually  work  as  I have  given  them.  You  can  grind  with  one 
gate,  but  you  cannot  grind  much  corn.  The  gates  were  made  to 
work  according  to  the  dimensions  I have  mentioned  ; but  they  will 
grind  with  less,  and  it  is  necessary  to  twist  them  full  up,  to  do 
good  business,  to  the  dimensions  I have  given. 

15th  Cross-Int.  Do  you  know  how  high  the  gates  are  usually 
hoisted  to  grind  grain? 

Ans.  Usually  to  the  height  I have  stated,  but  they  can  be  raised 
two  inches  higher.  My  dimensions  include  the  ordinary  working 
aperture  of  the  gates,  but  they  can  be  raised  two  inches  higher. 

16th  Cross-Int.  Do  the  present  tenants  hoist  more  than  one  gate 
to  grind  wheat  or  corn  to  your  knowledge? 

Ans.  Sometimes  they  hoist  one  and  sometime  two,  I suppose. 


386 


Charles  P.  Talbot,  et  al. 


I don’t  know  how  much  water  they  take  in  grinding  wheat.  A 
year  ago  last  fall  they  did.  When  the  water  was  very  low,  I have 
known  them  use  one  only. 

Additional-Int.  (By  T.  Hopkinson,  Cousel  for  C.  P.  Talbot.) 
Were  the  grist-mill,  saw-mill,  oakum  and  plaster-mills  ever  worked 
all  at  the  same  time? 

Ans.  That  is  more  than  I know.  It  was  very  common  for  the 
grist-mill  and  saw-mill  to  go  at  the  same  time.  I never  saw  the 
oakum-mill  at  work. 

2d  addal-Int.  How  long  was  the  plaster-mill  worked  to  your 
knowledge  ? 

Ans.  Never  any  work  was  done  with  it,  that  I know  of,  — but  1 
have  seen  it  going,  though  there  was  no  plaster  to  grind. 

3d  addal-Int.  How  long  was  the  lathe  machine  worked.  Do 
you  know  that  this  was  ever  worked  at  the  same  time,  with  both 
the  grist  and  saw-mill? 

Ans.  It  was  torn  down  in  1832,  or  thereabouts,  — that  is  the 
year  that  they  took  the  mill  down.  It  was  going,  when  I first 
went  there,  in  1831.  They  were  all  worked  at  the  same  time. 

4tli  addal-Int.  Are  the  same  mill-gates  now  of  the  same  dimen- 
sions they  were  in  1838?  Have  they  been  changed  since  you 
knew  it. 

Ans.  There  is  only  one  saw-mill  now,  and  there  were  two  them. 
There  are  four  gates  now,  and  then  there  were  five.  The  gates 
now  are  the  following : — one  saw-mill  gate,  seventy-two  inches  by 
five  ; one  nigger  gate,  twelve  by  fourteen  ; a draw-up  gate,  four- 
teen by  fifteen  inches  ; and  another  for  the  grindstone,  now  used  by 
for  the  carpet-factory,  sixteen  by  eighteen  inches ; but  I suppose 
it  is  used  now  about  half  open.  The  grindstone  did  not  take  so 
much,  and  the  circular  saw  probably  took  more. 

5th  addal-Int.  Will  you  annex  to  this  deposition,  a copy  of  the 
paper  on  which  yau  set  down  your  measurements? 

Ans.  I offer  copies,  which  are  annexed. 

GEORGE  O.  WILSON. 


Commonwealth  of  Massachusettt.  Middlesex , ss. 

On  this  thirtieth  day  of  August,  in  the  year  of  our  Lord  eighteen 
hundred  and  forty-five,  personally  appeared  before  us  the  sub- 
scribers, Justices  of  the  Peace,  within,  and  for  said  county,  and 
counsellors  at  law,  George  O.  Wilson,  the  aforesaid  deponent,  and 
being  duly  sworn  to  testify  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  he  gave  the  foregoing  deposition,  by  him  subscribed 
in  our  presence,  and  the  same  was  by  one  of  us  reduced  to  writing. 
Taken  at  the  request  of  C.  P.  Talbot,  to  be  used  in  perpetual 
remembrance  of  the  thing.  And  it  being  suggested  to  us  by  said 
Talbot,  in  the  written  statement  of  his  claim  and  interest,  in  the 
subject  matter  (which  statement  is  herewith  returned,)  that  the 
proprietors  of  the  Middlesex  Canal  were  interested  therein  ; we 
caused  notice  to  be  given  in  due  form  to  said  proprietors  of  the 
time  and  place  for  taking  said  deposition,  and  they  attended  at 
said  time  and  place,  by  Caleb  Eddy  and  Tappen  Wentworth,  Esq., 


Thomas  Talbot. 


38? 


and  said  proprietors  objected  to  the  taking  thereof ; but  it  appear- 
ing to  us  that  the  deponent  expected  to  leave  this  part  of  the 
coontry,  in  the  autumn  for  Georgia ; there  to  follow  his  trade  of  a 
millwright,  provided,  he  found  it  for  his  interest  so  to  do,  or  in  any 
other  part  of  the  country,  where  he  should  find  employment,  — that 
he  is  an  unmarried  man,  having  a mother  resident  at  Billerica,  in 
this  county,  — and  that  he  is  not  certain  where  his  residence  may 
be  for  the  future  ; we  decided  to  take  said  deposition. 

Fees,  including  stationary,  use  of  room,  etc.,  $8. 

SETH  AMES, 

DANIEL  S.  RICHARDSON. 

Middlesex,  ss.  November  28,  1845.  Received  and  recorded  in 
the  Registry  of  Deeds,  Book  of  Depositions,  etc.,  No.  18,  Page 
531,  etc. 

Attest, 

CALEB  HAYDEN, 

Register. 


Thomas  Talbot,  sworn. 

Q.  (By  Mr.  Abbott.)-  You  are  one  of  the  parties  named  here, 
Governor,  I believe? 

A.  Yes,  sir. 

Q.  When  did  you  first  go  to  Billerica,  to  the  mills? 

A.  In  1839. 

Q.  And  been  there  ever  since? 

A.  Yes,  sir. 

Q.  Connected  with  the  water-power  during  the  whole  of  that 
time? 

A.  Yes,  sir. 

Q.  The  first  purchase,  as  you  see  by  the  deed,  was  1844  ? 

A.  In  1844. 

Q.  And  your  next  purchase  in  1851  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  Tenant  up  to  the  first  purchase? 

A.  Yes,  sir. 

Q.  (By  Mr.  Abbott.)  Except  to  this  purchase  you  made  in 
1844? 

A.  Yes,  sir. 

Q.  And  subsequently,  between  1844  and  1851,  you  hired  of  the 
Middlesex  Canal? 

A.  Previous  to  1844. 

Q.  Didn’t  you  hire  something  after  1844? 

A.  No,  sir. 

Q.  And  since  1851  you  have  been  in  possession  and  using  and 
occupying  it? 

A.  Yes,  sir. 

Q.  Using  the  water  for  your  own  purposes? 

A.  Yes,  sir. 

Q.  The  canal  was  discontinued  about  what  time? 

A.  In  the  fall  of  1851. 


388 


Charlies  P.  Talbot,  et  al. 


Q.  There  was  no  water  drawn  after  1851  ? 

A.  I believe  not,  sir. 

Q.  And  absolutely  filled  up  about  that  time  below? 

A.  I think  it  was  filled  up  in  1852,  or  ’53  ; I am  not  sure. 

Q.  You  paid  taxes  during  all  this  time  oil  this  property? 

A.  Yes,  sir  ; I think  so. 

Q.  And  something  has  been  said  here  in  reference  to  the 
land  on  the  east  side,  I suppose  it  is  — at  any  rate,  it  is  the  side 
towards  Boston,  at  the  end  of  the  dam.  Does  your  land  come  up 
to  that  end  of  the  dam  ? 

A.  I don’t  know  that  we  have  a descriptive  deed  of  that  end  of 
the  land. 

Q.  Excepting  the  Thomas  Richardson  deed? 

A.  Yes,  sir. 

Q.  Whether  that  dam  is  the  one  which  you  have  always  used 
and  occupied  since  you  have  been  there? 

A.  Yes,  sir. 

Q.  Anybody  else  claim  any  right  in  it  except  yourself? 

A.  No,  sir. 

Q.  How  large  an  investment  have  you?  I don’t  mean  in  any- 
thing but  the  land,  buildings  and  machinery. 

A.  You  mean  our  entire  investment? 

Q.  Yes.  In  the  Billerica  mills,  including  land,  machinery  and 
the  buildings  used  in  connection  with  your  water-power  there. 

A.  Our  expenditure  there  is  about  $400,000. 

Q.  And  your  other  capital  connected  with  it  to  carr}'-  it  on  ? 

A.  Should  think  about  $300,000. 

Q.  About  $700,000? 

A.  Yes,  sir  ; approximately. 

Q.  And  you  have  got  it  as  nearly  as  you  can  by  looking  over 
your  books,  I suppose? 

A.  Yes,  sir. 

Q.  When  was  your  flannel  mill  built  ? 

A.  First  in  1857,  and  in  ’70. 

Q.  It  was  enlarged  in  1870? 

A.  Yes,  sir. 

Q.  How  large  was  it  first  built  in  1857? 

A.  Eight  sets. 

Q.  In  1870,  enlarged  to  what  capacity? 

A.  Built  it  for  twenty  sets  and  put  in  six. 

Q.  Making  fourteen? 

A.  Yes,  sir. 

Q.  You  have  full  room,  as  I understand  you,  for  twenty  sets? 
A.  Yes,  sir. 

Q.  How  many  wheels  to  that  mill  ? 

A.  Two. 

Q.  Two  hundred  horse-power? 

A.  We  aimed  at  about  200  horse-power  when  we  put  them  in. 

Q.  That  is  the  capacity  for  the  twenty  sets? 

A.  Yes,  sir. 

Q.  What  wheels  are  they  there? 

A.  One  is  the  Boyden  turbine,  built  in  Fall  River ; and  the 
other  is  a Swaine  wheel. 


Thomas  Talbot. 


389 


Q.  Whether  the  wheels  are  expensive  and  as  good  as  you  could 
get,  or  not? 

A.  We  intended  they  should  be  the  very  best,  put  in  the  best 
shape. 

Q.  How  much  did  they  cost  you  there  ? 

A.  The  Swaine  wheel  cost  us  between  $11,000  and  $12,000; 
the  Fall  River  turbine  cost  us,  without  remembering  positively, 
between  $5,000  and  $6,000. 

Q.  And  fitted  up  as  well  as  you  could  have  them  made? 

A.  Yes,  sir. 

Q.  What  is  your  head  of  water? 

A.  Eleven  feet. 

Q.  How  many  other  wheels  have  you  besides  these  two  in  the 
brick  mill? 

A.  We  have  six  wheels  in  the  dyewood  mill. 

Q.  Are  these  turbines? 

A.  Four  Fall  River  turbines,  one  Blake  and  one  Whitney. 

Q.  I want  to  ask  you  if  you  gave  the  outlets  of  those  wheels 
to  Mr.  Holmes? 

A.  I gave  him  the  outlets  of  the  Fall  River  turbine  wheels, 
and  the  Swaine  wheel  I got  the  outlets  from  the  builders  as  they 
gave  them  to  me.  I didn’t  have  them  measured. 

Q.  As  they  gave  them  to  you  as  they  were  put  in? 

A.  Yes,  sir. 

Q.  Well,  the  Blake  & Whitney  wheel. 

A.  I gave  Mr.  Holmes  the  size  of  them.  That  is  all  I know 
about  the  outlets. 

Q.  When  they  were  put  in  there? 

A.  Yes,  sir. 

Q.  So  that  you  have  eight  wheels  in  all  ? 

A . Yes,  sir. 

Q.  Have  those  wheels  all  been  put  in  since  you  have  been  there? 

A.  Yes,  sir. 

Q.  And  how  old  is  any  one  of  them  ? 

A.  Some  of  the  turbine  wheels  were  put  in  in  1853  or  ’54 1 should 
think  — some  of  the  Boyden  turbine  wheels. 

Q . (By  Mr.  Bdtler.)  In  the  dye-works? 

A.  In  the  dye-works. 

Q.  (By  Mr.  Abbott.)  In  good  condition  at  the  present  time? 

A.  They  are  running,  as  long  as  they  have  been  there,  in  fair 
condition. 

Q.  How  about  the  dam,  whether  it  is  permanent  or  otherwise? 

A.  That  is  permanent. 

Q.  In  reference  to  your  water-power  appliances  necessary  for 
keeping  up  the  head  and  fall  of  your  dams  and  other  appliances  ; 
whether  it  is  considerable  expense  to  keep  it  going  from  year  to 
year  ? 

A.  Only  a reasonable  expense,  keeping  the  flash-boards  on ; it 
is  not  very  large. 

Q.  1 want,  Governor,  to  know  what  expense  it  would  be  yearly, 
for  keeping  that  part  constant.  I mean  keeping  the  dam  up, 
keeping  the  flash-boards  up  so  to  aflord  you  water,  for  the  sluice- 
ways and  canals,  whatever  they  are? 


390 


Charles  P»  Talbot,  rt  al. 


A.  I should  think  only  a few  hundred  dollars  a year  for  keeping 
it  up. 

Q.  It  is  a regular  split-stone  dam  ? 

A.  Yes,  sir. 

Q.  Did  you  ever  have  any  trouble  with  that? 

A.  It  leaks  once  in  a while  and  we  tighten  it ; it  is  a good  sub- 
stantial dam. 

Q.  In  reference  to  using  any  means  of  water,  which  you  have 
there,  bv  the  old  Middlesex  Canal  in  reaching  out  towards  Lowell, 
and  the  Merrimac  river,  whether  you  have  the  means  of  using  any  of 
the  water  which  you  caught  ? 

A.  Plenty  of  room. 

Q.  And  so  directly  into  the  river  below? 

A.  Yes,  sir ; the  canal  is  built  partially ; the  old  canal  is  still 
there,  and  they  raised  the  bank  part  of  the  way. 

Q.  So  that  you  have  plenty  of  room  to  put  in  more  works,  and 
take  the  water  directly  from  the  canal  into  the  river? 

A.  Yes,  sir. 

Q.  Take  it  during  the  dry  season  ; say  the  four  dry  months 
beginning  with  June  and  ending  with  September,  inclusive,  how 
has  it  been  heretofore  in  reference  to  the  running  of  your  brick 
mills  and  your  other  mills? 

A.  My  woollen  mill  ? 

Q.  Your  woollen  mill ; I call  it  a brick  mill.  I believe  that  is 
the  only  brick  mill  you  have. 

A.  We  have  a d}rewood  mill  of  brick.  We  have  never  but  two 
occasions  that  I can  call  to  mind  been  troubled  for  want  of  water. 
I mean  running  the  woollen  mill. 

Q.  When  were  those  two  occasions  ? 

A.  One  was  a year  ago  last  winter. 

Q.  That  is,  the  winter  of  1875? 

A.  I think  so;  and  this  summer,  some  since  I returned  home. 

Q.  That  would  be  in  September? 

A.  Yes,  sir. 

Q.  Do  you  recollect  what  part  of  the  winter  of  1875  it  was? 

A.  It  was  the  latter  part  of  the  winter. 

Q.  To  what  extent  was  that  interference?  I wish  you  would 
describe  it  as  well  as  you  can. 

A.  I don’t  remember.  We  were  troubled  two  or  three  weeks  I 
should  say,  and  were  obliged  to  shut  off  one  water-wheel,  and  tried 
to  run  with  one. 

Q.  You  didn’t  stop  your  mills,  but  were  troubled  in  finding 
water  for  a while? 

A.  Yes,  sir. 

Q.  Not  as  much  as  you  wanted? 

A.  No,  sir. 

Q.  It  didn’t  amount  to  enough  to  stop  }rour  works? 

A.  No,  sir. 

Q.  Then  this  summer  since  you  returned? 

A.  We  have  been  obliged  to  shut  off  part  of  our  machinery. 

Q.  In  the  woollen  mill? 

A.  Yes,  sir. 


Thomas  Talbot. 


391 


Q.  You  didn’t  stop  the  mill  entirely? 

A.  No,  sir. 

Q.  How  long  did  that  last? 

A.  From  the  second  week  — I should  say  in  September,  for  two 
weeks  ; perhaps  two  or  three  weeks,  until  the  rain  came,  some 
two  or  three  weeks  ago  ; about  two  weeks,  I should  think. 

Q.  Now  those  two  exceptions,  you  say,  are  the  only  things  you 
now  recollect  of  being  interfered  with  in  your  woollen  mill.  With 
those  two  exceptions  have  you  managed  heretofore  to  run  your 
works  during  the  dry  season? 

A.  We  first  intend  that  our  woollen  mills  should  be  kept  in  full 
operation  and  not  interfered  with,  and  then  we  take  the  water, 
when  the  quantity  is  more  than  the  woollen  mill  needs,  and  use  it 
for  our  dyewood  mill  purposes.  When  the  water  commences  to  fail 
us,  we  stop  portions  of  the  dyewood  mill,  keeping  the  woollen  mill 
running. 

Q.  Now  just  at  that  point  I want  to  ask  you  how  frequently,  or 
otherwise,  is  it  during  these  four  months  that  I have  spoken  of, 
the  dry  season,  that  you  are  obliged  to  stop  the  whole  of  your  dye- 
wood  machinery,  all  day? 

A.  Well,  we  sometimes  have  to  stop  the  larger  or  some  con- 
siderable portion  of  the  dyewood  mill  in  the  daytime,  in  the  dry- 
est  portion  of  the  season. 

Q.  How  large  a part  of  the  time,  if  there  is  an}7  time,  when  you 
have  absolutely  to  stop  the  whole  day  the  dyewood  machinery?  I 
am  speaking  of  the  working-day. 

A.  We  have  to  stop  occasionally;  but  the  water  must  be  very 
low  for  that ; we  haven’t  had  to  stop  very  much. 

Q.  Unfrequently  when  you  have  to  stop  every  part? 

A.  Frequently  we  do. 

Q.  Frequently  you  do  ? 

A.  Yes,  sir. 

Q.  How  large  a part?  I mean  now  the  working-day. 

A.  Sometimes  we  run  part  of  the  day,  and  sometimes  we  have 
to  stop  all  day,  but  we  can  generally  run  some  portion  of  a day. 

Q.  That  is  what  I want  to  get  at.  So  that  the  stopping  of  your 
dyewood  machinery  all  day  is  quite  unfrequent  to  you? 

A.  Yes,  sir. 

Q.  But  sometimes  it  happens  that  you  run  part  of  the  day,  and 
then  have  to  stop  it? 

A.  Yes,  sir.  We  do  occasionally  have  to  stop  our  dyewood 
mills.  We  do  stop  our  dyewood  mills  entirely  in  the  daytime  and 
put  them  on  nights. 

Q.  Then,  in  reference  to  running  nights  your  dyewood  machinery, 
how  do  you  manage  about  keeping  up  your  head  of  water  for  the 
next  morning? 

A.  Well,  when  the  factory  stops  we  put  on  such  machinery  in 
the  mills  as  we  can  run,  and  have  the  pond  full  in  the  morning. 

Q.  So  you  don’t  run  your  dyewood  machinery  at  nights  so  as  to 
impair  your  head  of  water  in  the  morning? 

A.  That  is  not  our  intention. 

Q.  Now,  in  reference  to  Mr.  Faulkner’s  mill,  how  large  a part 


392 


Charles  P.  Talbot,  et  al. 


of  the  time  should  you  think,  during,  say,  ten  or  twelve  years 
past,  he  was  obliged  to  stop  by  getting  down  to  that  limit,  “three- 
quarters  of  an  inch  below  the  bolt  ” ? 

A.  Well,  it  is  a mere  matter  of  judgment,  because  I have  no 
record  whatever,  but  I should  think  somewhere  from  thirty-five  to 
forty-five  days,  I should  say  for  some  time  until  latterly  ; the  last 
two  or  three  years  longer. 

Q.  Do  you  recall  it,  sir,  of  his  stopping  in  the  winter  at  any 
time,  except  in  this  same  time  wdiich  you  speak  of? 

A.  No,  sir. 

Q.  Whether,  in  the  winter  of  1875,  a year  ago  last  winter,  he 
was  obliged  to  stop  ? 

A.  Yes,  sir. 

Q.  And  during  that  time  which  you  speak  of  as  interfering  wfith 
your  machinery? 

A.  Yes,4  sir. 

Q.  You  are  pretty-  familiar  with  the  run  of  the  water  of  that 
stream,  are  you  not?  I mean  at  your  mills. 

A.  Well,  somewhat,  sir. 

Q.  And  since  you  have  been  there  have  tried,  from  your  invest- 
ment and  interest  in  it,  have  watched  it  pretty  closely,  I suppose? 

A.  Yes,  sir. 

Q.  I want  to  have  you  give  us  an  opinion,  as  far  as  you  can, 
from  your  observation  of  the  water.  Take  this  case  : take  away 
a fifth  of  the  water  during  the  six  months  beginning  with  May  and 
ending  with  October,  May  and  October  inclusive,  how  would  it 
operate  upon  your  dam  with  reference  to  the  water  being  kept 
down,  you  using  the  wrater  at  the  same  time,  the  water  being  kept 
down  to  “three-quarters  of  an  inch  below  the  bolt”? 

A.  I think  it  would  affect  us  in  the  winter  more  than  it  has 
formerly^.  I think  we  should  be  short  of  water,  probably',  in  the 
winter  months,  and  I have  an  impression  that  as  far  as  the  surplus 
power  is  concerned,  it  would  be  narrowed  down  to  about  six 
. months. 

Q.  That  is  the  surplus  water,  that  above  this  bolt  spoken  of, 
three-quarters  of  an  inch? 

A.  Yes,  sir. 

Q.  Would  not  substantially'  exceed,  so  far  as  your  observation 
is  concerned,  six  months  of  the  year? 

A.  I should  think  there  was  more  danger  of  its  being  short  in 
six  months  of  the  y'ear. 

Q.  Can  you  give  us  any  idea,  of  your  our  knowledge,  of  the 
amount  and  extent  of  your  water-wheels,  — the  capacity  of  your 
water-wheels  ? 

A.  I have  had  an  idea  about  the  power  of  the  water-wheels 
without  having  any  positive  measurement. 

Q.  Well,  we  have  got  pretty  positive  measurement;  I will  not 
press  that.  Your  woollen  mill,  you  said,  was  200  horse-power,  as 
you  understood  it? 

A.  That  was  my'  intention,  to  put  in  200  horse-power. 

Q.  Whether  you  have  any  room  in  your  present  woollen  mill  to 
put  in  steam-power  ? 


Thomas  Talbot. 


393 


A.  No,  sir. 

Q.  And  any  application  of  steam-power  would  have  to  be  in  a 
separate  building? 

A.  Yes,  sir. 

Q.  And  then  for  the  accommodation  of  your  coal,  how  would 
it  affect  the  use  of  your  mill  and  mill-yard  ? 

A.  If  the  boiler-house  is  put  where  it  is  suggested  to  be  put? 

Q.  Well,  take  the  best  place  to  put  it  to  use  your  mill? 

A.  Well,  it  would  occupy  pretty  much  all  the  coal  room  we 
have  got. 

Q.  I want  to  call  your  attention  to  the  application  of  steam 
power  to  your  woollen  mill ; whether  there  is  any  trouble  in  the  use 
of  your  lower  story  where  you  would  apply  it? 

A.  The  belt  upon  which  it  was  suggested  to  apply  it,  where  it 
was  supposed  would  be  the  best  possible  place  to  supply  it,  comes 
right  through,  and  cuts  off  our  basement. 

Q.  What  effect  would  that  have  practically  on  a portion  of  your 
mill  ? 

A.  The  belt  comes  right  between  our  finishing  and  scouring 
room,  and  every  bale  of  goods  we  finish  would  have  to  pass  just 
where  that  belt  would  go,  to  reach  our  finishing  room. 

Q.  What  effect  would  that  have  in  lessening  the  trouble  and  the 
expense  of  carrying  on  }rour  works  ? 

A.  It  would  be  a very  serious  inconvenience.  It  is  very  diffi- 
cult for  me  to  estimate  the  damage. 

Q.  Well,  sir,  you  have  a pretty  close  knowledge  of  your  mills, 
and  the.wa}^  they  are  worked  and  run.  What,  in  your  judgment, 
would  be  really  the  loss,  as  near  as  you  can  put  it,  to  be  compelled 
to  submit  to  that  iu  the  management  of  3^0111*  mill,  as  it  is  now? 

A.  As  far  as  I understood  the  application  of  steam,  — as  is  sup- 
posed to  be  the  best  way  of  applying  it, — I would  not  have  it  there 
for  $10,000. 

Q.  From  this  inconvenience  of  cutting  up  this  one  part  from 
another  in  the  basement  story  you  would  have  to  provide  another 
method  of  going? 

A.  Yes,  sir. 

Q.  Have  you  weighed  that,  and  thought  of  it,  and  looked  at  it 
as  carefully  as  you  could  ? 

A.  I have,  sir. 

Q.  What  is  now  the  price  of  coal  upon  your  premises,  delivered 
at  the  yard  ? 

A.  I think  it  cost  about  $7  a ton  delivered  at  our  coal-pit. 

Q.  Well,  2,000  or  2,200? 

A.  A gross  ton  ; the  best  coal. 

Q.  It  would  be  $6.50  upon  the  railroads;  then  you  would  have 
to  get  it  from  the  railroad  to  }7our  pit? 

A.  It  might  be  a shade  different  from  $7,  but  I think  it  would 
not  be  far  from  $7.  I think  about  $7. 

Q.  What  has  it  been  heretofore? 

A.  From  $8  to  $9. 

Q.  Not  below  $8. 

A.  I am  not  sure. 


394 


Chakles  P.  Talbot,  et  al. 


Q.  I mean  in  the  last  ten  or  twelve  years  ? 

A.  It  has  been  a greal  deal  higher  than  that  in  the  last  ten  or 
twelve  years.  I am  not  positive  what  we  paid  for  coal  the  last 
year.  I have  not  looked. 

Mr.  Abbott.  A claim  was  made  in  the  Essex  Company’s  case, 
that  there  was  no  attempt  made  to  settle.  Do  yon  make  a point 
of  it  here? 

Mr.  Butler.  I think  you  had  better  put  in  your  case. 

Q.  (By  Mr.  Abbott.)  What  was  the  condition  of  the  mills  and 
the  buildings,  sir  at  the  time  you  purchased  them  in  1851? 

A.  The  main  mills  of  the  Canal  Corporation  were  burnt  off  in 
1846  or ’47,  I think  it  was,  and  they  only  rebuilt  one  saw-mill,  and 
at  one  end  of  it  they  put  in  a small  grist-mill  to  comply  with  the 
condition  of  the  town. 

Q.  One  set  of  stone? 

A.  Yes,  sir;  and  one  mill. 

Q.  How  was  it  as  to  its  being  a costly  mill  or  otherwise? 

A.  It  was  not  a costly  mill.  We  practically  bought  the  dam 
and  water-power. 

Q.  That  is,  for  your  purpose,  the  dam  and  water-power  were  all 
that  were  available? 

A.  Yes,  sir. 

Q.  And  how  was  it  as  to  the  dwelling-houses? 

A.  There  was  but  one  dwelling-house  and  four  tenements. 

Q.  An  old  or  a new  one? 

A.  An  old  one  ; it  is  a very  good  one. 

Q.  Built  how  long? 

A.  I don’t  remember  ; it  was  built  before  I came  there. 

[ Adjourned  to  Tuesday,  October  3d,  at  9.30.] 


Thomas  Talbot* 


395 


’Tuesday,  Oct.  3d. 

Testimony  of  Hon.  Thomas  Talbot.  — Continued . 

* 

Q.  (By  Mr.  Abbott.)  Your  Stern’s  purchase  was  on  the  east 
side  of  the  river  where  the  old  saw-mill  was  which  was  spoken  of? 
A.  Yes,  sir. 

Q.  Part  of  Mr.  Faulkner’s  mill  now  stands  on  that  land? 

A.  Yes,  sir. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  Who  owns  the  land  where  the  easterly 
end  of  the  dam  stands? 

A.  We  own  the  dam,  and  all  the  land  rights  conveyed  to  us  by 
the  deed  of  the  Middlesex  Canal  Co. 

Q.  Have  you  any  other  right  to  the  dam  than  that  conveyed  by 
the  Middlesex  Canal  Co.  ? 

A.  No,  sir,  except  by  possession. 

Q.  You  have  no  deed,  then,  from  anybody  else  of  any  land  on 
the  east  side  of  the  river  except  the  Middlesex  Canal  Co.  ? 

A.  We  have  had  all  the  land  on  the  east  side  of  the  river  deeded 
to  us  bv  the  Faulkners. 

Q.  And  then  you  deeded  it  back? 

A.  We  conveyed' to  them  ; yes. 

Q.  So  that  you  now  own  the  land  on  the  east  side  of  the  river? 

A.  The  Middlesex  Canal  Co.  gave  us  the  right-of-way  around 
that  dam,  and  the  right  to  have  access  to  it  at  all  times  on  that 
side  of  the  river  through  their  land,  and  the  right-of-way  around  it, 
if  I remember  correctly,  for  the  purpose  of  maintaining  the  dam, 
repairs,  and  every  proper  purpose,  if  I remember  correctly.  I 
have  not  read  the  conditions. 

Q.  The  deed  will  show  for  itself? 

A.  Yes,  sir. 

Q.  But  to  the  land,  except  the  right-of-way  to  maintain  the 
dam,  you  got  no  deed? 

A.  Only  what  we  got  from  the  Middlesex  Canal  Co.,  and  the 
Messrs.  Faulkner,  and  the  Sterns’  deed.  We  had  a deed  from  the 
Messrs.  Sterns.  How  that  affects  the  question,  I am  now  not 
informed. 

Mr.  Butler.  We  will  put  in  the  deed  of  Nathaniel  Sterns  to 
you,  dated  June  22d,  1844. 

Know  all  Men  by  these  Presents , That  I,  Nathaniel  Sterns,  of 
Billerica,  in  the  County  of  Middlesex  and  Commonwealth  of 
Massachusetts,  yeoman,  in  consideration  of  twenty-six  hundred 
and  seventy-seven  and  fifty  one-hundredths  dollars  to  me  paid  by 
Charles  P.  Talbot,  of  said  Billerica,  trader,  the  receipt  whereof  I 
do  hereby  acknowledge,  have  granted,  remised,  released  and  for- 


Chakles  P.  Talbot,  et  al. 


396 


ever  quit-claimed,  and  do  for  myself  and  my  heirs,  by  these 
presents,  remise,  release,  and  forever  quit-claim  unto  the  said 
Charles  P.  Talbot,  his  heirs  and  assigns,  a certain  parcel  of  Real 
Estate,  situate  in  said  Billerica,  at  the  Canal  Mills,  so  called, 
being  the  saw-mill  and  water-privilege,  lately  belonging  to  the 
heirs  of  Nathaniel  Mears,  dec’d,  with  all  the  machinery  and 
saw-mill  apparatus  to  the  same  belonging,  bounded  as  follows, 
viz. : Beginning  at  a stake  on  the  road  leading  from  Tewksbury 

to  the  Canal  Mills,  at  the  intersection  of  the  line  of  said  road  and 
a strip  of  land  in  common,  on  the  easterly  side  of  the  Forge,  so 
called,  thence  north  40£°  W.,  four  rods  one  and  a quarter  links,  by 
said  strip  of  common  land  ; thence  south  51°  west,  seven  rods  and 
thirteen  links  to  a stake  ; thence  north  81|°  west,  six  rods  twelve 
and  a half  links  across  the  Little  Basin,  so  called,  to  a stake  at 
land  owned  by  the  heirs  of  the  late  Francis  Faulkner,  Esq.,  dec’d ; 
thence  north  51^-°  east,  by  said  Faulkner’s  heirs’  land,  eleven  rods 
and  three  links  to  a stake ; thence  north  73f°  east,  by  said  heirs’ 
land,  two  rods  thirteen  and  a half  links  to  a stake ; thence  south, 
85°  east,  by  said  heirs’  land,  two  rods  and  fourteen  links  to  a stake  ; 
thence  south  70°  east,  by  said  heirs’  land,  three  rods  and  nine 
links  to  a stake ; thence  south  26|°  east,  by  said  heirs’  land, 
three  rods  fourteen  and  one-third  links,  to  a stake  at  said  road  ; 
thence  south  56^°  west,  by  said  road,  four  rods  and  seven  links  to 
the  point  begun  at,  containing  seventy-nine  and  a half  square  rods, 
reference  to  be  had  to  a plan  of  said  premises,  drawn  by  Sprake 
Livingstone,  dated  the  16th  day  of  May,  1844,  together  with  all 
the  rights  and  privileges  and  water-power  appertaining  to  said 
mill,  now  owned  by  me,  or  owned  and  possessed  by  me  on  the 
thirteenth  day  of  May  last,  hereby  intending  to  convey  all  the 
real  estate  I own  on  the  east  side  of  Concord  River,  in  Billerica 
aforesaid,  as  privileges  and  appurtenances,  to  said  mill,  to  have 
and  to  hold  the  afore-mentioned  premises,  with  all  the  privileges 
and  appurtenances  thereunto  belonging  to  him,  the  said  Charles 
P.  Talbot,  his  heirs  and  assigns,  forever;  so  that  neither  I,  the 
said  Nathaniel  Sterns,  nor  my  heirs,  or  any  other  person  or  per- 
sons claiming  from  or  under  me  or  them,  or  in  the  name,  right  or 
stead  of  me  or  them,  shall  or  will,  b}r  any  way  or  means,  have, 
claim  or  demand  any  right  or  title  to  the  aforesaid  premises,  or 
their  appurtenances, Jor  to  any  part  or  parcel  thereof  forever.  And 
I,  for  myself  and  my  heirs,  executors  and  administrators,  do 
covenant  with  said  Charles  P.  Talbot,  his  heirs  and  assigns,  that  I 
will,  and  m}'  heirs,  executors  and  administrators  shall,  warrant 
and  defend  the  same  to  the  said  Charles  P.  Talbot,  his  heirs  and 
assigns,  forever,  against  the  lawful  claims  and  demands  of  all  per- 
sons, claiming  by,  through,  or  under  me,  and  against  no  other 
claims  and  demands. 

In  witness  whereof,  I,  the  said  Nathaniel  Sterns,  together  with 
Sarah  Sterns,  wife  of  said  Nathaniel  Sterns,  in  token  that  she 
releases  all  claim  to  dower  in  the  premises,  have  hereunto  set  our 


Thomas  Talbot. 


397 


hands  and  seals,  this  twenty-second  day  of  June,  in  the  year  one 
thousand  eight  hundred  and  forty-four. 

NATHANIEL  STERNS,  [l.s.“ 

SARAH  STERNS,  [l.s/ 

Signed , sealed  and  delivered  in  presence  of  us, 

EMELY  STERNS, 
MARSHALL  PRESTON. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Middlesex,  ss.  June  26th,  1844. 

Then  the  above-named  Nathaniel  Sterns  acknowledged  the 
above  instrument  to  be  his  free  act  and  deed,  — before  me. 

MARSHALL  PRESTON, 

Justice  of  the  Peace . 

Middlesex,  ss.  June  27th,  1844. 

Rec’d  and  recorded  in  the  Registry  of  Deeds,  Book  445, 
Page  237. 

Attest : WM.  F.  STONE,  Peg. 

9 

Q.  The  Middlesex  Canal  was  running  when  you  came  there, 
Gov.  Talbot,  was  it  not? 

A.  Yes,  sir. 

Q.  Whether  in  the  dry  season  they  run  their  saw-mill? 

A.  Well,  largely  they  did.  Mr.  Wilson  had  a saw-mill,  and  had 
a right  to  run  it ; but  the  canal  corporation  had  a right  to  close  all 
those  mills,  except  the  town  grinding. 

Q.  I am  not  talking  about  rights,  I am  asking  about  the  fact. 
Did  they  run  their  saw-mill  in  the  dry  seasons? 

A.  Not  in  the  lowest  time,  when  the  water  was  low. 

Q.  Wasn’t  the  canal  corporation  frequently  short  of  water  to 
operate  their  canal  with  in  the  dry  season? 

A.  Sometimes  they  were ; when  the  grist-mill  was  rising  con- 
siderable water,  they  would  be  short ; although,  as  a rule,  my  im- 
pression is  that  when  the  mills  were  not  running,  there  was  enough 
for  the  canal. 

Q.  Did  they  take  any  means  to  clear  out  the  ford-wa}’  above  the 
dam,  in  order  to  get  a larger  supply  of  water? 

A.  I have  heard  of  such  a thing  ; but  I never  saw  it  done.  That 
was  before  I came,  I think. 

Mr.  Abbott.  We  are  willing  to  admit,  if  you  want  that  fact  in, 
that  some  time,  very  soon  after  they  commenced,  they  undertook  to 
blast  out  the  ford-way,  for  the  purpose  of  getting  more  water. 

Witness.  That  was  not  within  my  knowledge. 


398  Charles  P.  Talbot,  et  aL. 

Mr.  Butler.  I had  reference  more  particularly  to  clearing  out 
the  weeds. 

Mr.  Abbott.  They  undertook  to  blast  out  the  rocks.  That  is 
still  stronger. 

Q.  Whether  in  the  dry  season,  the  Middlesex  Canal  did  not  use 
most  of  the  water? 

A.  They  did. 

Q.  How  far  does  your  dam,  as  a dam,  in  your  judgment,  flow 
back? 

A.  Well,  I suppose  the  effect  of  it  is  seen  above  Barrett’s  Bar, 
at  Concord.  I don’t  remember  now  how  much.  I have  not 
recently  noticed. 

Q.  About  how  much  there? 

A.  Well,  I don’t  remember.  Perhaps  two  or  three  inches. 

Q.  It  it  correctly  stated  in  the  report  of  the  Commissioners, 
Mr.  Storrow  and  others? 

A.  As  far  as  I know,  it  is. 

Q.  You  had  experiments  made  at  one  time  on  your  dam,  did  you 
not? 

A.  Yes,  sir.  You  mean,  under  our  direction? 

Q.  Under  the  direction  of  the  Commissioners? 

A.  The  Commissioners  had  experiments  made.  Yes,  sir. 

Q.  You  saw  the  effect  of  those  experiments? 

A.  Yes,  sir. 

Q.  How  much  did  they  take  down  your  dam? 

A.  The  lowest  was  fifty-seven  inches,  I think.  That  is,  exhausted 
the  water  to  that  extent,  I think. 

Q.  For  how  long  did  they  affect  it  to  that  extent? 

A.  I cannot  tell  you  ; not  long  ; a day  or  two,  perhaps. 

Q.  Long  enough  to  observe  its  effect  upon  the  pond  above  ? 

A.  I have  no  doubt  of  it. 

Q.  How  much  did  it  lower  the  water  of  the  ford  way  ? 

A.  A little  less  than  eight  inches,  I think.  I am  not  quite 
sure. 

Q.  It  is  stated  in  the  report  of  the  Commissioners,  is  it  not? 

A.  I think  it  is. 

Q.  And  stated  correctly,  as  you  remember  it? 

A.  As  far  as  I know.  All  this  is  from  recollection,  I have  not 
examined  that  report  for  a long  time. 

Q.  But  you  remember,  undoubtedly,  whether  at  the  time  it  was 
correctly  stated,  as  you  understood  it? 

A.  I presume  it  is  correct,  sir. 

Q.  Then,  as  far  as  you  understand  it,  the  taking  down  of  your 
dam  fifty-seven  inches  would  not  lower  the  water  at  the  ford- way 
more  than  eight  inches.  In  other  words,  you  could  not  draw  more 
than  eight  inches  of  water  above  the  ford-way  by  drawing  off  your 
dam  ? 

A.  That  is,  as  I understand  it. 

Q.  How  large  in  extent  is  this  ford-way  ? 

A.  Well,  I don’t  know.  I should  think  it  extended  up  and 
down  the  river  from  two  to  four  hundred  feet.  I could  not  say. 

Q.  Have  you  ever  had  any  soundings  made  to  see  what  extent 
of  blasting  would  take  out  say  two  or  four  feet? 


Thomas  Talbot. 


399 


A.  No,  sir. 

Q.  Have  you  any  opinion  upon  that  subject? 

A.  I have  never  examined  it  with  a view  of  doing  that.  I don’t 
know  that  I have  any  judgment  about  it. 

Q.  How  deep  was  the  water  on  Barrett’s  Bar,  near  Concord, 
when  it  affected  it  there  slightly? 

A.  I don’t  remember ; but  there  is  a channel  there.  In  the 
deepest  part  of  the  channel,  I don’t  know,  but  I should  think  it 
was,  perhaps,  two  feet  deep,  possibly. 

Q.  How  much  fall  is  there  in  the  river  between  the  top  of  your 
dam  and  the  Causeway  bridge  at  Sudbury? 

A.  That  depends  upon  the  stage  of  the  river. 

Q.  I mean  when  the  river  is  even  full. 

A.  It  varies  from  two  and  a half  feet  to  four,  depending  upon 
the  state  of  the  river.  I have  seen  surveys  where  it  has  been  stated 
at  that. 

Q.  You  have  had  surveys  made,  have  you  not? 

A.  We  did  once. 

Q.  Have  you  got  a copy  of  that  survey? 

A.  It  is  in  the  report  of  the  committee  upon  the  flowage  of 
meadows  on  Concord  and  Sudbury  rivers,  which  Mr.  Abbott  had 
yesterday.  Mr.  Avery  made  the  survey.  I do  not  give  his  fall. 
I don’t  remember  what  he  made  it. 

Q.  What  is  the  distance  from  your  dam  to  the  Sudbury  cause- 
way, where  this  fall  is  made? 

A.  Well,  from  twenty  to  twenty-two  or  three  miles,  I think. 

Q.  Now,  in  the  dry  season,  when  the  water  stands  even  with 
the  top  of  the  bolt,  what  is  the  fall  from  the  top  of  the  bolt  at 
your  dam  to  Sudbury  causeway? 

A.  I should  say  about  three  feet. 

Q.  Wasn’t  it  made  up  twenty-eight  inches? 

A.  I saw  it  so  stated.  I think,  if  I remember  right,  that  Mr. 
Avery  made  it  about  three  feet. 

Mr.  Abbott.  I think  that  survey  is  in  the  book.  It  was  made 
carefully. 

Q.  In  using  your  dam,  do  you  draw  down  the  water  at  night  to 
any  considerable  distance  on  the  dam  for  the  purpose  of  storing 
up  water  in  the  night? 

A.  We  do. 

Q.  How  much? 

A.  Well,  from  twelve  to  eighteen  inches. 

Q.  Taking  care  to  leave  it  full  to  commence  work  in  the  morn- 
ing, I suppose? 

A.  That  is  the  instruction. 

Q.  That  is  what  you  mean  to  do? 

A.  Yes,  sir. 

Q If  it  is  not  used  that  way,  it  is  against  your  wish  and  will? 

A.  It  is. 

Q.  In  the  summer-time,  in  the  last  six  years,  how  many  sets  of 
cards,  with  the  requisite  machinery,  have  you  actually  used? 

A.  We  have  run  fourteen  since  the  extension,  in  1870  or  ’71  ; 
I think  in  ’71f  Since  that  time,  we  have  run  fourteen  sets. 


400 


Charles  P.  Talbot,  et  al. 


Q.  And  you  reckon  about  seven  horse-power  per  set? 

A.  I think  seven  is  not  sufficient.  I think  ten  is  ample. 

Q.  Isn't  it  generally  reckoned  about  seven? 

A.  No,  sir,  I think  not.  We  used  to  think  that  seven  would 
run  a set  of  flannel  machinery ; but  now  that  they  have  the  addi- 
tion of  drying-machines  for  wool,  drying-machines  for  cloth,  bur- 
ring, picking,  and  scouring  by  machinery,  I do  not  think  it  will. 
Then  the  additional  speed.  We  are  running  now  much  faster  than 
we  used  to,  which  takes  more  power.  I think  ten  is  ample  ; but  I 
should  not  want  to  put  water-wheels  of  any  power  in  less  than 
ten  horse-power  to  a set. 

Q.  Was  the  consideration  mentioned  in  your  deed  from  the 
Middlesex  Canal,  the  true  consideration? 

A.  Yes,  sir. 

Q.  f 20,000. 

A.  Yes,  sir. 

Q.  Which  takes  the  most  power your  drug  and  dye-wood 
works,  or  your  mill  ? 

A.  The  dye-stuff  works  now. 

Q.  How  many  horse-power  does  your  dye-stuff  works  take  when 
the}'  are  all  running? 

A.  Well,  something  rising  two  hundred  horse  ; in  in  the  neigh- 
borhood of  two  hundred  horse  ; a little  rising  of  that,  I should  say. 

Q.  Now,  about  your  power  below.  Does  the  Wamesit  dam, 
with  its  flash-boards,  flow  up  to  your  mill? 

A.  It  flows  into  our  wheel-pits,  sir.  We  sunk  our  pits  low, 
and,  no  doubt,  Wamesit  dam  flows  into  them. 

Q.  You  feel  sensibly  any  rise  down  there? 

A.  Yes,  sir. 

Mr.  Abbott.  I believe  the  relative  rights  of  those  dams  are 
fixed  by  referees,  of  whom  Mr.  Francis  was  one? 

Mr.  Butler.  Yes,  sir. 

Q.  Take  the  feeders  of  the  Concord  river  above  your  dam  ; what 
is  the  first  one? 

A.  There  is  none  of  any  importance  that  I remember  of  until 
we  reach  the  Assabet.  There  is  a small  feeder  in  Billerica,  run- 
ning from  Nutting’s  pond  ; there  is  a small  stream  comes  in  there, 
with  a little  machine-shop  there,  on  the  east  side.  Then  there  is 
one  in  Carlyle,  a small  brook. 

Q.  Where  does  that  come  from  ? 

A.  That  I don’t  know  ; I never  followed  that ; at  least,  I have 
not  for  a long  time.  I know  there  is  a little  brook  comes  in  there. 

Q.  That  is  Black  Brook.  Then  there  comes  in  the  Assabet,  and 
that  forms  one  branch  of  the  Concord  river. 

A.  Yes,  sir. 

Commissioner  Russell.  Where  is  Black  Brook? 

Mr.  Butler.  Black  Brook  comes  in  between  Concord  and  Bil- 
lerica, — the  Assabet  comes  in  in  Concord. 

Q.  One  branch  of  the  Assabet  is  the  brook  that  carries  Weth- 
erbee’s  mills  in  Acton,  is  it  not? 

A.  Yes,  sir. 

Q.  And  that  is  fed  by  a reservoir  known  as  Magog  Pond,  I 
think? 


Thomas  Talbot. 


401 


A.  I believe  it  is. 

Q.  Then  you  come  to  another  reservoir  up  at  Maynard’s,  don’t 
you? 

A.  Maynard’s  is  on  the  main  stream. 

Q.  Wetherbee’s  is  on  the  brook  that  comes  in  at  Concord,  just 
about  where  the  new  prison  is,  isn’t  it? 

A.  I am  not  sure  ; there  is  a brook  comes  in  near  the  new 
State  prison,  but  I am  not  certain  whether  that  is  the  one  or  not. 
Warner’s  mill  is  on  it. 

Q.  How  large  is  the  Maynard  reservoir,  on  the  main  branch? 

A.  I don’t  know,  sir. 

Q.  The  Maynard  works  are  pretty  large  works,  are  they  not? 

A.  Yes,  sir. 

Q.  Fed  from  a reservoir  flowing  a considerable  number  of  acres? 

A.  I suppose  so.  I am  not  informed  exactly  about  it.  I un- 
derstand he  has  a large  reservoir.  He  runs  also  by  steam  — uses 
steam  power  largely. 

Q.  But  there  is  a very  considerable  reservoir? 

A.  So  I am  informed  ; I think  so ; I don’t  know  of  my  own 
knowledge. 

Q.  Then  above  that  there  are  still  other  reservoirs? 

. A.  There  is  a reservoir  in  Marlboro’ ; whether  it  is  filled  now-a- 
days  or  not,  I don’t  know. 

Q.  One  made  by  the  city  of  Boston  ? 

A.  Yes,  sir  ; I am  not  sure  whether  it  is  in  use  now  or  not.  It 
was  in  use  and  got  out  of  order ; whether  it  has  been  made  secure 
or  not,  I don’t  know. 

Q.  On  the  Assabet,  and  on  the  brook  which  is  called  the  Na- 
shoba,  there  are  several  dams  and  manufactories? 

A.  Yes,  sir. 

Q.  To  begin  at  the  bottom  : there  is  Warner’s,  near  where  it 
empties  into  the  Assabet ; then  Wetherbee’s  ; then  the  lead-pencil 
manufactory ; then  the  slate-pencil  manufactory ; and  then  Rob- 
bins’ mill? 

A.  I don’t  know  about  that ; I am  not  informed  as  regards  all 
those  mills  ; I know  there  are  a good  many. 

Q.  You  have  been  at  Magog  pond,  haven’t  you? 

A.  Yes,  sir. 

Q.  It  is  a pretty  large  sheet  of  water,  isn’t  it? 

A.  Yes,  sir. 

Q.  About  how  many  acres  ? 

A.  I have  heard,  but  I don’t  remember  ; I should  say  500  or  600. 

Q.  And  the  water  is  raised  in  that  pond  by  a reservoir? 

A.  Yes,  sir. 

Q.  How  do  you  get  the  height  of  the  dam  at  your  place? 

A.  I have  had  it  measured. 

Q.  Have  you  got  that  measurement? 

A.  No,  sir ; under  the  ordinary  stage  of  water  in  the  summer,  a 
low  stage  of  water,  it  is  11  feet.  In  winter,  it  runs  a little  less. 

Q.  In  the  spring,  are  you  considerably  troubled  with  back- 
water? 

A.  Yes,  we  have  back-water  in  the  spring. 


402 


Charles  P.  Talbot,  et  al. 


Q.  You  are  more  troubled  with  back-water,  than  you  are  with 
too  little  water? 

A.  We  are  are  never  troubled  so  but  what  we  can  run  speed. 
I have  never  seen  the  time,  until  last  spring,  that  we  have  had  to 
stop  our  woollen-mill,  for  back-water. 

Q.  But  it  diminishes  speed  very  much  sometimes,  don’t  it. 

A.  No,  sir. 

Q.  Do  you  mean  that  j^ou  run  all  your  mills  at  speed  ? 

A.  Our  woollen-mills  run  at  speed. 

Q.  How  is  it  with  regard  to  the  other  mills? 

A.  The  other  mills  are  checked  somewhat.  Our  head  is  so  fix- 
ed that  we  can  keep  it  up,  and  when  the  water  rises  we  can  hold 
it;  consequently,  we  gain  some  head,  as  well  as  lose  back-water, 
though  not  a full  gain. 

Q.  You  have  been  at  no  substantial  outlay  for  water-power,  ex- 
cept to  put  in  your  wheels,  to  use  it,  since  you  bought  it,  have  you? 

A.  We  have  repaired  the  dams,  raised  the  canal,  and  improved 
our  bulk-heads  ; taken  out  the  wooden  bulk-heads,  and  put  in  stone 
and  cement. 

Q.  Then,  putting  in  bulk-heads  to  your  dam,  and  making  them 
permanent,  putting  in  your  wheels,  and  making  the  necessary  re- 
pairs, have  been  all  your  expenditures  for  your  water-power,  have 
they  not? 

A.  Yes,  sir  ; largely  so. 

Q.  The  raising  of  the  canal,  was  to  raise  the  bank  on  one  side 
to  prevent  a possible  overflow  in  the  winter? 

A.  Yes,  sir,  to  make  it  secure  ; to  keep  up  the  head. 

Q.  To  keep  up  the  head  in  the  winter. 

A.  Yes,  sir. 

Q.  How  many  feet,  in  the  winter,  have  you  seen  the  water  run- 
ning over  3^our  dam,  or  in  the  summer,  in  a freshet? 

A.  Well,  I don’t  know  as  I can  state,  positively ; somewhere 
about  four  feet,  I should  sa}'',  the  highest. 

Q.  Does  the  Concord  river  keep  up  for  a very  considerable  time 
in  freshets  ? 

A.  Yes,  sir  ; it  usually  falls  slowly. 

Q.  What  part  of  the  year  is  the  water  running  over  your  dam? 

A.  Well,  generally,  when  we  are  not  using  it. 

Q.  You  are  always  using  it? 

A.  Well,  I mean  Sundays. 

Q.  Leave  out  Sundays?  No,  you  may  put  that  in  now.  When 
you  shut  down  at  night,  does  the  dam  usually  run  over  Sunday? 

A.  Yes,  sir. 

Q.  Now,  what  part  of  the  year  does  the  water  run  over  your 
dam  ? 

A.  Well,  I should  say  that  it  runs  over  some  part  of  the  time 
— probably  nine  or  ten  months  in  the  year. 

Q.  What  part  of  the  year  does  it  run  overall  the  time?  How 
much  of  the  year,  on  the  average,  does  it  run  over  all  the  time? 

A.  Well,  I should  think,  in  all  probability,  about  eight  months. 
On  an  average  about  eight  months. 

Q.  The  Concord  is  a pretty  constant^stream,  is  it  not? 


Thomas  Talbot. 


403 


A.  Yes,  sir;  in  the  winter  season  it  runs  veiy  close;  some- 
times it  don’t  run  over  the  dam. 

Q.  That  is  rather  due  to  the  ice  than  a want  of  water,  is  it 
not? 

A.  Oh,  it  is  due  to  the  freezing  of  the  water,  I suppose. 

Q.  It  freezes  solid  at  the  fordway  frequently,  doesn’t  it? 

A.  Oh  no,  sir.  Sometimes  in  the  winter  we  run  very  close, 
and  Mr.  Faulkner  had  to  run  by  steam  a year  ago. 

Q.  Have  you  any  record  of  it? 

A.  No,  sir. 

Q.  You  have  never  kept  any  water  record  there  at  all? 

A.  No,  sir. 

Q.  When  it  is  a certain  distance  below  the  top  of  the  bolt, 
neither  you  nor  Mr.  Faulkner  can  run,  by  your  agreement,  until 
it  fills  up. 

A.  We  can  run. 

Q.  But  you  can  only  take  an  alaquot  portion  of  the  water? 

A.  We  can  only  take  a certain  amount. 

Q.  How  much  is  that  amount  ? 

A.  It  has  been  estimated  at  about  400  cubic  feet  of  water  a 
second. 

Q.  And  when  do  you  begin  to  be  restricted  to  that  amount  ? 

A.  Well,  in  the  past,  we  have  never  made  any  very  fixed  rule 
about  it. 

Q.  What  is  the  rule  in  your  deed  ? 

A.  The  deposition  that  was  put  in  yesterday  was  in  the  deed 
when  we  deeded  to  Mr.  Faulkner  ; the  reservation  was  in  that 
deposition. 

Q.  You  were  restricted  to  that  amount  when? 

A.  When  the  water  is  three-quarters  of  an  inch  below  the  top 
of  the  bolt. 

Q.  When  the  water  is  three-quarters  of  an  inch  below  the  top 
of  the  bolt,  then  you  can  only  use  the  water  that  will  pass  through 
the  gates  in  the  deposition  ? 

A.  Yes,  sir. 

Q.  Then  you  may  go  on  using  that  amount  of  water,  and  Mr. 
Faulkner  must  stop? 

A.  Yes,  sir. 

Q.  When  the  water  is  above  that,  you  can  use  as  much  as  you 
please,  and  he  too? 

A.  No  ; his  deed  limits  him  to  57.3  cubic  feet  a second. 

Q.  He  can  only  use  57  cubic  feet  in  any  event? 

A.  Yes,  sir. 

Q.  And  those  were  substantially  the  old  canal  mill-rights,  on 
your  side,  and  what  the  canal  sold  to  others  before  you  bought, 
on  the  other  side? 

A.  I don’t  remember  the  precise  conditions  of  the  canal  deed  ; 
what  it  covered  precisely.  The  limit  in  the  deed  to  Mr.  Faulkner 
is  the  limit  as  it  was  in  1833  and  1834 ; I don’t  remember  what  it 
was. 

Q.  Yes,  sir  ; but  your  restruction  is  substantially  what  the  old 
canal  mills  was  in  1833  and  1834? 


404 


Charles  P.  Talbot,  et  al. 


A.  What  was  used  by  the  canal  corporation  in  1833  and  1834  ; 
what  they  had  a right  to  use  in  their  mills. 

Q.  Not  taking  into  account  what  they  had  a right  to  use  in 
their  canal  ? 

A.  No,  sir  ; not  in  the  deed  to  Mr.  Faulkner. 

Q.  So  that  the  way  the  rights  stand  is  this  : when  the  water  is 
three-quarters  of  an  inch  below  the  top  of  the  bolt  you  can  use  the 
amount  of  water  which  ran  through  the  old  canal  mills  in  1833-34, 
as  ascertained  by  Wilson’s  deposition  ; at  that  time  Faulkner  can- 
not use  any.  When  it  is  above  that  point  on  the  bolt  you  can  use 
all  the  water,  including  that  which  the  Middlesex  canal  used  in 
their  canal  and  on  their  wheels  both,  and  Faulkner  can  use  57.3 
cubic  feet? 

A.  We  can  use  all  the  water  that  runs  in  the  stream  if  we  please. 
The  Middlesex  canal  was  not  running  at  that  time  ; it  was  closed, 

Q.  So  I 'understand.  My  question  and  your  answer  amount  to 
the  same  thing,  if  I understand  it.  When  }^ou  say  you  have  ex- 
pended some  $400,000  there,  how  much  of  it  has  been  expended 
on  the  acid  works,  which  need  no  water  for  power? 

A.  Some  less  than  $40,000  ; I don’t  remember  precisely.  Be- 
tween $35,000  and  $40,000,  I think.  It  takes  water  out  of  the 
river,  and  it  is  all  connected  with  our  dyewood  works.  We  regard 
one  as  useful  to  the  other,  and  if  the  dye  works  were  destroyed 
the  chemical  works  would  go  with  them. 

Q.  Why? 

A.  Because  we  should  regard  one  business  as  necessary  to  sustain 
the  other. 

Q.  You  take  your  water  out  of  the  river  to  make  your  acid  of, 
and  that  is  all  you  want  of  the  water  in  the  acid  works,  is  it  not? 

A.  No  power  ; boilers,  and  that  is  all. 

Q.  You  have  had  two  sets  of  acid  works,  haven’t  you  ? 

A.  Yes,  sir. 

Q.  Does  that  amount  cover  the  cost  of  both  ? 

A.  No,  sir,  it  does  not. 

Q.  Did  vou  include  the  cost  of  both  in  your  estimate  of 
$400,000? 

A.  No,  sir. 

Q.  How  much  of  the  $400,000  is  machinery? 

A.  I can’t  tell  you  without  figuring. 

Q.  Substantially? 

A.  It  would  be  an  estimate  ; I should  say,  at  least  $130,000  ; I 
don’t  positively  remember  ; we  did  not  separate  it. 

Q.  Am  I correct  in  supposing  that  the  $400,000  is  the  amount 
of  your  construction  account? 

A.  Substantially;  construction,  land,  and  property  connected ; 
buildings,  you  know  ; dwelling-houses. 

Q.  How  much  is  in  the  form  of  dwelling-houses? 

A.  That  I cannot  tell  you  without  looking.  We  own  nearly 
all  our  own  tenements. 

Q.  How  much  is  your  property  taxed  for? 

A.  That  I don’t  remember. 

Q.  About  how  much  ? 


John  Gibbs. 


405 


A.  I really  cannot  tell  you.  I have  not  seen  the  tax-list  for 
years ; for  several  years,  at  least.  I have  not  returned  a tax-list 
for  some  years,  and  the  assessors  tax  what  they  think  best. 


John  Gibbs,  sworn . 

Q.  (By  Mr.  Abbott.)  You  were  a witness  called  here  before,  I 
believe? 

A.  Yes,  sir. 

Q.  And  you  worked,  as  you  told  us,  a long  time  at  the  Saxon- 
ville  mills? 

A.  Yes,  sir  — since  the  fall  of  1830.  I left  in  1865  or  ’66. 

Q.  During  all  that  time,  as  I understood  you  to  say,  No.  3 mill 
was  run  by  water? 

A.  Yes,  sir. 

Q.  You  stated  before,  I think,  that  the  old  breast-wheel  was 
sixty  horse-power? 

A.  No,  sir. 

Q.  What  was  it? 

A.  I don’t  know  what  the  breast-wheel  was. 

Q.  When  was  the  turbine-wheel  put  in? 

A.  I could  not  tell  you  when  No.  3 turbine-wheel  was  put  in. 
It  was  years  after  I went  there. 

Q.  About  how  long  after? 

A.  I think  Mr.  Carter  put  in  that  wheel  somewhere  about  1861 ; 
at  the  time  when  they  made  their  connection. 

Q.  How  many  horse-power  was  that  wheel  ? 

A.  About  eighty  or  ninety  horse-power. 

Q.  How  large  an  amount  of  power  was  used  in  that  mill  while 
you  were  there,  at  the  lowest  and  dryest  times  ? 

A.  Constant  use  in  that  mill,  about  fifty. 

Q.  What  other  water  was  used  — with  reference  to  washing 
and  scouring? 

A.  They  used  what  water  they  wanted  for  washing  and  scour- 
ing in  the  basement  of  No.  4,  where  it  was  nearly  all  done,  — 
washing  and  scouring  of  the  cloths  and  rinsing  worsted  yarn. 

Q.  Now  was  there  another  wheel  in  what  is  called  the  machine- 
shop  constantly  in  use? 

A.  There  was ; a small  turbine-wheel  of  about  15^-power. 

Q.  Whether  that  was  always  in  use? 

A.  Yes,  sir. 

Q.  Now  tell  me,  during  the  dryest  times,  as  near  as  you  could 
approximate  to  it,  how  many  horse-power  would  be  constantly  in 
use? 

A.  We  always  ran.  No.  3,  which  would  be  about  50-horse- 
power, and  the  machine-shop  ran  by  water,  which  would  be  about 
15,  making  about  65.  To  the  best  of  my  judgment,  I should 
think  in  the  basement  there  were  two  large  rinsing-tubs,  four  feet 
deep,  with  their  two  large  wash-tubs  ; I don’t  know  the  dimensions 
of  those ; they  were  quite  long ; ten  feet  or  more ; I should 
think  that  they  used  75  or  80-horse-power  of  water  in  all ; it 


406  Charles  P.  Talbot,  et  al. 

was  all  the  time  in  washing ; used  No.  3 in  washing  and  in 
rinsing. 

Q.  And  that  at  the  dryest  times  of  the  year  ? 

A.  Yes,  sir,  at  the  dryest  times  of  the  year,  and  at  all  times. 

Q.  Making  ten  or  fifteen  horse-power  in  washing  ? 

A.  Yes,  sir. 


Cross-Examination • 

Q.  (By  Mr.  Butler.)  Fifty  in  the  No.  3 mill,  fifteen  in  the 
machine-shop,  and  about  ten  horse-power  for  washing  ? 

A.  I should  think  more  than  ten  horse-power  for  washing  and 
scouring  purposes. 

Q.  Under  what  head  did  they  let  the  water  in  for  washing? 

A.  They  took  it  from  the  canal  under  No.  2,  I think. 

Q.  Under  what  head  was  it? 

A.  Well,  I think  the  fall  of  No.  2 mill,  is  about  twenty-one  feet, 
and  this  must  be  certainly  from  five  to  eight  feet  lower,  set  in 
behind  and  down  the  hill. 

Q.  Five  to  eight  feet  lower  than  No.  2 mill? 

A.  Yes,  sir.  I should  think  so. 

Q.  And  how  large  an  extent  was  the  opening  pipe  which  they 
let  into  the  tub  ? How  large  was  the  orifice  ? 

A.  I could  not  tell  — not  being  closely  connected  with  that 
departmemt. 

Q.  You  have  given  us  an  idea  of  the  horse-power.  I want 
to  get  at  what  means  you  have  of  knowing.  If  you  did  not  know 
how  large  a hole  the  water  came  out  of,  how  could  you  tell  ? 

A.  Well,  it  is  close  work  always  and  requires  a great  deal  of 
water. 

Q.  How  large  a hole  did  it  come  out  of? 

A.  I could  not  tell  you. 

Q.  What  sort  of  pipes  were  they  ? 

A.  Iron  pipe,  I think. 

Q.  How  many  inches? 

A.  I never  saw  them.  I could  not  tell  you. 

Q.  Did  you  ever  see  the  orifice  of  them  at  all  ? 

A.  I don’t  remember  that  I did  of  the  pipes.  I have  seen  the 
boxes  into  which  the  water  flowed. 

Q.  How  large  was  the  outlet  of  the  boxes  out  of  which  the 
water  flowed  ? 

A.  I could  not  tell.  I never  measured  them.  • 

Q.  Give  your  judgment.  I want  to  get  the  means  by  which  you 
make  up  your  judgment.  How  large  a hole  did  the  water  flow 
out  of? 

A.  Well,  I cannot  give  you  my  judgment  on  that  because  it  is  a 
thing  I don’t  know. 

Q.  How  did  the  water  get  out  of  these  tubs.  Did  it  go  from 
one  to  the  other? 

A.  No,  sir.  It  would  be  dirty  water  then,  and  it  would  be  of 
no  use. 

Q.  Do  you  say  there  would  be  two? 


John  Gibbs. 


407 


A.  There  were  two  rinsing-tubs  for  worsted.  There  were  four 
in  all,  — and  two  scouring-tubs. 

Q.  Now,  how  large  an  aperture  did  the  water  run  out  of  in  each 
of  these  tubs  ? 

A.  I could  not  say. 

Q.  Was  it  a foot? 

A.  I could  not  say  whether  it  was  a foot  or  one  inch? 

Q.  Did  it  run  out  of  an  aperture  in  the  tub  somewhere  when 
they  got  through? 

A.  When  they  got  through  it  did  by  hoisting  a gate,  and  that 
was  all. 

Q . Did  it  run  all  the  time,  or  did  they  fill  up  the  tub  and  then 
stop  for  the  water  to  wash  their  wool,  and  then  let  it  off? 

A.  In  the  yarn-tub  I think  it  did,  but  in  the  scouring-tub  it  did 
not  run  all  the  time. 

Q.  Now,  can  you  give  me  any  idea  how  large  a hole  it  ran  out 
of  in  either  of  the  tubs,  whether  one  inch  or  one  foot?  You  don’t 
know  ? How  then  do  you  get  at  the  amount  of  water  that  was  used, 
in  your  judgment? 

A.  Well  from  being  partially  acquainted  with  their  scouring 
and  rinsing  apparatus,  &c. 

Q.  How  many  millions  of  gallons  a day  do  you  suppose  ran 
through  those  four  tubs  ? 

A.  I could  not  tell  you. 

Q.  Was  it  one  million  or  five? 

A.  I could  not  say.  I could  not  state  it  at  any  point. 

Q.  Was  it  half  a million  or  ten  millions? 

A.  I could  not  tell  you. 

Q.  Well,  give  us  your  best  judgment,  by  which  you  made  up 
the  horse-power,  how  many  millions  of  gallons  ran  there  ? 

A.  Well,  perhaps  I might  state  it  at  a million  gallons  a day  ; it 
would  be  only  a rough  calculation. 

Q.  It  is  the  same  calculation  upon  which  you  fixed  it? 

A.  Yes,  sir. 

Q.  I observe  that  Mr.  Simpson  reserved  a million  and  a half 
gallons  in  the  act? 

A.  Yes,  sir. 

Q.  Should  you  think  it  was  more  than  that  ? 

A.  Well,  I could  not  say. 

Q.  Well,  state  in  your  judgment,  the  [same  as  you  have  testi- 
tified  to  here  under  oath.  In  your  judgment,  do  you  believe  it  was  . 
more  than  a million  and  a half  gallons  a day? 

A.  I should  not  say  that  it  was. 

Q.  How  much  horse-power  will  a million  and  a half  gallons  per 
day  over  a 30-foot  fall  make  ? 

A.  Well,  I don’t  know.  I could  not  tell  you. 

Q.  Would  it  make  one  horse-power? 

A.  I could  not  tell  you  anything  about  it. 

Q.  Would  it  make  half  of  one? 

A.  I should  not  set  it  at  anything,  because  I don’t  know. 

Q.  Then  if  you  do  not  know,  and  you  think  there  was  a million 
gallons  per  day,  and  do  not  know  how  many  horse-power  that  will 
make,  why  do  you  say  ten  horse-power? 


408 


Chakles  P.  Talbot,  et  al. 


A.  Well,  that  is  my  best  judgement. 

Q.  I wanted  to  know  if  you  bad  any  judgment  on  the  subject. 
A man  may  give  the  best  he  has,  and  still  not  have  any  to  give. 
Now,  can  you  give  any  idea  how  many  horse-power  a million  gal- 
lons would  give  over  a one-foot  fall? 

A.  No.  sir  ; I am  not  posted  in  that,  sir. 

Q You  would  be  a little  surprised  to  find  that  it  would  not  give 
one  horse-power? 

A.  Yes,  sir. 

Q.  If  it  should  turn  out,  upon  calculation,  that  it  did  not  give 
one  horse-power,  you  would  come  to  the  conclusion  that  your 
judgment  in  all  you  have  been  testifying  about  in  respect  to  horse- 
power was  ali  wrong,  would  you  not? 

Ac  I eannot  answer  the  question. 

Q.  Very  well ; then  it  is  calculated  that  a million  gallons  a sec- 
ond, not  a million  gallons  a day , over  a one-foot  fall,  will  give  one 
third  of  a horse-power? 

A.  Well,  I am  not  posted  in  that.  I could  not  have  answered 
it. 

Q.  Now  assuming  that  to  be  correct,  how  many  horse-power  do 
you  think  those  washing  tubs  give. 

[No  answer.] 

Mr.  Butler.  I will  not  trouble  you  any  farther. 

Mr.  Abbott.  Do  you  mean,  Gen.  Butler,  that  a million  gallons 
a second  over  a one-foot  fall  would  give  one-third  of  a horse  power? 

Mr.  Butler.  Yes,  sir. 

Mr.  Somerbt.  Oh,  no,  sir. 

Mr.  Abbott.  About  75  gallons  a second  would  give  a horse- 
power over  a one-foot  fall. 

Mr.  Butler.  I assume  what  I say  to  be  true  — that  it  requires 
a million  gallons  a day  to  give  one-third  of  a horse-power,  and  it 
must  run  every  second. 


Edward  O.  Holmes,  sworn . 

Q.  (By  Mr.  Abbott.)  Where  do  you  reside? 

A.  In  Malden. 

Q.  What  is  j^our  business,  and  where? 

A.  My  business  is  in  Boston.  I am  a mill-wright. 

Q.  How  long  have  you  been  so  engaged? 

A.  For  twenty  years. 

Q.  Has  your  business  been  to  put  in  water-wheels  and  steam 
power  ? 

A.  Yes,  sir. 

Q.  For  how  long? 

A.  For  the  past  fifteen  or  twenty  years. 

Q.  And  to  a considerable  extent? 

A.  Yes,  sir. 

Q.  So  that  you  are  an  engineer,  and  also  practically  engaged  in 
the  business  of  putting  in  water-wheels  and  steam-power? 

A.  Yes,  sir. 

Q.  And  you  have  been  so  for  fifteen  years  ? 


Edward  O.  Holmes. 


409 


A.  Yes,  sir. 

Q . Have  you  made  an  estimate  of  the  amount  of  water,  by  the 
old  gates  in  1833  and  1834,  by  George  O.  Wilson’s  deposition? 

A.  Yes,  sir. 

Q.  Won’t  you  turn  to  it? 

A.  (Witness  finds  it.)  The  new  mill,  by  the  deposition  of 
George  O.  Wilson,  would  be  three  gates  sixteen  by  sixteen,  that 
is,  sixteen  inches  square,  under  a seven  and  one-half  feet  head ; 
three  gates  fourteen  by  ten,  same  head  ; one  gate  fourteen  by  four- 
teen, under  the  same  head  ; and  one  nine  by  ten,  under  the  same 
head. 

Q.  How  much  do  they  give  you  per  second,  — how  many  cubic 
feet,  take  them  all  ? 

A.  14,182.2  cubic  feet  per  minute. 

Q.  All  the  gates,  in  the  new  grist-mill,  under  the  deposition,  as 
numerated  here? 

A.  Yes,  sir. 

Q.  How  many  per  second  ? 

A.  236.3  cubic  feet  per  second. 

Q.  Now,  take  the  saw-mill,  by  the  deposition,  and  give  us  the 
dimensions  of  the  gate  that  you  estimated  bn,  so  that  we  can  com- 
pare them. 

A.  One  gate  thirty-six  by  eight,  under  six  feet  head ; one  gate 
fourteen  by  twelve,  under  five  and  one-half  feet  head  ; one  gate 
seventy-one  by  five,  under  a seven  feet  head ; one  gate  seventy- 
two  by  five,  under  a seven  feet  head ; one  gate  fourteen  by  twelve, 
under  a five-  and  one-half  feet  head. 

• Q.  What  is  the  result  there  ? 

A.  11,277.18  cubic  feet  per  minute. 

Q.  Now  give  it  per  second. 

A.  187.7. 

Q.  Put  them  together,  the  grist-mill  and  the  saw-mill. 

A.  405.52  cubic  feet  per  second. 

Q.  You  have  given  now  the  gates  that  you  have  estimated 
upon,  and  the  head  under  which  you  have  estimated  it,  by  the 
deposition  ? 

A.  Yes,  sir. 

Q.  Now,  did  you  get  from  Mr.  Talbot  the  discharge  from  his 
wheel,  by  its  present  use,  as  he  gave  them  to  you? 

A.  Yes,  sir. 

Q.  Taking  it  as  he  gave  it  to  you,  will  you  give  us  the  amount 
of  the  number  of  feet  per  second  which  they  described,  — the  six 
wheels,  — the  whole?  Thus,  there  are  six  wheels  that  he  has  in 
all  that  you  estimated  upon? 

A.  Eight  wheels. 

Q.  Give  us  the  six  of  the  dye-wood  wheels  ? 

A.  I have  them  all  together,  and  not  separated.  The  number 
of  cubic  feet  per  second  discharged  by  all  the  wheels,  is  420.5  for 
eight  wheels.  That  is  eleven  feet  four.  That  was  given  me. 

Q.  Give  us  the  number  of  cubic  feet  per  second  over  a one-foot 
fall  that  is  required  to  make  a horse-power  ? 

A.  Eight  and  eight-tenths  feet  per  second  ; five  hundred  and  odd 
feet  per  minute. 


410 


Charles  P.  Talbot,  et  al. 


Q.  That  is  the  theoretical  horse-power  ? 

A.  Yes,  sir. 

Q.  Practically,  in  applying  it  to  a wheel,  how  much  out  of  the 
theoretical  quantity  do  you  get? 

A.  I seldom  figure  more  than  seventy-five  per  cent.,  although 
eighty  and  even  eighty-five  is  claimed.  I think  seventy-five  is  fair. 

Q.  That  is,  you  get  effective  power  practically  seventy-five  per 
cent,  of  this  theoretical  power,  if  you  get  hold  of  it? 

A.  Yes,  sir. 

Q.  Instead  of  getting  one  horse-power  by  8.8  cubic  feet,  you  get 
practically  three-quarters  of  a horse-power  ? 

A.  Yes,  sir. 

Q.  I want  to  ask  you  what  is  the  horse-power  of  the  two  wheels 
in  the  brick  woolen-mills? 

A.  There  is  one  eighty-inch  Boyden  wheel,  92.28  power ; one 
Swaine  wheel,  six  feet  diameter,  95.55  power. 

Q.  Making  a little  less  than  200. 

A.  Yes,  sir. 

Q.  Is  that  the  theoretical  power? 

A.  That  is  the  actual  power. 

Q.  Making  of  the  two,  how  many? 

A.  187.73. 

Q.  Now,  sir,  did  you  go  up  to  examine  for  the  purpose  of  seeing 
how  steam  could  be  applied  to  be  used  in  the  woollen  mills  ? 

A.  Yes,  sir,  I did. 

Q.  More  than  once? 

A.  I went  up  twice. 

Q.  Did  you  make  a careful  examination? 

A.  I did,  sir. 

Q.  Will  you  give  us  the  result  of  the  cost  of  putting  a steam- 
engine,  say,  in  the  first  place,  of  four  hundred  horse-power?  But 
before  I come  to  that,  I want  to  ask  you  another  question.  Taking 
this  supposed  case : if  you  have  a mill  requiring  two  hundred 
horse-power  to  run  it,  and  you  are  obliged  to  run  eighty-four  of  it, 
taking  the  theoretical  division  — eighty-four  of  it  by  steam  and  the 
balance  by  water,  — I want  to  ask  you  whether  eighty -four  horse- 
power in  steam  would  actually  in  practice  supply  the  loss  of  this 
eighty-four  horse-power  taken  from  the  water-power,  or  whether 
you  would  have  to  have  a large  amount  in  order  to  get  a smooth 
even-working  mill? 

A.  Yes,  sir ; I should  want  a much  larger  amount  than  the  actual 
power  needed. 

Q.  I want  to  ask  you  whether  there  is  anj^  means  of  fixing 
exactly  what  that  may  be  ? 

A.  No,  sir ; I don’t  know  of  any  rule  more  than  would  sug- 
gest itself  by  practical  knowledge  in  such  matters. 

Q.  Have  you  ever  had  any  experience  in  such  matters? 

A.  Yes,  sir ; I have  had  experience  in  that  matter. 

Q.  What  was  the  result  where  you  undertook  to  supply  simply 
the  loss  of  water-power  by  the  wheel  ? 

A.  The  result  would  be  in  practice  and  irregular  motion. 

Q.  Would  it  produce  any  effects  on  machinery? 


Edward  O.  Holmes. 


411 


A.  Yes,  sir;  where  the  power  was  transmitted  by  gearing, 
there  is  great  difficulty  in  taking  out  the  cogs.  The  cogs  are 
broken  by  the  irregular  motion.  Where  it  is  transmitted  by  gear, 
it  is  very  difficult  to  get  them  to  stand. 

Q.  Has  that  been  within  your  own  personal  knowledge? 

A.  Yes,  sir. 

Q.  Now  take  this  case  : suppose  80  horse-power  was  taken  from 
a mill  of  190  water-power,  and  you  were  obliged  to  supply  that 
deficiency  with  steam  ; how  much  steam  would  you  want  in  order 
to  get  the  same  regular  motion  in  that  mill  as  if  you  had  all  water- 
power ? 

A.  I say  there  would  be  no  regular  rule ; but  I would  put  in 
100  horse-power  — certainly  as  much  as  that,  — from  that  to  125. 

Q.  In  that  way  you  would  get  a more  even  motion  ? 

A.  Yes,  sir.  In  that  way,  I would  get  a more  even  motion. 
Steam  would  regulate  quicker  than  water,  and  the  effect  of  the 
large  balance-wheel  would  steady  the  motion  a good  deal. 

Q.  Give  us  the  estimate  you  made  of  the  expense  of  putting  in 
a 200  horse-power  engine.  Give  it  to  us  in  the  gross. 

A.  I put  the  whole  expense  of  putting  in  a 200  horse-power 
engine  at  $25,847.12.  That  putting  in  the  buildings,  boilers, 
shafting,  belting,  and  all  necessary  fixtures  to  attach  to  the  main 
shaft. 

Q.  Was  that  made  from  personal  examination? 

A.  Yes,  sir. 

Q.  Will  you  tell’  us  the  expense  of  putting  in  a 100  horse-power 
engine  in  the  same  place,  covering  the  same  items  ? 

A.  The  estimate  cost  of  100  horse-power,  (I  am  taking  now 
only  the  engine),  the  shafting  and  other  machinery  would  be  about 
the  same ; the  engines  and  boilers,  foundations  and  fixtures  would 
cost  $7,645.  The  buildings  would  be  but  a little  difference. 

Q.  Will  you  give  us  the  amount  of  buildings,  so  as  to  add  the 
whole  expense  of  the  100  horse-power  engine? 

A.  The  difference  would  be  simply  in  the  engine.  I can  give 
you  the  estimate  on  the  other  engine.  I will  give  you  200  horse- 
power estimated  from  the  same  data.  The  200  horse-power  would 
be  $12,650  in  engine  and  boiler  and  fixtures.  The  100  horse- 
power would  be  $7,645,  making  $5,005  difference.  The  cost  of 
100  horse-power,  including  the  buildings  and  everything,  would  be 
about  $20,000. 

Q.  Now  give  us  the  cost  of  an  80  horse-power  engine  figures 
from  the  same  data. 

A.  It  would  cost  $6,517. 

Q.  In  place  of  $12,650? 

A.  Yes,  sir. 

Q.  The  other  expenses  about  the  same  ? 

A.  The  buildings  would  be  reduced  somewhat.  The  boiler- 
house  would  not  be  as  much,  and  the  engine-house  would  not  be 
quite  as  large.  The  difference  would  not  be  very  great ; perhaps 
20  per  cent,  less  cost  on  the  buildings  all  through. 

A.  The  building  in  round  numbers  would  be  reduced  about  20 
per  cent? 


412 


Chakles  P.  Talbot,  et  al. 


A.  Yes,  sir. 

Q.  Then  it  would  make  $17,000  for  an  80  horse-power  engine. 
Now  have  you  had  occasion  to  estimate  the  cost  of  keeping  up  a 
horse-power,  say  in  the  neighborhoods  of  Boston  and  Billerica ; 
perpetually  maintaining  it,  reproducing  the  original  plant,  and 
keeping  it  up  ? What  would  be  the  cost  per  year  ? 

A.  Yes,  sir ; I have  had  occasion  to  go  into  that  many  times, 
and  have  figured  it  lately.  I have  figured  here  the  cost  of  main- 
tenance of  all  these  different-sized  engines  that  I have  enumer- 
ated. 

A.  I want  to  know  if  you  can  give  us  in  the  aggregate  the  cost 
per  year  for  a horse-power,  not  only  of  maintaining  it,  but  of  keep- 
ing it  running  and  keeping  it  going  forever? 

A.  I have  figured  the  cost  at  about  $115  for  a horse-power; 
running,  from  $110  to  $125.  Different  circumstances  and  different 
locations  will  alter  the  figures  somewhat. 

Q.  Take  the  location  at  Billerica  Mills.  What  would  be,  in 
your  judgment,  the  cost  of  a horse-power? 

A.  I should  think  somewhere  about  $110  by  steam. 

Mr.  Butler.  Is  that  including  or  excluding  the  plant? 

Mr.  Abbott.  This  includes  what  they  call  depreciation,  which 
means  reproducing  the  original  plant  forever. 

Q.  How  much  do  you  reckon  it  for  depreciation  — to  keep  it 
a-going? 

A.  Circumstances  alter  the  case  somewhat ; but  a fair  depreci- 
ation, taking  everything  into  the  account,  would  be  about  10  per 
cent. 

Q.  Reproducing  it  at  the  end  of  ten  jTears,  it  would  be  a little 
over  that,  then.  What  did  you  reckon  your  coal  at,  at  Billerica, 
in  coming  to  this  conclusion  ? How  much  per  ton  ? 

A.  I reckon,  $8  per  ton  as  a fair  average.  It  is  very  low 
at  the  present  time. 

Q.  Did  you  make  an  estimate  upon  Mr.  Falconer’s  ? 

A.  Yes,  sir. 

Q.  To  put  in  a 54  horse-power  engine,  what  would  it  cost ; all 
the  expenses? 

A.  The  cost  of  engine,  boilers,  steam  connection  &c. 

Q.  (Interrupting.)  How  much  more  would  54  horse-power  cost 
than  50? 

A.  Well,  perhaps  5 per  cent.  It  does  not  vary  much  ; but  still 
it  would  enlarge  the  C3dinder  somewhat.  I put  the  cost  of  engine 
and  boilers  at  $3,795.  That  includes  engine,  boiler,  setting, 
piping  and  fixture. 

Q.  You  say  54  horse-power,  would  cost  about  5 per  cent, 
more  ? 

A.  Yes,  sir. 

Q.  Now  did  }rou  make  an  estimate  of  the  necessary  expense  of 
putting  such  an  engine  up  at  Falconer’s  ? 

A.  Yes,  sir;  I figured  it. 

Q.  Was  that  inside  of  the  mill  or  outside? 

A.  That  was -inside  of  the  present  mill;  where  it  is  now 
located. 


Edward  O.  Holmes. 


413 


Q.  Well,  wliat  would  be  the  expense  of  putting  in? 

A.  I figured  on  the  buildings,  and  they  are  building  a new 
boiler-house,  — about  $1 ,200  for  the  buildings. 

Q.  Which  would  be  added  to  that? 

A.  Yes,  sir  ; outside  of  the  present  location. 

Q.  Then  in  your  judgment  is  that  enlargement  necessary,  when 
you  run  six  months  in  the  jrear  bj7  steam  ? 

A.  Well,  I should  not  consider  that  fifty  horse-power  engine 
was  large  enough  to  do  the  work  there,  or  a fifty-four  horse-power 
engine  either.  To  substitute  a lift}7  horse-power  engine  for  a fifty- 
four  horse-power  water-wheel,  I should  figure  for  some  surplus. 
I should  not  figure  less  than  a sixty-horse-power  engine  to  sup- 
ply the  force  that  a fifty-four  horse-power  water-wheel  supplies. 
But  to  do  it  economically,  it  would  be  much  better  to  run  seventy- 
five  horse-power  than  to  reduce  it  to  sixty. 

Q.  What  would  be  the  cost  of  a seventy-five  horse-power 
engine  ? 

A.  That  is  what  I figured  upon  at  the  mill.  The  cost  of  that 
with  the  boilers  and  piping  necessaiy  to  connect,  and  other  fixtures, 
and  the  main-belt,  which  I put  in  there,  which  would  be  necessary 
to  connect  on  to  the  main-shaft  of  the  water-wheel.  — Those  fig- 
ures I placed  at  $5,750. 

Q.  That  is  for  a seventy-five  horse-power  engine,  and  the 
building  the  same? 

A.  Yes,  sir ; the  building  would  be  about  the  same  in  either 
case. 

Q.  Can  you  give  us,  sir,  the  expense  of  running  by  the  day  a 
50  horse-power  engine? 

A.  Yes,  sir. 

Q.  You  figure  coal  at  $8.00  a ton,  I believe  you  said? 

A.  Yes,  sir. 

Q.  Give  it  without  the  interest  and  insurance. 

A.  Without  the  interest  and  insurance,  it  would  be  $12.60. 

Q.  How  much  for  a 54  horse-power  engine  ? 

A.  It  would  be  increased  about  5 per  cent.,  perhaps. 

Q.  That  would  be  about  $13.50? 

A.  Yes,  sir. 

Q.  Now  tell  us  what  that  $12.60  includes. 

A.  It  includes  fuel,  engineer,  no  fireman,  the  oil  and  waste  for 
cleaning  the  engine,  carting  away  the  ashes,  and  extra  time  that  it 
takes  more  or  less  always  of  extra  men  cleaning  out  the  flues  and 
connections  of  the  boiler,  which  amounts  to  something  each  year. 

Q.  Do  you  only  reckon  one  per  cent. 

A.  One  per  cent.  only.  The  engineer  ought  to  be  capable  of 
running  this  50  horse-power  engine  without  a fireman. 

Q.  Take  the  repairs  ? 

A.  They  are  nothing  but  the  ordinary  repairs.  There  is  noth- 
ing for  depreciatipn. 

Q.  What  are  the  ordinary  repairs? 

A.  I have  ^neglected  to  figure  the  repairs.  I see  that  in  this 
other  one  I had  it,  but  — or  most  of  them  ; but  by  some  means,  I 
have  neglected  it  here.  Ordinary  repairs  on  a 50  horse-power  en- 


414  Charles  P.  Talbot,  et  al. 

gine,  if  figured  by  the  da}7,  would  be  about  twenty-five  cents  per 
day. 

Q.  That  would  add  to  a 50  horse-power  engine’s  expense  so  as 
to  make  it  $12.85  per  day. 

A.  Yes,  sir. 

Q.  You  would  give  it  at  twenty-five  cents  a day? 

A.  Yes,  sir,  that  would  be  a very  low  estimate. 

Q.  Then  you  add  25  per  cent,  for  a 54  horse-power  engine  in- 
stead of  one  of  50  horse-power  ? 

A.  Yes,  sir.  In  regard  to  the  gates,  I take  it  as  it  was  given  — 

Q.  (Interrupting.)  That  I understand  includes  simply  the  daily 
expense  of  running  a 50  horse-power  and  a 54  horse-power  engine, 
without  any  reckoning  for  depreciation,  interest,  or  insurance? 

A.  I did  not  add  in  the  insurance  ; no,  sir. 

Q.  Now  I want  to  ask  you  one  further  question.  Whether  if 
you  run  an  engine  half  of  the  year,  or  a portion  of  the  year,  the 
depreciation  would  be  greater  or  less  in  practice  than  if  you  ran 
the  whole  of  the  time,  supposing  that  it  be  properly  kept  — engine 
and  boilers. 

A.  Well,  sir,  there  would  not  be  much  difference  really.  That 
is,  if  you  should  run  certain  portions  of  the  year  only,  the  boilers 
would  probably  depreciate  as  much  from  lying  still  as  they  would 
in  running,  — that  is  if  we  get  good  soft,  fresh  water. 

Q.  Then  take  your  engine,  state  whether  practically  there  would 
be  any  difference  in  running  it  the  whole  of  the  time  or  only  run- 
ning it  a portion  of  the  time?  You  say  yours  is  ohly  used  part  of 
the  time  ? 

A.  Well,  sir,  there  would  not  be  much  difference,  practically. 


Cross-examination . 

Q.  (By  Mr.  Butler.)  Now  we  will  go  back  to  the  matter  of 
gates  : You  said  you  calculated  some  of  the  gates  under  a 7|  feet 
head,  and  some  under  another? 

A.  Yes,  sir. 

Q.  Where  did  you  take  the  head  to  be  ? 

A.  I took  the  head  as  they  gave  it  to  me  in  the  deposition,  and 
with  the  full  head.  I took  it  at  the  bottom  of  the  gate  or  I sup- 
pose so  ; I don’t  know. 

Q.  That  is  you  assume  the  estimate  from  the  gate  ? 

A.  I assumed  it  to  be  7J-  feet  a head.  I cannot  say  as  to  the 
error. 

Q.  Where  did  you  get  your  data  to  go  upon  ? You  assume  that 
it  is  7£  feet  a head  from  the  bottom  of  the  gate  ? 

A.  Well,  I suppose  rightly  it  should  be  figured  at  the  centre  to 
get  an  average. 

Q.  Where  did  you  get  it? 

A.  I figured  from  a 7£  feet  head.  The}7  did  not  tell  me  whether 
it  was  the  bottom  of  the  gate  or  the  centre. 

Q.  You  figured  that  so  much  water  would  run  through  a certain 
aperture  in  a certain  time  under  a 7|  feet  head,  or  a 12-inch  gate. 


Edward  O.  Holmes. 


415 


Now  did  yon  figure  it  running  under  a 7f  feet  head  at  the  bottom, 
centre,  or  top  of  the  gate  ? 

A.  No,  sir  ; I did  not  figure  it  at  the  bottom.  I should  assume 
that  it  was  from  the  centre  of  the  gate,  with  the  7 £ feet  head,  — 
assuming  that  that  was  the  way  the  deposition  might  read. 

Q.  Leave  out  the  deposition.  Now,  what  calculation  did  you 
make? 

A.  If  you  should  tell  me  to  figure  it  at  7£  feet  a head,  I should 
figure  it  from  the  centre  of  the  gate.  I figured  this  with  a 7 £ feet 
head,  supposing  it  was  measured  in  this  way.  I don’t  know  how 
it  is  measured. 

Q.  But  you  yourself  assumed  that  it  was  measured  from  the 
centre  of  the  gate? 

A.  Yes,  sir. 

Q.  Have  you  got  that  calculation  ? 

A.  No,  sir.  I have  not  got  the  figures. 

Q.  I wish  you  would  give  them  to  me.  Have  you  got  them  any- 
where ? 

A.  Well,  I may  find  them.  I don’t  know. 

Q.  Would  it  take  a considerable  time  to  do  it, — having  taken 
on  gate  ? 

A.  Yes,  sir. 

Q.  When  you  leave  the  stand,  won’t  you  please  sit  down  and 
figure  it  for  me  ? I would  like  to  know  just  how  you  figure  it  ? 

A.  Yes,  sir. 

Q.  What  kind  of  a gate  do  you  assume  it  to  be? 

A.  I don’t  know,  I’m  sure.  It  might  have  been  an  iron  gate, 
and  it  might  have  been  a wooden  gate.  I suppose  when  they  were 
both  open,  it  would  not  alter  the  case  much,  wnether  it  were  an  iron 
gate  or  a wooden  one. 

Q.  I was  referring  to  the  shape  or  form,  and  the  manner  of  hoist- 
ing or  opening  ? 

A.  I supposed  it  was  a square  gate,  which  was  measured  at  its 
full  capacity, — which  had  been  drawn  up. 

Q.  Did  you  take  into  account  at  all  the  state  of  the  aperture, 
whether  it  went  through  a wide  aperture  or  not  ? 

A.  No,  sir ; I did  not  know  whether  it  was  3 or  4 inches,  or 
whether  it  was  one  inch.  Of  course  the  deeper  the  water,  the  more 
the  friction  or  resistance. 

Q.  And  it  was  sometimes,  as  in  the  case  of  the  old  mill,  opened 
by  raising,  as  I now  illustrate,  by  being  drawn  up  ? 

A.  I took  it  to  be  a perpendicular  gate,  but  I had  no  means  of 
knowing. 

Q.  All  these  matters  to  which  I have  been  calling  your  atten- 
tion would  make  a very  considerable  difference  in  the  figuring  ? 

A.  Anything  that  makes  resistance  to  water,  or  friction,  and  re- 
tards the  flow,  of  course  has  its  effect. 

Q.  Take  simply  what  is  said  in  the  deposition,  that  there  were 
so  many  gates,  of  such  a size,  under  a 7\  feet  head,  is  there  any 
very  considerable  accuracy  to  be  got  from  that  description  of  the 
flow  of  water  through  those  gates  ? 

A.  I don’t  know  why  we  should  not  come  at  it  exactly. 


416 


Chakles  P.  Talbot,  et  al. 


Q.  You  could  tell  easily  the  largest  amount  of  water  which  could 
flow  through  such  a gate  ? 

A.  Yes,  sir. 

Q.  And  that  you  took,  I suppose? 

A.  Yes,  sir. 

Q.  But  you  make  no  deduction  for  any  obstruction  of  the  water, 
or  anything  which  would  reduce  that  maximum  ? 

A.  Nothing  towards  flowing  through  a wheel.  There  had  to  be 
a deduction,  because  there  is  theoretically  a certain  number  of 
cubic  feet  of  water  that  will  flow  through  an  inch  aperture.  Mul- 
tiplying by  that  coefficient,  would  give  us  the  amount  of  water  that 
would  flow  through  ordinarily. 

Q.  You  made  no  difference  for  disturbance  of  the  wheel? 

A.  I did  not  figure  the  wheel  at  all.  I assumed  there  was  no 
wheel  there,  and  that  the  gate  was  discharging  so  much  water. 

Q.  That  is  to  say,  what  theoretically  would  flow  through  an 
aperture  of  a given  size,  as  described  in  that  deposition,  if  it  was 
opened.  I am  not  criticising  your  method,  but  only  ask  you  what 
you  did.  Is  your  calculation  anything  more  than  the  amount  of 
water  that  would  flow  through  such  a hole,  under  such  a head, 
under  the  most  favorable  circumstances  ? 

A.  That  was  what  I figured,  sir, — on  what  water  would  discharge 
through  an  opening  of  a certain  size,  assuming  that  to  be  without 
restriction  of  the  water,  under  the  most  favorable  circumstances. 
I knew  what  the  wheels  were,  I think. 

Q.  What  deductions  did  you  make  for  an}7  obstructions  by  the 
wheel  ? 

A.  I figured  the  obstruction  to  the  water  I think  90  per  cent.  — 
nine-tenths  of  the  discharge.  I took  from  a formula,  what 
would  flow  under  that  head,  with  one  square  inch  of  water,  and 
multiplying  it  by  the  number  of  square  inches  of  the  gate,  and  then 
I took  nine-tenths  of  that  to  be  the  actual  discharge. 

Q.  That  is  to  say,  you  assume  that  I have  got  such  an  opening 
under  a seven  and  one-half  feet  head  ? 

A.  Yes,  sir  ; I assume  that  I have  got  such  an  opening  under  a 
seven  and  one-half  feet  head.  Now,  by  the  formula  which  I have 
used,  that  will  give  me  so  much  water.  Now  I assume  the  efficient 
force  of  the  wheel  to  be  nine-tenths  of  that.  I say  that  I multi- 
plied by  the  formula,  and  take  that  to  be  the  actual  discharge 
through  such  an  aperture. 

Q.  And  then  you  will  diminish  that  by  one-tenth  and  give  us 
that  result  ? Is  that  so  ? 

A.  That  is  what  I said  before  ; I took  nine-tenths. 

Q.  Now,  what  formula  did  you  use  ? 

A.  I consulted  several. 

Q.  What  one  did  you  use  ? 

A.  I think  I used  a formula  by  Mr.  Commissioner  Francis. 

Q.  That  undoubtedly  was  a good  one,  if  you  used  it ; but  did 
you  use  that  one? 

A.  I think  I did  ; I am  not  positive. 

Q.  After  you  get  your  calculation  made,  will  you  give  it  to  me 
bye-and-bye?  Now  I’ve  passed  to  the  use  of  water  and  steam  to- 


Edward  O.  Holmes. 


417 


gether.  Suppose  you  had  187  power  of  water-wheel,  — or  a water- 
wheel giving  187£  horse-power,  — and  you  were  obliged  to  supple- 
ment one-fifth  of  its  power  b}7  steam.  Suppose  that  one-fifth  of 
the  power  is  lost  for  some  reason,  and  you  have  got  to  supplement 
that  by  steam,  how  large  a steam-engine  would  be  put  in  ? 

A.  One-fifth  loss  would  be  about  38  horse-power  — calling  it  at 
190.  Now,  to  supply  that,  I should  put  in  a 60  horse-power 
engine. 

Q.  That  is,  one  that  was  rated  at  60  horse-power? 

A.  Yes,  sir. 

Q.  Now  using  a steam-engine  in  connection  with  a water-wheel, 
giving  38  horse-power,  which  runs  the  steadiest,  the  steam-engine 
or  a water-wheel,  under  a steady  head? 

A.  The  water-wheel  runs  a little  more  regular,  where  the  head 
is  steady,  because  we  have  in  the  steam  the  head  of  steam  varying 
constantly,  while  in  the  water-wheel  there  is  no  sudden  variation. 

Q.  Now,  which  would  you  allow  to  be  the  regulator,  in  such  a 
combination ; a 30  horse-power  engine,  and  the  balance  a water 
wheel,  both  running  together  at  187? 

A.  I should  rather  the  engine  should  regulate  the  water-wheel, 
because  in  such  case  I would  have  a very  heavy  balance  on  the 
engine.  I would  rather  regulate  by  the  engine,  — by  the  most  un- 
even power. 

Q.  But  having  an  even  power,  is  there  any  difficulty  in  appfying 
an  addition  of  38  horse-power? 

A.  Well,  I have  seen  practical  difficulties  in  putting  on  an  en- 
gine of  the  same  capacity  of  the  water-wheel. 

Q.  I am  not  dealing  with  the  same  capacity.  My  proposition 
is : — is  there  any  difficult}7  in  regulating  an  engine  that  had 
38  horse-power  out  of  187,  to  a steadily  running  water-wheel,  the 
two  together  making  up  187  horse-power? 

A.  Yes,  sir.  I think  there  are  practical  difficulties  there  — 
some. 

Q.  Anjdhing  that  the  science  of  steam-engineering  has  not 
overcome  ? 

A.  You  can  overcome  almost  anything  in  steam  engineering ; 
but,  practically,  I should  prefer  to  put  in  a larger  steam-engine  — 
60  horse-power. 

Q.  Then  having  a steam-engine  of  60  horse-power  to  give  you 
38  horse-power,  and  applying  that  to  a set  of  shafting  which  re- 
quire 187  horse-power,  the  difference  between  the  187  and  the  38, 
to  be  supplied  by  a water-wheel ; is  there  any  difficulty  in  uniting 
those  two  powers  ? 

A.  If  you  will  allow  me  to  explain: — in  the  60  horse-power 
engine  you  have  but  38  horse-power  to  supply,  at  any  rate,  and 
if  you  have  60  horse-power  to  supply  it  with,  T say  it  will  run 
steadier  with  [that  60  horse-power  than  it  would  if  you  were  run- 
ning the  engine  at  38. 

Q.  But  having  the  60  horse-power  engine  in,  to  supply  38  horse- 
power, and  having  a steadily  running  water-wheel  to  supply  the 
remainder,  up  to  187  water-power,  is  there  any  practical  difficulty 
in  running  those  two  together? 


418 


Charles  P.  Talbot,  et  al. 


A.  No,  sir,  there  would  not  be  any  practical  difficulty.  It 
would  be  better  to  run  the  38  horse-power  from  the  60  engine  than 
from  the  38. 

Q.  I agree.  But  having  the  60  horse-power  in  your  engine,  and 
having  got  the  balance  in  your  wheel,  is  there  any  difficulty  in  sup- 
plementing the  wheel  with  38  horse-power  out  of  the  60  horse- 
power engine  ? 

A.  There  is  no  difficulty  in  that,  if  it  is  transmitted  by  a belt. 
If  it  must  be  transmitted  by  gearing,  there  will  be  practical  diffi- 
culty. 

Q.  Now  if  you  were  to  put  in  an  engine  at  Billerica,  would  you 
transmit  the  power  by  a belt  or  by  gearing  ? 

A.  I should  by  belt  there. 

Q.  And  where  the  belt  is  used,  there  is  no  substantial  difficulty, 
is  there? 

A.  The  belt  cuts  his  basement  through. 

Q.  I am  leaving  that  out.  Now  I am  trying  to  get  the  power 
in  ; we  will  see  when  it  cuts  in  and  hurts  the  basement.  Answer 
the  question : is  there  any  practical  difficulty  in  supplementing 
water-power  with  steam-power  by  a belt. 

A.  No,  sir ; no  difficulty  in  transmitting  the  power  from  the 
engine  to  the  water-power  shaft  by  a belt. 

Q.  And  running  a 60  horse-power  engine,  supplying  38  horse- 
power would  be  quite  as  economical  as  it  would  if  you  only  run  a 
38  horse-power  by  itself,  would  it  not. 

A.  Yes,  sir.  The  maintenance  would  be,  I think,  as  economical ; 
that  is  my  theory  always. 

Q.  That  is  to  say,  if  you  yourself  had  to  run  a 38  horse-power 
engine  in  that  way,  as  a steadier,  you  would  prefer  a 60  horse-power 
engine  to  do  it,  as  a matter  of  economy? 

A.  Yes,  sir,  I should. 

Q.  What  do  you  mean  to  tell  us  is  the  least  amount  that  a man 
at  Billerica  could  let  10  horse-power  of  steam  for  where  he  was 
running  his  mill  by  steam  ? 

A.  If  he  were  to  let  10  horse-power  at  Billerica  from  an  engine, 
with  which  he  was  running  his  own  mill,  supposing  he  had  this  10 
horse-power  as  a surplus,  to  get  a fair  compensation,  a man  ought 
to  get  $125  to  $150  dollars  for  a horse-power,  allowing  the  balance 
over  the  cost  as  profit  from  $110 ; I should  give  $110  per  horse- 
power as  the  cost ; perhaps  it  would  be  $108,  giving  $15  per 
horse-power  profit.  I am  not  putting  in  the  element  of  rent  of 
the  shop,  how  much  he  ought  to  have  per  horse-power  on  the  shop. 
As  a surplus,  he  could  let  it  a little  cheaper  than  he  could  if  he 
was  making  it  at  his  own  cost. 

Q.  You  think  then,  that  every  horse-power  of  an  engine,  up  to 
200  horse-power,  costs  $110  a year  to  create  it? 

A.  The  larger  engine  would  be  a little  more  in  proportion  to 
what  a smaller  one  would  be.  I figured  on  80  horse-power,  I 
think. 

Q.  Do  3'ou  think  a man  cannot  make  80  horse-power  short  of 
$115  per  horse-power? 

A.  Somewhere  from  $110  to  $115. 


Edward  O.  Holmes. 


419 


Q.  Is  that  an  actual  cost  to  him? 

A.  It  depends  upon  the  engine  somewhat. 

Q.  Suppose  he  has  a good  engine.  I am  not  going  in  for  a bad 
one.  I want  to  know  if  you  testify  that  a man  cannot  produce  in 
Billerica  a horse-power  from  80  to  100,  or  from  75  to  80,  any- 
where along  there,  short  of  $110  to  $115  cost  per  horse-power? 

A.  I will  set  it  at  $110  per  horse-power,  taking  the  contingent 
expenses. 

Q.  It  will  cost  him  that,  and  he  ought  to  have  some  $10  above 
that  for  profit  ? 

A.  Yes,  sir. 

Q.  Which  would  cost  the  mill  to  make  a horse-power  at  Bil- 
lerica, or  we  will  say  upon  one  of  the  manufacturing  streets  of 
Boston,  how  much? 

A.  I don’t  think  there  would  be  much  difference.  You  would 
have  in  one  case  the  cost  of  the  water,  which  in  Boston  might 
compensate  for  the  increased  cost  of  coal  at  Billerica.  In  Boston 
we  have  to  pay  for  our  water,  but  in  Billerica  probably  there 
would  be  no  cost  but  the  pumping. 

Q.  Well,  now,  how  much  horse-power  do  you  suppose  is  let  in 
Boston  to-day  for  $100  per  horse-power  per  year? 

A.  I don’t  know  how  many  foolish  men  there  are  in  Boston. 

Q.  Of  course,  men  do  not  understand  their  interests  in  Boston 
very  well,  but  with  all  their  folly,  how  many  do  you  suppose  there 
are? 

A.  I will  say  that  very  few  men  in  Boston  know  what  the  cost 
of  a horse-power  is,  or  make  any  calculation  in  regard  to  it. 

Q.  But  they  mean  to  live  by  letting  power.  Don’t  you  know 
that  there  is  a large  amount  of  horse-power  in  Boston  that  is  sold 
at  the  rate  of  $100? 

A.  I am  not  aware  of  the  fact.  I have  been  letting  horse-power 
in  Boston  for  fifteen  years.  I have  never  let  any  for  that.  What 
1 let  for  is  $150. 

Q.  I mean  actual , not  nominal ? 

A.  Well,  that  is  actual  horse-power. 

Q.  How  much  do  you  let  to  any  one  individual  at  that  price  ? 

A.  Well,  we  have  one  printing-office,  I think,  that  takes  four  or 
five  horse-power.  The  power  is  divided  up  among  quite  a large 
number  of  tenants  ; and  a large  amount  of  the  power  is  taken  up 
in  the  transmission. 

Q.  How  much  is  your  engine  rated  at? 

A.  Our  engine  is  a 16-inch  cylinder. 

Q.  How  much  is  the  horse-power?  I don’t  care  about  the  size 
of  the  cylinder. 

A.  It  depends  upon  how  many  feet  we  carry. 

Q.  Pardon  me,  now  ; don’t  fence.  How  much  is  it? 

A.  Its  measurement  is  16  X 42,  and  it  is  rated,  I suppose,  at  80 
horse-power.  The  stroke  of  the  engine  is  42. 

Q.  IIow  many  tenants  do  you  let  that  to? 

A.  I will  say  that  I do  not  run  80  horse-power,  — let  it  or  run 
it.  I use  about  40. 


420 


Charles  P.  Talbot,  et  al. 


Q.  How  much  do  you  let  the  power  produced  by  that  engine  for  ? 
To  how  many  different  tenants  do  you  let  it  ? 

A.  If  you  will  allow  me  a few  minutes,  perhaps  I will  figure  it 
up.  I should  think  likely  there  would  be  about  ten  tenants. 

Q.  Where  is  that  building? 

A.  It  is  in  Hay  market  Square. 

Q.  Do  you  let  the  horse-power  independent  of  the  building? 

A.  Yes,  sir. 

Q.  How  much  do  you  let  to  any  one  man? 

A.  Well,  sir,  I don’t  know  that  I could  tell  you. 

Q.  What  is  the  largest  amount  that  you  remember  that  you  let 
to  an}r  one  man  ? 

A.  I think  about  six  horse-power. 

Q.  How  much  is  the  smallest  amount  to  any  one  man  ? 

A.  I think  we  run  down  to  about  three-fourths  of  a horse-power, 
nominal^.  We  don’t  figure  it  entirely  by  horse-power  in  letting. 
If  a man  wants  to  come  in  and  run  so  many  lathes  or  so  much 
machinery,  I say  to  him  that  I will  give  him  a three-inch  belt  for 
so  much. 

Q.  Now,  how  much  do  you  get  for  the  actual  horse-power  used? 

A.  I don’t  know,  sir.  I could  not  tell,  without  reference  to  our 
books,  how  much  we  did  get,  because  we  used  power  ourselves ; 
and  it  is  somewhat  in  this  way : — things  are  very  dull,  and  a man 
sa3rs,  “I  am  paying  you  a thousand  dollars  for  this  horse-power, 
and  now  I am  going  to  move  out  unless  I can  get  my  horse-power 
for  six  hundred  dollars.”  I say  to  him,  “ I would  rather  you 
would  stay  here  than  lose  you  as  a tenant.”  It  is  a very  difficult 
matter  to  figure  it  exactly. 

Q.  That  is,  you  would  rather  let  him  have  horse-power  at  $100, 
that  it  costs  you  $110  or  $115  to  make,  than  let  him  go.  You 
would  not  get  rich  if  you  had  a great  many  such  tenants,  would 
you? 

A.  They  would  not  all  operate  in  that  way,  perhaps.  We 
might  make  on  one  what  we  lost  on  another.  I would  make  my 
average  come  out  right  if  I could. 

Q.  What  is  the  establishment  that  you  carry  on  there? 

A.  We  manufacture  machinery,  gearing,  pulleys,  shafting,  and 
all  such  things. 

Q.  The  manufacture  of  machinery,  then,  is  your  business  ; and 
your  whole  horse-power,  so  far  as  you  are  concerned,  is  40  horse- 
power? 

A.  40  horse-power  is  what  we  are  using.  The  engine  is  larger 
than  that. 

Q.  Pray,  sir,  do  you  have  a separate  building  for  your  boiler? 

A.  No,  sir ; it  is  in  the  basement  of  the  building. 

Q.  What  would  be  the  fair  rent  of  your  building? 

A.  We  have  two  boilers,  and  run  but  one. 

Q.  What  is  a fair  rent  for  your  building? 

A.  We  do  not  own  any  building.  We  hire  our  building. 

Q.  What  do  you  pay  for  your  building? 

A.  I do  not  recollect,  exactly.  I could  not  tell  without  refer- 
ence to  our  books. 


Edward  O.  Holmes. 


421 


Q.  Well,  about  what? 

A.  We  rent  but  four  or  five  stores,  which  we  underlet.  I guess 
somewhere  about  $7,000  for  the  stores. 

Q.  I don’t  care  what  you  let  for  to  other  people.  What  do  you 
pay? 

A.  We  pay  and  then  underlet.  We  hire  the  building,  underlet 
the  room,  and  let  the  power,  which  we  make  ourselves. 

Q.  Where  is  the  building? 

A.  The  building  is  on  Haymarket  square.  It  is  what  is  called 
“ Haymarket  block.” 

Q.  Now,  in  transmitting  small  powers  in  that  way,  is  there  not 
a third  lost,  at  least? 

A.  There  is  great  loss  in  transmitting.  There  is  the  friction 
of  the  shafting. 

Q.  Is  there  not  a third  lost? 

A.  I have  never  made  that  calculation.  I should  think  in  the 
transmitting  of  power,  actually,  there  might  be  something  like 
that  lost  — 25  per  cent. 

Q.  In  breaking  it  up  into  small  powers,  of  course,  all  powers 
have  to  be  transmitted  through  belts  or  gears,  and  you  have  fric- 
tion for  that.  How  much  is  actually  lost  in  that  way? 

A.  I am  not  able  to  tell  the  percentage,  if  you  come  to  that 
point. 

Q.  Have  you  ever  carried  on  any  other  business  elsewhere? 

A.  Well,  I have  been  there  in  Haverhill  street  and  Haymarket 
square  as  long  as  since  1861. 

Q.  That  has  been  your  business  since  1861  ? 

A.  Yes,  sir. 

Q.  You  don’t  build  steam-engines? 

A.  No,  sir ; we  repair,  and  repair  and  put  up  our  own.  We 
don’t  make  them. 

Q.  Suppose  you  are  running  an  engine  of  200  horse-power,  and 
you  are  using  100  horse-power  of  it,  is  there  any  other  expense 
in  making  25  horse-power  more,  other  than  the  coal  you  use? 

A.  No,  sir ; the  expense  above  the  coal  would  be  very  slight, 
if  any. 

Q.  How  many  pounds  of  coal  do  you  give  to  a horse-power? 

A.  Well,  allowing  for  all  contingencies,  and  making  an  outside 
average,  I should  allow  about  4^  pounds.  It  may  run  to  four,  and 
may  run  even  lower  than  that,  on  a first-class  engine,  and  where 
everything  is  favorable. 

Q.  Let  us  say  4 pounds  of  coal  for  a horse-power.  For  how 
long? 

A.  per  hour.  We  figure  a day  at  ten  hours. 

Q.  That  would  be  45  pounds  of  coal  per  day  per  horse-pow  r? 

A.  Yes,  sir,  — at  ten  hours. 

Q.  And  for  300  working  days  in  a year? 

A.  Well,  307  or  308,  I think.  We  generally  reckon  seven  or 
eight  holidays.  Legal  holidays  we  are  not  obliged  to  run. 

Q.  And  yet  you  think  if  a man  ran  an  engine  at  100  horse- 
power, and  let  10  more,  it  would  cost  him  $110  a horse-power  ex- 
tra. Is  that  so  ? 


422 


Charles  P.  Talbot,  et  al. 


A.  I don’t  think  I made  such  a statement. 

Q.  I thought  so. 

A.  I am  taking  a general  average  of  the  whole  power  of  an 
engine. 

Q.  Pardon  me.  I put  the  exact  question  to  you,  what  Mr. 
Talbot  could  afford  to  let  ten  horse-power  for  in  his  mill,  if  he  was 
running  an  engine  of  a certain  size,  and  had  ten  horse-power  sur- 
plus, and  you  thought  he  could  not  let  it  short  of  $125  a horse- 
power, and  that  it  would  cost  him  $110  a horse-power, — if  I under- 
stood you  right. 

A.  Yes,  sir  ; the  balance  would  be  a profit. 

Q.  And  you  put  in  the  difference  between  $110  and  $125,  for 
his  profit? 

A.  It  would  be  so  much  more  profit  if  it  only  cost  him  the  coal. 

Q.  You  say  that  it  will  onty  cost  him  the  coal? 

A.  He  would  not  be  obliged  to  employ  another  engineer. 

Q.  We  understand  that  it  would  not  cost  any  more.  Explain 
why  it  would  not.  I believe,  however,  I will  not  trouble  you  any 
more.  I will  ask  you,  though,  to  give  me  that  calculation  on  one 
gate.  I don’t  care  for  but  one  of  them. 

Mr.  Abbott.  He  will  give  it  to  you. 


Redirect . 

Q.  (By  Mr.  Abbott.)  I want  to  know  whether  those  apertures 
are  calculated  to  discharge  the  ordinary  quantity, — whether  there 
is  anything  in  them  that  would  interfere  with  the  discharge  of  the 
ordinary  quantity  ? 

A.  I take  them  16  X 16*  There  is  nothing  more  than  ordinary. 
If  they  are  put  in  under  favorable  circumstances,  and  by  any  com- 
petent mill-wright,  they  ought  to  be  able  to  do  that. 

Q.  Take  the  next  saw-mill ; state  whether  those  are  ordinarily 
well  fitted  to  discharge? 

A.  Yes,  sir;  these  are  the  customary  sized  gates. 

Q.  Then  you  told  me  that  you  measured  so  as  to  get  your  head 
from  the  centre  of  the  gate? 

A.  I assumed  it  to  be  the  centre. 

Q.  Whether  that  is  the  ordinary  and  usual  method  ? 

A.  I think  that  would  be  the  usual  method,  — taking  it  from 
the  centre  of  the  gate. 

Q.  At  any  rate  you  took  it  from  the  centre  of  the  gate.  Now,  I 
want  to  ask  you  what  would  be  the  cubic  feet  per  minute  discharged 
by  a six-inch  pipe,  under  a 22-feet  head. 

A.  I don’t  know  as  I know  exactly  what  the  area  is.  I should 
think  (without  going  through  the  formula)  that  the  area,  by  a 
rough  calculation,  would  be  about  30  inches ; and,  under  a 22-feet 
head,  it  would  be  about  15  cubic  feet  per  second,  or,  I think,  about 
900  cubic  feet  per  minute,  — assuming  the  area  to  be  thirty  inches. 

Q.  That  would  be  in  the  rough? 

A.  Yes,  sir ; I think  that  would  be  about  the  discharge. 


Charles  Faulkner. 


423 


Charles  Faulkner,  sworn. 

Q.  (Ify  Mr.  Abbott.)  You  are  a son  of  Francis  Faulkner,  or 
Squire  Faulkner,  as  we  used  to  call  him  ? 

A.  Yes,  sir. 

Q.  You  were  born  in  Billerica  ; 

A.  Yes,  sir. 

Q.  And  lived  there  till  when  ? 

A.  I lived  there  till  1827,  and  then  came  to  Boston. 

Q.  And  are  there  at  the  present  time  ? 

A.  Yes,  sir. 

Q.  You  and  your  brother  James  are  owners  of  these  mills,  and 
have  been  since  the  death  of  your  father? 

A.  Yes,  sir. 

Q.  What  was  the  date  of  that  ? 

A.  He  died,  sir,  in  1843. 

Q.  Your  land,  as  you  told  us  before  you  were  sworn,  extends  up 
the  Middlesex  Canal,  on  the  east  side,  and  so  on  down  for  half  a 
mile  or  less  ? 

A.  Yes,  sir,  below  the  fall. 

Q.  The  old  “ Mears’  saw-mill,”  as  I understand  you  to  say,  then 
stood,  a part  of  it,  where  your  present  mill  stands? 

A.  Yes,  sir.  That  was  the  basin  that  supplied  that  mill.  It 
came  within  15  feet  of  the  old  mill. 

Q.  This  “ Mearsnsaw-mill  ” was  on  the  east  side  of  the  river? 

A.  Yes,  sir. 

Q.  And  the  Forge,  and  the  “ Little  brick-factory?” 

A.  Yes,  sir.  That  was  upon  the  east  side,  near  the  bridge? 

Q.  And  your  father’s  factory  was  on  the  east  side  ? 

A.  Yes,  sir. 

Q.  So  that  all  that  w'hich  came  to  your  father  originally,  his 
original  deed,  went  to  Mr.  Mears’,  and  was  afterwards  sold,  part 
to  Mr.  Talbot,  and  part  to  your  father  ? All  these  were  on  the  east 
side? 

A.  Yes,  sir. 

Q.  How  much  did  your  manufacturing  establishment  cost  you? 

A.  $125,000. 

Q,  How  much  is  its  present  value,  in  your  judgment?  How 
much  will  you  sell  it  for  in  cash  ? 

A.  Manufacturing  property  now  is  a little  unsettled.  I think 
that  property  is  so  situated  now  that  I think  we  could  sell  it  for 
what  it  cost  us. 

Mr.  Butler.  I object  to  that.  There  are  a great  many  things 
a man  has  got  from  his  father  that  he  would  not  sell  at  the  market 
value. 

Q.  Take  the  market  value.  What  do  you  think  it  would  sell 
for? 

A.  I think  it  would  sell  for  $125,000. 

Q.  What  is  your  capital  used  with  it? 

A.  Our  books  in  January  showed  $269,000  as  working  capital. 

Q.  Sometimes  it  is  used  and  sometimes  not  all  of  it? 

A.  It  depends  upon  the  condition  of  the  business,  sir. 


424 


Chakles  P.  Talbot,  et  al. 

Cross-examination . 

Q.  (By  Mr.  Butler).  How  long  have  you  run  your  mills,  in  a 
dry  time,  by  the  present  engine? 

Mr.  Abbott.  I am  going  to  put  that  in  by  the  books  that  I told 
you  about. 

Mr.  Butler.  I want  to  come  to  that  now. 

Q.  I don’t  mean  the  exact  number  of  days.  How  long,  since 
you  have  been  running  your  mill,  have^you  run  it  in  a dry  time  by 
the  present  engine  ? 

A.  The  present  engine  was  put  in  ten  years 'since,  — in  1866. 

Q.  What  is  the  rated  horse-power? 

A.  I am  not  able  to  say. 

Q.  About  what? 

A.  I should  have  to  take  it  from  what  I have  heard  others  say, 
sir.  I have  not  practical  knowledge  of  the  power  of  an  engine ; 
I should  suppose  in  the  neighborhood  of  50  horse-power,  from  what 
I have  heard. 

Q.  I suppose  you  want  to  put  in  a practically  proper  and  good 
engine,  according  to  the  best  skill? 

A.  We  have  alwa}7s  managed  to  be  as  prudent  as  possible,  and 
put  it  in  at  the  lowest  possible  expense.  Some  seasons,  not  want- 
ing it  at  all,  we  put  in  as  small  a one  as  we  thought  would  be 
economical. 

Q.  Will  you  tell  me  what  it  cost? 

A.  I cannot  tell  you,  sir  ; although  I have  seen  the  bill  recently. 
It  has  passed  from  me.  The  engine  was  built  at  the  Atlantic 
Works.  I have  a bill  of  it,  and  I happened  to  see  it  lately. 

Q.  Have  you  found  any  difficulty  in  running  your  mill  from 
your  engine? 

A.  Yes,  sir. 

Q.  How  many  sets  of  cards  have  you  ? 

A.  Seven. 

Q.  Flannels? 

A.  Yes,  sir. 

Q.  About  as  heavy  work  as  the  ordinary  woollen  work? 

A.  Yes,  sir. 

Q.  As  the  ordinary  flannel  work? 

A.  Yes,  sir. 

Q.  Is  not  flannel  work  about  as  heavy  as  any  woollen  work  ? 

A.  Cassimere  mills  require  more  power  per  set. 

Q.  And  flannel  less  than  blankets? 

A.  I don’t  know,  sir,  about  that. 

Q.  At  a rough  estimate,  sir,  (we  will  get  at  it  from  the  books 
directly)  what  portion  of  the  time  do  you  run  your  mill  by  steam  ? 

A.  It  depends  entirely  upon  the  season,  sir.  Some  seasons  we 
have  been  two  or  three  years  without  wanting  steam  a day,  and 
then,  again,  in  a dry  season,  we  have  had  to  run  60  or  70  or  80 
days. 

Q.  How  many  years,  within  the  last  ten,  have  you  not  used 
steam  at  all? 

A.  Three,  certainly,  sir,  we  have  not  used  steam-power  at  all. 

Q.  Had  you  any  engine  in  before  that? 


Charles  Faulkner. 


425 


A.  Yes,  sir ; previous  to  this  engine  we  had  a smaller  one  in  ; 
but  that  was  for  the  old  building.  When  that  addition  was  built, 
we  were  obliged  to  put  in  a larger  one. 


Re-direct. 

Q.  (By  Mr.  Abbott.)  You  say  you  had  seven  sets  of  woollen 
machinery.  How  many  sets  is  your  room  built  for? 

A.  Eight  sets. 

Q.  You  have  used  seven  for  what  time? 

A.  For  ten  years. 

Q.  Since  the  time  you  had  this  engine? 

A.  Yes,  sir. 

Q.  You  say  you  have  had  trouble.  Has  it  been  from  your 
engine  breaking  down? 

A.  Yes,  sir. 

Q.  Is  that  for  the  last  two  years  ? 

A.  Yes,  sir. 

Q . I understood  you  to  say,  in  answer  to  Gen.  Butler,  that  you 
were  as  economical  as  possible,  and  put  in  the  smallest  one  possible? 

A.  Yes,  sir  ; we  went  to  the  smallest  possible  expense  that  we 
could  get  along  with  always. 

Q.  Can  you  give  us  the  cost  of  your  engine? 

A.  I cannot,  without  referring  to  the  papers  ? 

Q.  Will  you  send  it,  and  let  me  know? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  It  was  put  in  in  1860,  then? 

A.  Yes,  sir.  All  I can  give  you  will  be  the  bill,  from  the  At- 
lantic works,  of  what  it  cost  delivered  at  the  station  in  Boston. 
The  transportation,  setting,  etc.,  I have  not  got.  I simply  have 
what  it  cost  us,  delivered  at  the  Lowell  railroad. 

Mr.  Abbott.  I put  in  now  a memorandum  made  from  the  books 
(which  books  I will  put  in  directly)  of  the  time  that  steam  was 
used  each  year.  Mr.  Faulkner  wants  to  have  the  exact  facts  shown 
as  they  are.  I am  going  to  put  in  the  books  by  the  next  witness, 
who  kept  two  years  of  them. 

The  Witness.  This  paper  which  I now  hand  to  the  counsel,  is 
an  abstract  I made  from  the  time-books,  and  went  over  them  very 
carefully  myself. 

The  paper  presented  by  Mr.  Faulkner  was  as  follows : — 

Memorandum  of  Days  J.  R.  Faulkner  & Co.  have  used  Steam. 

1865.  In  Aug.,  19  days,  and  Sept.,  15  days;  for  the  year,  34 

1866.  Used  no  steam  ; water  enough. 

1867.  “ “ 

1868.  “ “ 

1869.  In  Sept.,  2 days;  Oct.,  1 3 

1870.  In  Aug.,  27;  Sept.,  26  ; Oct.,  14;  Nov.,  2 . . 69 

1871.  In  June,  9;  July,  20  ; Aug.,  27;  Sept.,  24  ; Oct.  9 ; 

Nov.,  3 92 

1872.  In  July,  9 ; Aug.,  13 22 


426 


Charles  P.  Talbot,  et  al. 


1873.  In  June,  12  ; July,  25  ; Aug.,  15J  ; Sept.,  19  ; Oct.  5J  . 77 

1874.  In  Aug.,  6 ; Sept.,  25  ; Oct.,  24  ; Nov.,  24  ; Dec.,  14  . 93 

1875.  In  Jan. ,15;  Feb.,  21  ; March,  14  ; July,  2;  Aug.,  6 

Sept.,  10 ; Oct.,  5 73 


463 

1876.  In  June,  2 ; July,  26  ; Aug.,  14  ; Sept., 

When  the  water  failed,  June  28th,  1876,  we  did  not  run  the  mill 
until  we  had  water  again,  August  1st,  that  time.  28  days  is  in- 
cluded above. 

Cross-examination , resumed. 

Q.  (By  Mr.  Butler.)  I should  like  to  ask  you  a few  questions 
upon  this  paper.  In  1866  you  used  no  steam.  You  were  rebuild- 
ing in  that  season,  were  you  not? 

A.  Yes,  sir,  we  built ; but  our  mill  did  not  stop  at  all  in  build- 
ing. There  were  four  sets  in  that  building,  and  then  we  built  on 
a building  in  which  were  placed  four  sets  more. 

Q.  In  1867,  were  you  running  full? 

A.  Yes,  sir. 

Q.  And  in  1868? 

A.  Yes,  sir. 

Q.  In  1869  you  had’three  days? 

A.  Three  days  only  ; two  in  September,  and  one  in  October. 

Q.  In  1870  you  had  in  August  how  many? 

A.  Twenty-seven  days. 

Q.  And  twenty-six  in  September? 

A.  Yes,  sir ; and  fourteen  in  October,  and  two  in  November ; 
making  in  all  sixty-nine.  In  1871,  in  June,  nine  days;  July, 
twenty  days  ; August,  twenty-seven  days  ; September,  twenty-four 
days  ; October,  nine  days  ; and  November,  three  days  ; making  in 
all  ninety-two. 

Q.  And  in  1872  you  had  nine  days  in  July,  and  thirteen  in 
August;  making  in  all  twenty -two? 

A.  Yes,  sir. 

Q.  In  1873  you  had  seventy-seven  days? 

A.  Yes,  sir. 

Q.  In  1874  you  had  ninety-three  days? 

A.  Yes,  sir.  In  that  year  there  was  a dry  winter,  and  we  ran 
it  in  December. 

Q.  In  1875  you  had  seventy-three  days? 

A.  Yes,  sir. 

Q.  And  in  the  present  year,  up  to  the  present  time,  you  have 
had  how  many? 

A.  In  June,  two  days;  in  July,  twenty-six;  in  August,  four- 
teen ; and  in  September,  twenty-six. 

Q.  Have  you  any  memorandum  back  of  1865? 

A.  I have  not,  sir. 

Q.  Was  there  any  kept  at  the  mill? 

A.  There  probably  was,  sir. 

Q.  It  is  in  these  books. 

[No  answer. j 


Richard  Faulkner. 


427 


Direct  Examination,  resumed. 

Q.  (By  Mr.  Abbott.)  I want  to  ask  you  how  you  are  enabled 
from  the  books  to  ascertain,  away  back  to  1865,  the  number  of 
days?  Explain  it. 

A.  [Producing  book.]  There  is  the  record,  sir.  [Explains  the 
record  to  the  counsel  and  the  commissioners.]  That  runs  all  the 
way  through  those  ten  years.  The  abstract  is  taken  from  those 
books. 

Mr.  Abbott.  One  person  acts  as  engineer  and  fireman,  and 
whenever  the  engine  is  run  there  is  a “ dot”  made,  and  he  is  paid  ex- 
tra for  those  days  ; and  that  system  goes  through  the  whole  since 
1865.  There  are  those  dots  against  this  man’s  name  every  day 
that  the  engine  is  run.  Faulkner  says  he  has  gone  through  it,  and 
ascertained  it  for  each  year,  and  given  in  this  abstract  the  number 
pf  days  run  in  each  month. 

Q.  Do  you  recollect  ever  having  to  run  in  the  winter,  except  in 
1865,  in  January  and  Februarj'? 

A.  I don’t  know.  It  is  very  unusual. 

Mr.  Abbott.  Please  send  for  any  books  you  have  at  the  mill 
which  will  show  it  previous  to  1864. 

Q.  (By  Commissioner  Russell.)  The  winter  you  ran  by  steam 
was  December,  1874,  and  January,  1875? 

A.  Yes,  sir. 

Q.  So  that  they  worked  from  the  15th  of  December,  every  day 
they  did  work,  up  to  the  24th  of  February,  by  steam? 

A.  Frequently  there  have  been  times  that  we  did  not  think  it 
expedient  to  produce  all  the  goods  we  could  in  the  mill ; and  that 
was  one  of  the  years.  January,  1875,  I presume  the  book  will  show 
that  we  were  running  three-fourths  or  two-thirds  of  the  time,  and 
let  the  engine  run  so  many  days  in  the  week.  Now,  really  to  get 
at  the  time,  all  those  days  should  be  added  which  are  blank,  be- 
cause if  we  had  used  it  so  much  power  would  have  been  missing. 
But  those  days  are  skipped  over  because  we  were  running  three- 
fourths  or  two-thirds  of  the  time,  as  the  case  might  be.  Some- 
times there  have  been  two  or  three  days  in  the  week ; some- 
times we  work  four  days  and  sometimes  five,  according  to  the 
quantity  that  we  wished  to  produce.  The  number  of  days  by 
steam  would  have  been  more,  had  business  warranted  our  running 
all  the  time. 

Q.  Do  you  remember  whether  your  neighbor  Talbot  was  in  the 
same  condition? 

A.  I don’t  know,  sir. 

Mr.  Butler.  The  only  value  that  I can  see  in  this  statement  is, 
that  it  shows  that  they  ran  by  steam  just  as  much  before  we  took 
the  water  as  afterwards. 

Richard  Faulkner,  sworn. 

Q.  (By  Mr.  Abbott.)  You  are  grandson  of  old  Squire  Faulkner  ? 

A.  Yes,  sir. 

Q.  For  the  last  two  years  you  have  been  superintendent  of  the 
mill? 

A.  Yes,  sir. 


428 


Charles  P.  Talbot,  et  al. 


Q.  You  kept  this  little  book  for  the  last  two  years? 

A.  Yes,  sir. 

Q.  What  is  the  name  of  the  fireman? 

A.  Michael  McNulty. 

Q.  Explain  the  meaning  of  these  “ dots”  against  his  name. 

A.  Whenever  we  ran  by  steam  we  “ dotted”  his  time. 

Q.  For  what  reason  ? 

A.  We  pa}'  him  extra  pay  for  those  days.  That  has  been  carried 
on  during  twelve  years,  and  the  book  kept  by  myself.  I found  the 
books  kept  in  the  same  way  previously. 

Q.  The  man  who  kept  those  books  is  where  ? 

A.  Well,  he  is  in  the  country  — up  in  Vermont. 


Cross-examination  waived. 

Mr.  Abbott.  Send  us  all  the  books  you  can  find  in  the  mill  that 
have  any  such  record. 

Q.  (By  Mr.  Abbott.)  Was  the  record  kept  previous  to  that 
time  in  the  same  way? 

A.  I think  the  record  goes  back  in^the  same  way  to  1853. 

Mr.  Butler.  I wish  you  would  run  over  those  books  and  make 
a calculation,  the  same  as  your  father  has  done,  say  so  much  steam 
for  every  month  in  the  year,  and  so  many  days,  and  send  it  down 
to-morrow  morning. 

Mr.  Abbott.  I believe  that  is  all  our  testimony. 

Mr.  Butler.  Have  you  completed  that  calculation  I requested 
you  to  make,  Mr.  Holmes? 

Mr.  Edward  O.  Holmes.  Yes,  sir. 


Edward  0.  Holmes,  recalled. 

The  Witness.  I produce  the  calculation  requested  by  General 
Butler,  of  the  discharge  of  one  gate,  16  X 16  — the  grist-mill. 
It  shows  the  amount  discharged  from  the  gate  16  X 16,  under  a 
7±  feet  head,  as  2,103.55  cubic  feet  per  minnte.  It  is  as  follows  : 
(reads.) 

Calculation  by  Edward  0.  Holmes  of  discharge  of  one  gate. 

“ 1 gate  16  by  16  = 256  square  inches  opening. 

“ 256  X 9.13,  being  cubic  feet  discharged  per  square  inch  per 
minute,  under  7J  feet  head  = 

256  X 9.13  = 2337.28 
2337.28  X -9  = 2103.55 
.9 

2103.552,  being  discharge  from  gate  16  by  16, 
under  7\  feet  head,  per  minute.” 
256 
9.13 
768 
256 
2304 


2337.28.” 


Testimony  of  Jonathan  Manning. 


429 


Mr.  Butler.  I want  to  put  in  the  report  of  the  commissioners 
on  this  river,  from  the  “ Report  of  the  Joint  Special  Committee  on 
Flowage,”  etc. 

[Adjourned  to  Wednesday,  October  4th,  at  9.30  o’clock  A.M.,  at 
which  time  the  Commissioners  met  and  further  adjourned  to  Mon- 
day, October  9th,  at  11.30  o’clock  A.M.] 


TESTIMONY  OF  WITNESSES  TAKEN  BEFORE  A LEG- 
ISLATIVE COMMITTEE  CONTAINED  IN  HOUSE 
DOCUMENT  100,  IN  THE  YEAR  1860. 

Jonathan  Manning,  being  duly  sworn , deposed , upon  examination 
by  Mr.  Child,  as  follows:  — 

I reside  in  Littleton,  and  have  resided  there  for  fifty-seven  years. 
My  age  is  eighty-four  years. 

I worked  for  the  proprietors  of  the  Middlesex  Canal  six  summers 
and  two  winters,  beginning  in  May,  1796,  and  ending  in  Novem- 
ber, 1801.  I helped  build  the  locks  on  the  Merrimack  river,  the 
bridges,  sluices,  and  so  forth.  I worked  at  carpenter- work,  almost 
wholly.  In  1796  and  1797,  I did  not  work  on  the  dam.  In  1798 
I helped  build  the  dam.  There  was  a dam  previously  there,  — 
what  some  called  a zig-zag  dam,  — leaky,  and  not  very  high.  I 
never  knew  the  height  of  either  dam,  — to  my  knowledge.  The 
dam  I helped  build  was  higher  than  the  former  one.  They  made 
rafts  to  bring  timber  from  the  Merrimack,  and  there  was  not  water 
enough,  by  the  old  dam,  to  fill  the  canal.  After  the  new  dam  was 
built,  we  took  down  wider  rafts,  — the  canal  being  wider  at  top 
than  bottom.  The  planks  used  were,  I think,  two  and  three-quar- 
ter inches  in  thickness.  I never  saw  the  old  dam  till  I went  to 
work,  after  the  canal  was  fixed  in.  When  there  was  a flush  of 
water,  the  guard-gates  were  opened  to  fill  it.  No  flash-boards  were 
ever  put  on  the  old  dam,  to  my  knowledge.  I have  heard,  from 
Mr.  Baldwin,  the  Superintendent  — 

Mr.  Butler  objected. 

Mr.  Child  argued  for  the  admission  of  the  testimony. 

Witness  said,  in  the  course  of  the  conversation,  that  he  did  not 
know  that  any  advantage  was  taken  of  the  spring  freshets.  Timber 
could  then  be  better  floated. 

Objection  having  been  taken  to  further  testimony  offered,  Mr. 
Mellen  argued  that,  before  a Legislative  Committee,  the  strict 
rules  of  evidence  were  not  necessarily  to  be  enforced,  except  at  the 
discretion  of  the  committee. 

Mr.  Butler  insisted  that,  as  the  rights  of  the  mill-owners  were 
legal  rights,  they  should  be  effected  only  by  legal  testimony.  The 
committee  would  judge  of  the  relevancy  of  testimony,  but  would  not 
hear  what  could  not  be  evidence. 


430 


Charles  P.  Talbot,  et  al. 


The  Chairman  ruled  that  hearsay  testimony  was  inadmissable. 

Witness.  I recollect  that  a boat  passed  up  that  part  of  the 
canal  between  Concord  and  Merrimack  rivers,  with  a party  from 
Boston,  or  Medford,  or  somewhere. 

Q.  Who  composed  the  party  ? 

A.  I know  but  two  or  three  men.  There  was  one  from  Boston, 
Judge  Sullivan,  the  president  of  the  canal,  and  old  Col.  Baldwin 
and  one  of  his  sons.  I do  not  remember  many  others,  nor  how 
many  there  were,  but  I should  think,  twenty,  twenty-five,  or 
thirty. 

[ Witness  proceeded  to  speak  of  information  received , at  the  time , 
by  heresay,  in  reference  to  the  raising  of  the  water  in  the  canal , to 
float  the  boat.  Objection  was  made , and  the  testimony  rejected  as 
incompetent.  ] 

I do  not  know  how  much  higher  the  new  dam  was  than  the  old  ; 
but,  — from  their  raising  the  water  in  the  canal  so  much  higher  than 
before,  — I should  think,  nine  to  twelve  inches  high.  After  taking 
the  water  down  six  inches,  I remember,  in  the  first  of  June,  or  the 
last  of  Majr,  seeing  the  gates  open.  I should  think  the  effect  on 
the  depth  of  the  water,  of  the  completion  of  the  new  dam  would  be 
that  they  could  raise  it  nine  inches  or  a foot.  So  I have  thought 
sometimes,  by  the  flowing  of  the  water  after  they  got  the  dam 
built, — it  flowing  up  higher  into  a yard  where  we  worked,  and 
sending  us  back  into  higher  land.  I thought  the  water  was  much 
higher,  but  I couldn’t  say.  I cannot  tell  how  much  water  there 
was  in  the  canal  before  we  built  the  new  dam  ; I should  say  there 
was  something  like  two  and  a half  feet  of  water  when  the  boat 
came  up.  I cannot  tell  what  depth  of  water  the  canal  required,  in 
order  to  be  full ; but  I think,  three  and  a half  feet.  That  is  my 
impression  ; I am  not  positive,  — I think  it  is  correct. 

The  dam  I helped  build  had  a bridge  over  the  stream,  the  dam 
below  being  built  so  that  the  water  should  go  over  it.  There  was 
a little  island,  and  a saw-mill  stood  on  that.  The  main  dam 
crossed  the  river  ; and  where  the  water  ran  over  was  what  is  called 
a figure-dam.  We  had  a gauge  to  make  it  by  ; and  it  was  put  up 
— I don’t  know  how  far  apart  — I should  say,  eight  feet  across  the 
piers,  and  then  stringers  locked  right  on  at  the  side ; and  then  it 
was  planked,  slanting  up  the  stream.  This  was  a figure-four. 
There  was  a cap-sill  put  on  to  this  dam. 

The  figure  was  like  this : — 


After  the  dam  was  built,  timber,  principally,  was  brought  down. 
The  timber  and  rafts  were  larger  than  before.  The  small  was  tim- 


Testimony  of  Nathan  Barrett. 


431 


ber  for  locks : the  large,  sawed  for  planking.  I think  they  were 
much  larger.  I think  I saw  one  log  from  which  seven  planks  were 
sawed,  with  two  slabs. 

I saw  that  dam  in  1832  or  ’33,  or  about  then.  There  was  a 
stone  dam  built  below  it,  which  covered  it  up.  I then  saw  the 
posts  of  the  waste-gate,  but  they  were  under  water  — the  tops  a 
little  under.  They  had  been  built  all  of  a foot  higher  than  the  dam. 
There  was  a sluice-way  for  fish  to  go  up,  planked  the  other  way. 
That  was  lower  than  the  dam.  It  was  kept  open  every  spring. 
Don’t  know  when  it  was  stopped. 

Mr.  Butler.  That  was  all  matter  of  legislation. 

Flash-boards  were  put  on  the  dam  I built,  before  I left ; — I don’t 
know  when,  or  by  whom.  Saw  them  there  the  two  last  years. 
They  said  they  were  ten  inches  high.  I have  no  judgment  about 
their  height.  I did  not  work  there  much,  the  last  two  years. 

That  section  of  the  canal  between  the  rivers  was  finished  in  the 
fall  of  1797,  when  Sullivan’s  boat  came  up. 

Previous  to  the  building  of  the  dam  of  1798,  there  was  a pond 
there,  and  a mill.  It  was  called  a pond.  It  was  there  when  I was 
a bo}q  and  went  to  mill  there.  The  old  dam  flowed  not  nearly  so 
high  as  that  I helped  build  ; — I cannot  say  how  much  lower. 

I frequently  conversed  with  men  at  work  at  Mr.  Rogers’.  Never 
saw  the  ledge,  that  I know  of. 

The  flash  board  was  put  on  to  the  dam  by  little  posts  put  up,  and 
a brace.  They  didn’t  appear  to  be  fastened.  There  was  no  cap- 
sill  but  that  on  which  the  planking  was  nailed.  What  of  the  dam 
was  below  the  bridge  was  such  as  to  have  the  water  go  over. 


Nathan  Barrett  called  and  sworn . Examined  by  Mr.  Child. 

I live  in  Concord.  I am  sixty-three  }Tears  of  age.  I live  on  a 
height  where  I can  see  the  river  for  two  miles.  I have  always 
lived  there. 

I am  owner  of  river-meadows,  as  was  mjT  father.  I own  meadow- 
land  on  one  side,  and  upland  on  the  other.  I own  three  hundred 
or  four  hundred  acres,  mostly  on  the  river.  There  is  much  wood- 
land. There  is  one  piece  of  ten  acres,  in  front  of  my  house,  the 
highest  in  Concord.  I own  ten  acres  below,  lower,  and  five  acres 
below,  still  lower.  I owned  some  below,  in  Carlisle,  which  I sold 
in  1829.  My  father  bought  it.  Value  it  at  $35  an  acre.  He 
owned  it  ten  to  fifteen  }'ears.  1 kept  it  about  three  years,  and  then 
sold  it  for  $10  an  acre.  It  grew  wetter.  The  hay  was  good 
meadow-hay ; it  got  into  water-grass.  It  was  good,  common 
meadow-grass.  The  river  came  up  higher,  about  1826  or  ’27,  and 
has  been  higher  since.  It  is  mowed  now.  It  is  in  a range  of 
meadows.  The  water,  of  late  years,  has  got  to  a certain  height 
and  is  more  stationary  ; that  keeps  the  meadows  wet.  It  gets  even 
with  the  banks,  but  not  low  enough  to  make  it  dry.  We  used  to 
go  on  wfith  teams.  The  last  time  I got  ha}^  there,  I poled  it  off. 
On  that  range  of  meadows  the  grass,  as  long  ago  as  I can  remember, 
was  ver}T  good.  At  some  places  on  the  bank,  red-top  grew.  There 


432 


Charles  P.  Talbot,  et  al. 


was  some  scratch-grass  — good  meadow-grass.  I wouldn’t  now  go 
after  it — two  miles  — on  the  meadow  I sold,  if  given  to  my.  Some 
seasons,  we  used  to  have  to  pole  it. 

The  water  is  higher  now  than  in  1828.  I measured  the  river 
in  four  places  in  1835,  and  also  last  year.  In  three  places  I made 
it  ten  to  twelve  inches,  at  the  lowest  time,  higher  this  year  than  in 
1835.  I have,  at  home,  the  minutes  taken  before  1828.  In  1835 
I had  the  measure  of  how  much  it  had  fallen  from  ploughing  out 
the  bar.  The  measures,  — I now  know,  — compared  with  those  of 
this  year,  were  those  before  1828.  I measured  by  two  stones,  one 
at  the  upper  side  of  the  bridge  — what  was  the  old  North  Bridge, 
moved  down  — and  one  on  the  lower  side.  I measured  down  at  my 
ford  way,  at  the  bridge,  and  both  sides  of  the  bridge.  Before  1828, 
these  stones  were  above  the  surface  at  very  low  water.  This  year, 
the  water,  at  the  lowest,  was  17  inches  above.  Another  stone, 
formerly  above  water,  was,  this  3rear,  a foot  below  the  surface.  I 
measured  by  the  timber  of  the  bridge,  also. 

The  fordway  is  about  one  hundred  and  fifty  rods  from  the  bridge. 
Barrett’s  Bar  is  the  lowest  bar  towards  the  dam.  It  is  about  thirty 
or  forty  rods  long.  It  is  made  of  sand.  It  changes  every  Winter. 
It  hardly  ever  freezes,  there.  When  a boy  of  twelve,  I have 
crossed  the  bar  without  wetting  my  knees.  In  September,  1835, 
a man  from  Billerica  asked  me  to  have  some  of  my  men  at  work  on 
the  bar.  They  ploughed  and  scraped  out,  three  or  four  days. 
They  made  the  channel  on  the  South  side,  and  it  has  always  re- 
mained so.  They  went  down,  in  some  places,  eighteen  inches. 
At  this  time,  I made  the  mark  at  the  bridge  — probably  before  they 
commenced.  The  second  day,  the  water  had  fallen  one  inch.  The 
next,  it  rose  two  inches.  The  next,  it  fell  one  inch.  I remember 
no  other  attempt  to  clear  this  bar. 

When  I was  a boy,  grass  grew  in  the  river  — quite  a little  island, 
in  the  middle.  It  wore  away,  a good  many  years  ago.  Sinee  the 
water  has  been  kept  so  high,  it  has  worn  away ; — most  of  it  has 
been  gone  for  thirty-five  or  forty  years.  Used  to  cut  six  to  eight 
cocks  of  hay  a jrear  there.  It  is,  there,  a foot  higher  than  before 
1828.  I have  not  seen  any  grass  in  the  river  till  this  season,  when 
I saw  a man  on  dry  land  in  the  middle  of  the  river.  There  used 
to  be  a ford-way.  I have  not  crossed,  except  with  an  empty 
wagon,  for  several  }rears.  It  is  lower  this  year  than  for  two  or 
three  years.  It  was  lowest  some  time  in  August.  This  time  was 
just  before  the  Committee  came.  There  was  a man  there  making 
marks  for  some  purpose.  I only  took  it  by  my  eye,  that  it  was 
then  lowest.  The  river  went  down,  I thought,  sooner  than  usual. 
I know  of  nothing  done  at  the  dam,  to  cause  the  fall.  The  water 
is  at  least  a foot  higher  than  thirty  3Tears  ago. 

I measured  opposite  my  land,  by  a wall,  two  feet  high,  which  my 
father  built,  and  which  has  been  covered  almost  all  this  season. 
This  is  one  hundred  and  fifty  rods,  or  more,  from  the  bridge. 

The  timber  has  not  been  out  of  water  since  1828.  I don’t 
remember  measuring  it  since  then. 

The  chief  part  of  great  meadows  is  below  the  bar. 


Testimony  of  David  Heard. 


433 


David  Heard  recalled.  Examined  by  Mr.  Mellen. 

I have,  at  times  mowed  grass  in  the  stream.  I was  one  of  the 
Directors  of  the  Sudbury  Meadow-Owners’  Corporation,  formed  in 
1816.  There  was  a clearing  of  the  meadows  — some  years  after 
— mostly.  There  had  been  a law-suit,  and  something  said  about 
the  weeds  ; and  we  thought  we  would  try  it.  We  had  two  instru- 
ments. We  used  to  work,  and  clear  it.  I have  worked  upon  all 
the  bars,  I gues§,  from  the  Concord  line,  as  far  as  any  were 
worked  upon.  The  principal  bars  are  all  hard  gravel-pans,  in  the 
bed  of  the  river.  There  were  not  large  deposits  upon  them,  — just 
enough  to  start  out  a weed,  which  would  grow  according  to  the 
depth  of  the  water.  We  used  to  rake  them  out.  A shovel  instru- 
ment was  used,  to  take  out  the  weeds  in  deep  water,  above  the  bars. 
That  was  kept  up  for  a number  of  years.  After  1828,  there  was 
quite  a change  in  the  stream,  and  the  labor  expended  after  that, 
seemed  to  be  lost.  It  was  continued  up  to  1828  ; and  after  that 
there  was  a change  in  the  river ; the  water  in  the  river  stood 
higher.  The  low-water  marks  stood  higher,  and  continued  so. 
Where  we  used  to  drive  our  teams,  it  was  impossible  to  go  with 
them ; and  we  used  to  take  boats,  after  that,  with  two  or  three 
men  in,  along  side,  fasten  to  a long  pole,  or  something  of  that  kind, 
and  mow  the  weeds  and  let  them  float.  A considerable  sum  of 
money  was  expended  by  the  corporation.  After  1833,  suits  were 
brought  against  the  Mill  Corporations ; and  the  taxes  after  that 
were  principally  for  defraying  the  expenses  of  those  suits.  I think 
I looked  over  the  books,  once,  to  see  what  amount  was  probably 
laid  out.  There  was  quite  an  amount  — I think,  over  a thousand 
dollars,  for  clearing  the  river,  from  the  commencement,  — after 
1816, — to  1828.  It  was  continued  afterwards.  The  water  took 
a higher  stand  at  low- water  — which  was  the  grade  of  water  we 
chose,  to  operate  upon  the  river.  And  after  that,  we  did  not  under- 
take to  go  on  with  teams.  What  was  done  was  done  by  plunging 
into  the  higher  part  of  the  bars,  or  hiring  men  to  go,  or  taking 
boats  and  working  as  I have  described. 

There  were  extreme  points  of  low-water  mark,  lower  than  it  is 
now.  I think  I have  seen  it  two  feet  lower  than  it  has  been  this 
season.  There  was  a time,  previous  to  1828,  when  the  water  would 
go  down  to  a certain  low  point,  and  then  the  water  would  come  in 
above,  and  raise  it  up.  I have  seen  the  operation  of  the  river  at 
Farm  bridge,  where  the  water  was  shut  up  above  us;  the  water 
would  fall,  from  Saturday  to  Monday  morning,  an  inch  or  two.  By 
Tuesday  night  it  would  come  back  — sometimes  not,  but,  as  a 
general  thing,  it  was  as  high.  That  we  called  a low  state  of  water. 
That  same  operation  came  upon  this  water,  after  a higher  grade 
was  produced,  at  a low  state,  and  when  there  had  been  a series  of 
dry  times.  I think  the  difference  was  in  the  neighborhood  of  two 
feet  higher  than  previous  to  — say — from  181 6,  when  my  attention 
was  very  particularly  called  to  the  river. 

Upon  my  meadows,  it  is  two  feet  higher  than  before,  at  low-water 
mark.  It  has  submerged  my  meadows,  with  one  or  two  excep- 


434 


Charles  P.  Talbot,  et  al. 


tions.  I have  not  considered  the  hay  worth  cutting.  I. would  give 
• it  to  anybody,  if  they  wanted  to  go  for  it  as  a general  thing.  I 
cannot  say  but  there  have  been  some  exceptions.  The  water,  now, 
in  cases  of  flood,  compares,  in  passing  off,  with  former  years,  thus  : 
the  water  goes  down  to  a certain  grade  — not  quite  as  fast  as  it 
used  to,  but  it  goes  down  to  a certain  grade,  — and  becomes 
stationary ; whereas  it  used  to  go  off,  to  below  — well,  it  would 
vary  as  the  season  was,  and  as  the  cause  producing  the  water  upon 
the  meadows  — I have  known  it  to  go  down  three  inches  in  eight- 
and-forty  hours — but  as  a general  thing,  you  could  calculate  that 
when  water  was  on  the  meadows  three  inches,  it  would  go  down 
two  inches  in  a day. 

Bridle-point  Bar  has  changed  like  all  the  rest  of  the  river.  Since 
my  father  died,  in  1813, — from  that  time  to  1828,  — that  Bridle- 
point  road  was  not  made.  There  were  many  owners  of  meadows 
in  the  vicinity  of  my  place  in  Wayland.  The}-  had  to  go  around 
on  the  old  causeway,  and  go  around  to  the  head  of  the  meadows, 
to  get  on.  That  was  the  only  way  they  had  go,  lawfully,  unless 
they  boated  across  the  river.  But  I have  given  permission,  many 
times,  to  people,  my  neighbors,  and  persons  who  had  bought  hay 
in  those  lots,  to  ford  the  river  at  Bridle  Point,  and  go  on  to  my 
meadow  and  so  travel  up  the  brook.  Their  mode  of  getting  it  was 
by  poling  it  across.  They  loaded  up,  and  came  back  the  same 
way  they  came  on  on.  They  poled  it  across  West  Brook,  on  to  my 
meadow,  which  is  on  the  west  side  of  the  river,  from  Bridle-point 
Bridge,  and  on  the  side  of  the  brook.  These  meadows  were  on  the 
west  side  of  the  river,  and  on  the  other  side  of  the  brook  — the 
north  side.  The  water  on  that  bar  would  depend  upon  many  con- 
ditions. The  meadow  swere  dry  — the  banks  were  perfectly  dry. 
And  when  the  banks  and  meadows  were  perfectly  dry,  the  water 
was  not  very  deep  on  the  bed  of  the  river,  at  that  place.  I forded 
across,  several  times,  for  water.  There  was  a beautiful  spring 
between  the  river  and  the  road,  for  which  they  used  to  cross  the 
river  in  haying-time.  I have  not  seen  a team  go  across,  or  person 
wade  across,  since  1828.  Previous  to  that,  when  I turned  my 
cattle  on  that  meadew  for  fall  feed,  I used  to  have  to  put  up  a fence 
there,  to  keep  them  from  going  across.  To  tell  its  depth  would 
be  mere  guess.  I should  judge  it  might  measure  three  feet  deep, 
there. 

The  whole  of  these  bars  were  solid  bars,  with  but  litte  sediment, 
It  was  mere  weeds,  that  we  could  drive  out ; as  soon  as  disturbed, 
they  would  float.  But  above  the  bars,  where  the  bottom  merged  off 
into  deep  water,  there  would  be  deposits,  which  we  got  off  with  a 
scraper.  It  would  usually  wash  out  before  we  got  to  shore.  Mr. 
Draper  invented  a horizontal  wheel,  fixed  some  knives  upon  it,  and 
we  undertook  to  run  through  some  bars.  It  did  not  operate  well. 
It  got  clogged.  I know  all  the  bars. 

Perhaps  the  river  has  been  growing  more  sluggish  of  late  years. 
The  weeds  have  extended,  upon  these  deposits  above  the  bar.  But 
those  weeds,  when  the  committee  were  going  down,  were  in  a state 
of  decomposition,  with  slime  all  upon  the  stems.  The  next  night, 
it  rose.  Within  three  days  after  that,  I went  to  Sudbury.  Judge 


Testimony  of  David  Heard. 


435 


Mellen  and  I passed  over  the  canal  bridge.  I drew  his  attention  to 
the  appearance  of  the  weeds  in  the  canal.  They  had  nearly  all 
disappeared.  The  current  had  been  quickened  a little,  and  the 
weeds,  in  that  decomposed  state,  drifted  off. 

Q.  About  this  dam  ? 

A.  I was  one  of  the  Directors.  Col.  Wm.  Baldwin  was  a Direc- 
tor. I could  not  fix  the  time.  At  any  rate,  there  was  a consider- 
able flood  upon  our  grass,  and  Col.  Baldwin  and  I concluded  to  go 
to  Billerica,  to  see  about  it.  It  was  one  of  those  years  in  which 
Mr.  Baldwin  was  Agent,  or  Superintendent,  he  running  a packet. 
He  was  on  board  a packet,  and  I understood  that  he  ran  one  from 
Chelmsford  to  Boston.  He  wa£  Agent,  at  any  rate,  of  the  Canal. 
We  referred  to  him  as  such.  I conversed  with  him.  In  con- 
sequence of  that  interuiew,  Mr.  Baldwin  and  myself  obtained  some 
other  help,  and  hoisted  — I think  it  was  — three  gates.  This  old 
dam  of  1798  had  two  sluice-ways.  There  was  a gate  at  the  West 
end,  and  one  nearly  in  the  centre  of  the  stream.  There  was  one 
of  the  gates  we  could  not  get  at.  But  we  got  up  two  of  them  and 
let  the  water  run,  that  day,  while  we  stayed  there.  The  water  was 
then  running  over  the  dam,  in  pretty  large  volumes  — a sheet.  The 
water  went  down,  while  I was  there,  so  that  I could  see  the  old 
dam.  I mean  the  old  ’98  dam.  The  gates  were  built  with  plank, 
fastened  together,  and  a long  plank  in  the  centre,  which  came  up 
several  feet  higher  than  the  top  of  the  dam,  with  mortice  holes,  and 
iron  rings  across,  and,  laying  a timber  across  this  frame,  we  could 
get  this  lever  in,  and  pry  the  gates  up.  I recollect,  very  dis- 
tinctly, the  form  of  the  dam.  After  we  drew  the  water  from  the 
top  of  the  dam,  some  little  distance,  it  showed  itself  that  I could 
examine  it.  I walked  across,  on  the  lower  side,  after  the  water 
had  done  running  over.  There  were  large  rocks  I could  stand  on, 
and  see  below. 


■ 

* 


pL^m  a, 

TO  ACCOMPANY  REPORT  OF  HEARING  ON  THE 

CONCORD  AND.  SUDBURY  MEADOWS 

Introduced  b\' Petitioners 


dUiJ  cdjjU 


FROM  EAST  SUDBURY  TO  BILLERICA  MILLS. 
22. ]5  Miles, 

TO  BE  USED  ON  A TRIAL  IN  THE  S.J.  COURT. 

SUDBURY  AND  EAST  SUDBURY  MEADOW  CORPORATION 

vs. 

MIDDLESEX  CANAL. 

Taken  "by  agreemefil  of  parlies, 
ibv 

L. BALDWIN,  (lv it  Engineer. 


SURVEYED  AND  DRAWN 

bv 

B.  F.  PERHAM. 

May,  1834. 

It  educed  from  Original 


| | | | | | 

of <■ 


PR  ofjli: 

Who  If  distance  from-  Bridle  Point '/Bridges  to  flaw  at  JitlUriciV  Mttt-a  - 22Mtle*  & 802  fttl  (ty  the  suneved  route  J 
W/mt,  fall  7)o  Z to.  iv<w  2,865/1  wJuf-vIht  lt\'ed/  um  taken  Sept.  1838 


\\ . 


*4 ... 


Reduced  /4  from.  Original 


P ! '..V.v  [[, 

M,on 


BILLERICA  MILLS 

bv  JOHN  AVFRY  JR 

1859. 


CONCORD  AND  SUDBURY  MEADOWS 

(fnh  o (J turd  7nr  It^Ajwn tl n>  /.v  ) 

(Reduced / ff0m  ot'iAjU'iai)  DIMENSIONS  OF  GRIST  MILL  AND  SAW  MILL  GATES 

AT  BILLERICA  MILLS 


Petition. 


437 


Monday,  October  9,  1876. 

The  commissioners  met  at  11^  o’clock,  A.  M. 

Mr.  Butler  puts  in  Map  No.  1,  in  House  Document  No.  100 
(viz.,  the  report  of  the  joint  special  committee  on  flowage, 
etc.)  ; also,  Map  No.  2 from  the  same,  and  the  accompany- 
ing exhibits ; also,  Maps  No.  3 and  No.  4 and  5 from  the 
same  document. 

[Testimony  closed.] 


JAMES  R.  FAULKNER,  Petitioner, 

vs. 

CITY  OF  BOSTON. 

To  the  Honorable  the  Justices  of  the  Superior  Court , now  sitting  at 
Cambridge , in  the  County  of  Middlesex , in  the  Commonwealth 
of  Massachusetts : — 

The  petition  of  James  R.  Faulkner,  of  Billerica,  in  said  County 
of  Middlesex,  and  Charles  Faulkner,  of  Boston,  in  the  County  of 
Suffolk  and  said  Commonwealth,  respectfully  represent  unto  your 
Honors  said  petitioners,  that  they  own,  are  seized  of  in  fee  and 
possessed  of,  and  have  for  more  than  three  years  last  past,  certain 
parcels  of  lands,  and  the  buildings  thereon  situate,  in  the  northern 
part  of  Billerica,  in  said  County  of  Middlesex,  bounded  and  de- 
scribed as  follows  : — 

First  Parcel.  A certain  piece  or  parcel  of  land,  with  the  brick 
factory  and  buildings  thereon  standing,  situated  in  the  northerly 
part  of  said  Billerica,  bounded  as  follows,  viz. : beginning  at  the 
road,  which  passes  in  front  of  said  factory,  at  the  corner  of  said 
James  R.  Faulkner’s  lot,  and  running  northerly  on  said  Faulkner’s 
land  until  it  comes  parallel  with  the  front  of  his  dwelling-house ; 
thence  westerly  three  hundred  feet  to  a stake  and  stones ; thence 
southerly  one  hundred  and  forty  feet  to  a stake  and  stones*  at  a 
little  basin,  so  called,  in  Concord  river ; thence  easterly,  on  the 
south  side  of  said  Factory  creek,  and  on  land  of  Nathaniel 
Stearns,  now  or  formerly,  to  the  road  above  mentioned  ; thence  on 
said  road  to  the  bounds  first  mentioned. 

Second  Parcel.  Also,  a certain  other  lot  of  land,  with  a wooden 
factor}^  thereon  standing,  situate  nearly  opposite  the  brick  factory 
aforesaid,  being  the  same  premises  conveyed  to  Francis  Faulkner 
by  Nathaniel  Stearns  and  John  Baldwin,  guardians,  by  their  deed 
bearing  date  on  the  twenty-ninth  day  of  April,  A.  D.  1831,  re- 
corded in  the  Middlesex  Registry  of  Deeds,  book  305,  page  44. 
Third  Parcel.  Also,  a certain  other  lot  of  land  near  the  above, 


438 


Case  of  James  R.  Faulkner. 


and  near  the  bridge  over  Concord  river,  with  the  buildings  thereon, 
called  and  known  by  the  name  of  “The  Blacksmith’s  Forge  and 
Iron  Works,”  being  the  premises  first  described  in  the  deed,  by 
which  Abner  Kneeland,  guardian,  conveyed  the  same  to  said 
Francis  Faulkner,  dated  the  twenty-fourth  day  of  May,  1836, 
Middlesex  Deeds,  book  53,  page  514. 

Fourth  Parcel.  Also,  a certain  other  parcel  of  land  near  the 
above,  bounded  and  described  as  follows,  viz. : beginning  at  a 
stake  on  the  road  leading  from  Tewksbury  to  the  Canal  Mills, 
formerly  so  called,  at  the  intersection  of  the  line  of  said  road, 
and  the  strip  of  land  in  common  on  the  easterly  side  of  the  forge 
lot,  so  called ; thence  north  40^°  west,  four  rods  one  and  one- 
quarter  links  by  said  strip  of  common  land  ; thence  south  51° 
west,  seven  rods  and  thirteen  links  to  a stake  ; thence  north  81f° 
west,  six  rods  twelve  and  one-half  links  across  the  little  basin,  so 
called,  to  a stake  at  land  owned  by  the  heirs  of  the  late  Francis 
Faulkner;  thence  north  51£°  east  by  said  Faulkner’s  heirs’  land, 
eleven  rods  and  three  links  to  a stake ; thence  north  73f°  east 
by  said  heirs’  land  two  rods  thirteen  and  a half  links  to  a stake; 
thence  south  85°  east  by  gaid  heirs’  land  two  rods  and  fourteen 
links  to  a stake  ; thence  south  70°  east  by  said  heirs’  land  three 
rods  and  nine  links  to  a stake ; thence  south  26£°  east  by  said 
heirs’  land  three  rods  fourteen  and  one-third  links  to  a stake  at 
said  road  ; thence  south  56^°  west  by  said  road  four  rods  and  seven 
links  to  the  point  of  beginning.  Also,  all  the  interest  formerly 
held  by  Chas.  P.  Talbot  and  Thomas  Talbot  in  a small  strip  of 
land,  four  feet  wide,  adjoining  said  last-named  parcel,  and  which 
was  used  by  said  Talbots  and  the  petitioners  as  common  land  up 
to  the  eighth  day,  1857,  with  the  exception  of  such  rights  as  are 
reserved  to  said  Talbots  in  their  deed  of  said  date  to  these  peti- 
tioners, recorded  in  Middlesex  j North  District  Deeds,  book  9, 
page  378. 

Fifth  Parcel.  Also,  another  parcel  of  land  situate  in  the  north 
part  of  said  Billerica,  viz. : beginning  at  the  southwest  corner  of 
land  owned  by  said  James  R.  and  Charles  Faulkner,  and  running 
easterly  by  their  land  one  hundred  and  forty  feet,  south,  sixty-four 
feet  by  land  of  said  James  R.  and  William  E.  Faulkner,  making 
two  hundred  and  four  feet ; then  running  northerly  on  land 
of  said  William  E.  Faulkner  one  hundred  and  four  feet;  then 
running  westerly  on  land  of  said  William  E.  Faulkner  two  hun- 
dred and  seven  feet  to  land  of  said  James  R.  and  Charles ; then 
running  southerly  on  land  of  said  James  R.  and  Charles  one  hun- 
dred and  four  feet  to  bound  first  mentioned,  said  William  E. 
Faulkner  hereby  reserving  to  himself,  his  heirs  and  assigns,  a 
right  of  way  or  road  across  the  above-described  and  granted  parcel 
of  land  to  land  of  said  William  E.  adjoining. 

Sixth  Parcel.  All  that  tract  of  land,  with  the  buildings  now 
standing  thereon,  situate,  lying  and  being  in  the  northerly  part  of 
said  Billerica,  and  bounded  and  described  as  following:  beginning 
at  the  northwesterly  corner  of  the  premises  hereby  conveyed  at  the 
junction  of  two  roads  leading  from  North  Billerica,  so  called,  one 
to  Billerica  Centre,  and  sometimes  called  Mill  street,  and  the 


Petition. 


439 


other  to  Tewksbury,  and  sometimes  called  North  street ; thence 
running  south  16°  east  7£  rods  on  said  Mill  street;  thence  south 
27^°  east,  4 rods  to  said  Mill  street ; thence  south  16°  east,  4 rods 
by  said  Mill  street;  thence  south  2°  east,  12^^  rods  by  said  Mill 
street  to  a barn  or  building  on  said  premises  ; thence  westerly  by 
said  building  T8^-  of  a rod  ; thence  south  1^°  east,  3xV<y  rods  by 
said  Mill  street;  thence  south  7°  east,  rods  by  said  Mill 

street ; thence  south  9°  east,  7X3^  rods  ; thence  turning  by  a curve 
of  -j7u5e-  of  a rod  and  running  south  80°  east,  16-j^  rod  ; thence 
south  66°  east,  25T8TT0xr  rods  to  the  Boston  and  Lowell  Railroad  ; 
thence  northwesterly  by  said  railroad  72  rods,  more  or  less,  to  said 
road  leading  to  Tewksbury,  called  North  street ; thence  south- 
westerly by  said  North  street  14  rods,  more  or  less,  to  the  point  of 
beginning  ; containing  6 acres  and  95  square  rods.  Also  a certain 
other  tract  of  land  opposite  the  tract  above  described,  and  situate 
upon  the  westerly  side  of  said  Mill  street,  and  bounded  and 
described  as  follows : beginning  at  a point  on  the  westerly  side 
of  said  Mill  street,  opposite  the  point  of  beginning  of  said  tract 
hereinafter  described ; thence  running  southeasterly  in  a straight 
line  12  rods,  more  or  less,  to  Concord  river  ; thence  running  south 
30°  east,  by  said  Concord  river,  to  a great  rock ; thence  nearly 
southerly  by  said  river  to  Willow  Tree,  or  what  was  formerly  the 
Middlesex  Canal ; thence  southeasterly  by  said  canal  9 rods  and 
of  a rod  to  said  Mill  street ; thence  northwesterly  and  north- 
erly by  said  Mill  street  to  the  point  of  beginning ; containing  1 
acre  and  130  square  rods. 

Seventh  Parcel.  The  following  described  parcels  of  land,  situate 
in  said  Billerica,  bounded  as  follows,  viz. : the  first  piece,  begin- 
ning at  the  southwest  corner  thereof,  on  the  road  leading  from 
North  Billerica  mills  to  the  corner  of  the  town  ; thence  running 
northerly  343  rods,  more  or  less,  on  land  of  James  Faulkner  to 
land  of  James  R.  Faulkner  & Co. ; thence  running  easterly  64  feet, 
more  or  less,  on  said  land  of  James  R.  Faulkner  & Co.  to  other 
land  formerly  of  said  William  E.,  when  living ; thence  running 
southerly  on  said  last-named  piece  of  land  343  feet,  more  or  less, 
to  the  said  road ; thence  running  westerly  on  said  road  48  feet, 
more  or  less,  to  the  point  of  beginning  ; containing  about  one-half 
acre,  more  or  less,  with  the  dwelling-house  thereon.  The  second 
piece,  beginning  at  the  southeast  corner  of  said  first  piece,  on  said 
road,  and  running  northerly  548  feet,  more  or  less,  on  said  first 
piece  and  the  said  land  of  James  R.  Faulkner  & Co.  ; thence  turn- 
ing and  running  westerly  210  feet,  more  or  less,  on  land  of  James 
R.  Faulkner  & Co.  ; thence  turning  and  running  northerly  again 
545  feet,  more  or  less,  on  land  of  James  R.  Faulkner  & Co.,  to 
land  of  Jones,  Haynes  & Foster ; thence  turning  and  running 
easterly  423  feet,  more  or  less,  on  said  last-named  land  ; then  turn- 
ing and  running  southerly  791  feet,  more  or  less,  on  land  of  the; 
Boston  and  Lowell  Railroad;  then  turning  and  running  westerly 
116  feet,  more  or  less,  and  southerly  201  feet,  more  or  less,  on  land 
of  C.  P.  Talbot  & Co.,  to  the  road  leading  to  the  depot  of  the 
Boston  and  Lowell  railroad  ; then  running  southwesterly  288  feet, 
more  or  less,  on  said  last-named  road,  to  the  point  of  beginning. 


440 


Case  of  James  K.  Faulkner. 


and  containing  6 acres,  more  or  less.  The  third  piece,  beginning 
on  the  first-named  road  at  the  corner  thereof,  with  the  road  running 
to  the  depot  and  running  on  the  depot  easterty  302  feet,  more  or 
less ; then  turning  and  running  75  feet,  more  or  less,  southerly, 
50  feet,  more  or  less,  easterly,  and  65  feet,  more  or  less,  southerly 
again,  on  land  of  said  railroad  ; then  turning  and  running  208  feet, 
more  or  less,  on  the  road  leading  from  the  mills  of  Tewksbury ; 
then  running  258  feet,  more  or  less,  on  the  road  from  North  Bil- 
lerica Mills  to  the  centre  of  the  town  to  the  bounds  first  men- 
tioned ; containing  2 acres,  more  or  less.  Your  petitioners  further 
sa}',  that  the}T  are  the  owners  and  proprietors  of  certain  val- 
uable water-rights,  water  and  mill  privileges,  arising  from  and 
formed  b}7  the  said  Concord  river,  and  appurtenant  to  the  real 
estate  above  described,  and  of  the  right  to  use  the  waters  of 
said  river  for  all  legal  purposes  at  their  said  property  in  said 
Billerica,  and  that  they  have  been  such  owners  and  proprietors 
ot  said  valuable  water-rights,  water  and  mill  privileges,  and  right 
to  use  water  of  said  Concord  river  for  three  years  last  past  and 
longer.  And  your  petitioners  further  say  that  during  all  said 
period  of  three  years  last  past  and  longer,  that  the}7  have  the  right, 
:and  for  more  than  three  years  last  past  have  had  the  right,  that 
said  Concord  river  should  flow  in  the  same  manner  and  in  the  same 
.quantity,  volume  and  force,  and  within  the  same  limits,  channel 
•and  bed  as  said  river  did  at  the  time  of  the  action  of  the  City  of 
Boston,  hereinafter  set  forth,  and  as  said  river  had  from  time 
immemorial  prior  thereto,  and  that  the  waters  thereof  should  con- 
tinue to  flow  by  and  through  their  lands,  mills  and  factories  in  its 
ancient  and  accustomed  natural  channel  and  bed,  and  over  your 
petitioners’  dam  and  through  the  artificial  streams  and  sluiceways 
in  tl>eir  land,  and  over  and  through  their  water-wheels.  And  }Tour 
petitioners  further  say  that  during  all  said  period  of  three  years 
past  and ‘longer,  they  have  been  the  owners  of  water-mills,  facto- 
ries, and  other  works  connected  therewith,  and  used  in  the  carrying 
on  of  their  business'  on  said  parcels  of  land  in  the  manufacture  of 
woollen  materials  and  flannels,  run  and  operated  by  water-power 
derived  and  obtained  by  them  from  the  waters  flowing  in  and  along 
the  channel  of  said  Concord  river,  and  from  canals,  artificial 
streams  and  -sluiceways  from  said  Concord  river  through  the  lands 
of  your  petitioners  aforesaid.  And  your  petitioners  further  say 
that  the  Sudbury  river,  so  called,  in  said  Commonwealth,  is  one  of 
the  natural  sources  and  tributaries  of  said  Concord  river,  and  that 
the  waters  thereof  are  one  and  the  principal  means  of  supply  of 
said  Concord  river,  and  that  the  waters  of  said  Sudbur}7  river,  when 
undisturbed  and  unobstructed  and  left  to  their  natural  course 
and  current,  flow  into  the  said  Concord  river  above  the  lands,  mills 
and  factories  of  your  petitioners  before  described,  and  through  and 
by  means  of  the  said  Concord  river,  naturally  flow  and  pass  by 
and  through  the  lands,  mills  and  factories  of  your  petitioners  and 
furnish  power  for  running  and  operating  the  same,  and  all  of  great 
value  and  advantage  to  j’our  petitioners.  And  your  petitioners 
further  represent  that  by  virtue  of  an  act  of  the  Legislature  of 
the  Commonwealth  of  Massachusetts,  entitled  “ an  act  to  author- 


Petition. 


441 


ize  the  City  of  Boston  to  obtain  an  additional  supply  of  pure 
water,”  approved  the  eighth  day  of  April,  A.  D.  1872,  and  num- 
bered one  hundred  and  seventy-seven  of  the  acts  of  said  year,  the 
said  City  of  Boston,  in  the  said  County  of  Suffolk,  has  within  three 
years  last  past  before  the  date  of  this  petition,  first  actually  taken 
through  the  agency  pointed  out  in  said  act,  all  the  waters  of  Sud- 
bury river,  and  all  the  water  in  Farm  pond,  so  called,  and  of  the 
streams  and  tributaries,  whether  natural  or  artificial,  flowing  into 
them  and  connecting  them  at  and  above  the  dam  and  permanent 
obstructions,  built  by  the  said  Cit}’’  of  Boston,  A.  D.  1872,  five 
hundred  feet,  more  or  less,  below  the  crossing  of  said  Sudbury 
river  by  the  Boston,  Clinton  and  Fitchburg  Railroad,  in  the  town 
of  Framingham,  in  the  County  of  Middlesex,  and  near  and  below 
the  brook,  which  is  the  outlet  of  said  Farm  pond  into  said  Sud- 
bury river,  and  still  continues  and  maintains  the  said  taking  and 
said  dam  and  permanent  obstructions,  and  has  withdrawn  and 
diverted  the  said  waters  from  their  natural  and  accustomed  flow 
into  the  said  Concord  river,  and  by  and  through  the  channel 
and  bed  thereof,  to  and  through  the  lands,  mills  and  factories  of 
your  petitioners,  and  has  altered  and  changed  the  natural  current 
and  course  of  said  Sudbury  river,  so  that  the  waters  thereof  and 
of  Farm  pond  no  longer  contribute  to  or  flow  into  said  Concord 
river,  and  have  ceased  through  and  by  the  bed  and  channel  of  said 
Concord  river,  to  reach,  pass  by  and  through  the  lands,  mills  and 
factories  of  your  petitioners,  and  will  not  and  cannot  flow  through 
the  channel  and  bed  of  said  Concord  river,  and  by  and  through  the 
lands,  mills,  and  factories  of  your  petitioners  aforesaid,  as  they,  your 
petitioners,  have  the  right  they  should,  and  as  said  waters  would  now, 
and  would  hereafter  continue  to  do,  but  for  the  action  aforesaid  of 
said  City  of  Boston.  And  your  petitioners  further  say,  that  by  means 
of  said  permanent  obstructions  of  the  natural  flow,  current  and 
course  of  the  waters  of  said  Sudbury  river  and  Farm  pond,  and 
taking,  withdrawal  and  diverting  thereof,  as  aforesaid,  from  their 
natural  and  accustomed  flow,  and  by  means  and  reason  also  of  the 
said  permanent  obstructions,  dams  and  erections,  which  the  said 
City  of  Boston  has  built  and  erected,  as  aforesaid,  and  still 
maintains,  the  waters  of  Sudbury  river  and  Farm  pond  do 
not  and  cannot  now,  or  never  hereafter,  flow  as  they  did,  and 
would  naturally,  into  the  said  Concord  river  by,  to  and 
through  the  lands,  mills  and  factories  of  your  petitioners, 
and  the  natural  flow  and  stream  of  said  Concord  river, 
through  and  by  a channel  and  bed,  and  by  and  through  the  lands, 
mills  and  factories  of  your  petitioners  has  been  greatly  reduced 
and  lessened  in  quantity,  volume  and  force,  and  thereby  and  by 
reason  thereof,  said  petitioners  are  deprived  of  a large  part  of  their 
water-power,  water  and  mill  privileges,  and  water-rights  aforesaid, 
and  that  the  same  are  permanently  injured  and  destroyed,  and  the 
same  and  their  lands,  mills,  factories  and  other  works  in  the 
premises  are  greatly  damaged  and  lessened  in  value ; and  your 
petitioners  further  say,  that  by  said  taking  of  the  waters  of  Sudbury 
river  and  Farm  pond,  and  by  the  said  city’s  acceptance  of  the 
powers  and  privileges  conferred  upon  it,  they  have  sustained  great 


442 


Case  of  James  R.  Faulkner. 


damages  in  their  property,  and  that  they  have  not,  and  have  not 
been  able  to  agree  with  the  said  City  of  Boston  upon  the  damages 
to  be  paid  them  therefor,  and  that  said  city  has  not  offered  to  pay 
them,  as  such  damages,  any  sum  whatever.  Wherefore  jour 
petitioners  pray  and  petition  this  Honorable  Court  for  the  assess- 
ment of  their  damages  from  the  said  taking  of  the  waters  of  said 
Sudbury  river  and  Farm  pond,  conformably  to  law,  and  that  after 
due  notice  and  summons  to  said  City  of  Boston,  this  Honorable 
Court  will  appoint,  upon  the  default  or  hearing  of  said  City  of 
Boston,  three  judicious  and  disinterested  freeholders  of  this  Com- 
monwealth, who  shall  assess  such  damages  according  to  law  and 
that  all  such  and  other  proceedings  in  the  case  as  to  law  and  jus- 
tice shall  appertain. 

JAMES  R.  FAULKNER, 
CHARLES  FAULKNER. 

Boston,  A.  D.  1875. 

Filed  May  31,  1875. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Middlesex,  ss. 

[l.  s.]  To  the  Sheriffs  of  our  several  counties  or  their  Deputies. 

Greeting  : 

We  command  you  to  summon  the  City  of  Boston,  a municipal 
corporation  established  under  the  laws  of  this  Commonwealth,  in 
the  County  of  Suffolk,  to  appear  before  the  justices  of  our  Superior 
Court,  to  be  holden  at  Cambridge  within  and  for  our  Countj’’  of 
Middlesex,  on  the  first  Monday  of  June  next,  to  wit,  at  an 
adjournment  thereof  at  said  Cambridge,  on  the  twelfth  day  of  July, 
A.D.  1875,  and  answer  to  the  petition  of  James  R.  Faulkner  of 
Billerica,  in  said  County  of  Middlesex,  and  Charles  Faulkner,  of 
said  Boston,  filed  in  the  office  of  the  clerk  of  the  Courts  for  said 
County  of  Middlesex,  on  the  day  of  the  date  hereof,  a true  and 
attested  copy  of  which  petition  is  hereto  annexed.  And  have 
you  there  this  writ  with  your  doings  thereon. 

Witness , Lincoln  F.  Brigham,  Esquire,  at  Cambridge,  this  thirty- 
first  day  of  May,  one  thousand  eight  hundred  and  seventy-five. 

JOHN  J.  SAWYER, 

Assistant  Clerk. 

OFFICER’S  RETURN. 

Suffolk,  ss.  Boston,  June  9,  1875. 

By  virtue  hereof  I,  this  day  summoned  the  within-named  City  of 
Boston  to  appear  and  answer  at  Court,  by  giving  in  hand  attested 
copies  of  this  writ  and  of  the  petition  annexed,  to  Charles  H. 
Dennie,  Esq.,  Treasurer,  and  Samuel  F.  McCleary,  Esq.,  Clerk  of 
said  City  of  Boston. 

Service  and  travel,  $1.28 
Copies.  12  00 


$13.28 

BENJAMIN  F.  BAYLEY, 

Deputy  Sheriff. 


Petition. 


443 


COMMONWEALTH  OF  MASSACHUSETTS. 

Middlesex , ss. 

Faulkners,  Petitioners  for  Damages  against  the  City  of 

Boston. 

1.  And  now  come  said  City  of  Boston,  and  for  answer  to  the 
allegations  of  said  petitioners  say,  that  they  admit  it  to  be  true, 
as  therein  averred,  that  the  petitioners  were  in  possession  of  the 
land  therein  described  at  the  times  therein  set  forth,  but  said 
defendants  deny  that  the  petitioners  were  the  lawful  owners  of  the 
water-power  therein  described,  and  require  them  to  make  such 
proof,  as  they  are  advised,  of  the  ownership  of  such  water-power 
on  the  Concord  river. 

2.  And  the  defendants,  further  answering,  admit  that  the 
Sudbury  river  is  one  of  the  branches  and  tributaries  of  said  Con- 
cord river,  and  the  waters  thereof,  and  the  streams  running  into 
the  same  would  naturally  flow  into  said  Concord  river,  and  flow 
into  and  make  a part  of  a head  of  water  raised  by  a dam  at 
Billerica,  as  set  forth  in  said  Faulkners’  petition. 

3.  The  defendants,  further  answering,  aver  that  said  Faulkners 
do  not  own  any  rights  in  said  water-power,  except  it  may  be 
certain  indefinite  rights  in  common  with  other  parties  who  have 
suffered  damages  jointly  with  them,  if  any,  by  the  alleged  taking, 
or  any  taking  of  the  water  of  Sudbury  river  by  the  City  of  Boston, 
and  the  defendants  claim  that  this  petition  for  damages  for  the 
taking  of  the  water  of  the  Sudbury  river  by  said  Boston,  under  and 
by  virtue  of  the  act  of  the  Legislature,  as  set  out  in  the  petition, 
should  have  been  brought  by  the  petitioners  jointly  with  Charles  P. 
Talbot,  Thomas  Talbot,  of  said  Billerica,  and  others  to  the 
defendants  unknown,  who  claim  to  own  rights  in  said  water-power, 
subject  to  certain  rights,  reservations  and  conditions  therein  to  the 
town  of  Billerica,  who  are  all  jointly  owners,  or  jointly  interested  in 
common,  and  not  in  severalty  in  said  water-power  with  said  peti- 
tioners ; and  said  petition  of  said  Faulkners,  if  it  may  be  sustained 
at  all,  should  be  jointly  with  the  other  owners,  in  common  of  said 
waters  and  water-power,  who  claim  damages  against  said  city, 
because  of  the  taking  of  said  water,  and  not  severally  by  each, 
because  the  defendants  say  that  the  water-power  of  said  Concord 
river,  at  said  Billerica,  being  undivided,  it  would  be  exceedingly 
burdensome  and  expensive  to  said  defendants  to  be  called  upon  to 
divide  and  show  how  the  taking  of  said  water  of  Sudbury 
river  would  affect  the  owners  and  claimants  of  the  water  severalty, 
so  as  to  protect  themselves  against  the  several  claims  of  each  owner 
therein.  And  they  therefore  pray  the  Court  that  the  petition  may 
be  dismissed  for  non-joinder  of  the  other  owners  of  said  water- 
power, or  that  all  of  the  owners  of  any  rights  in  said  water-power, 
created  by  said  dam  at  said  Billerica,  may  be  ordered  to  come  in 
and  join  as  parties  in  said  petition,  so  that  there  shall  be  but  one 
assessment  of  damages  for  one  act  of  taking  by  said  city  of  said 


414 


Case  of  James  R.  Faulkner. 


water,  and  a joint  injury  thereby  to  said  water-power  owned  by  the 
parties  aforesaid  at  said  Billerica. 

4.  And  the  defendants,  further  answering,  deny  that  the}7  have 
taken  and  diverted  and  withdrawn  any  of  the  waters  of  Sudbury 
river  before  the  filing  of  said  petition  under  the  authority  conferred 
by  said  act,  set  forth  in  said  petition,  in  the  manner  and  form 
therein  set  forth,  or  otherwise  by  said  city  acting  under  and  by 
virtue,  of  the  authority  of  said  act. 

5.  And  the  defendants,  further  answering,  say  that  said  peti- 
tioners, and  the  owners  of  said  water-power  at  said  Billerica,  on 
the  Concord  river,  are  not,  and  will  not  be  damnified  by  the  taking 
of  the  water  of  Sudbury  river  under  said  act,  nor  do  they  have  any 
right  therein  or  thereto,  because  they  say  that  by  the  act  of  the 
General  Court  of  Massachusetts,  passed  June  22,  1793,  to  which, 
with  the  acts  additional  thereto,  the  defendants  beg  leave  to  refer 
as  part  of  their  answer,  certain  persons  therein  named  were  incor- 
porated by  the  name  of  the  “ Proprietors  of  the  Middlesex  Canal,” 
as  a perpetual  corporation  for  the  sole  object  of  uniting  the  waters 
of  the  Merrimack  river  in  said  Middlesex  county,  with  the  waters 
of  the  Medford  river  in  said  county,  by  cutting  a canal  for  that 
purpose,  “provided  that  whereas  it  may  be  necessary  in  the 
prosecution  of  the  foregoing  business  that  the  property  of  private 
persons  may,  as  in  the  case  of  highways,  be  appropriated  to  public 
use.” 

It  was  also  enacted  therein  that  in  the  case  wherein  an}7  person 
shall  be  damaged  in  his  property  by  said  proprietors  in  any  man- 
ner, if  said  proprietors  do  not  make  or  tender  reasonable  satisfac- 
tion to  the  acceptance  of  the  persons  damaged  by  them,  such 
persons  may  apply  within  one  year  for  a committee  to  estimate 
the  damages  so  done  ; and  such  proceedings  shall  be  had,  that  a 
committee  should  be  appointed  to  estimate  the  damages  and  make 
return  thereof  to  the  next  Court  of  General  Sessions  of  the  Peace, 
and  that  execution  should  issue  thereon  with  a right  of  appeal  to  a 
jury  for  an  increase  of  said  damages. 

And  the  jury  or  committee,  as  the  case  might  be,  were  empowered 
to  give  either  a sum  in  gross  for  damages,  or  annual  damages  during 
the  continuance  of  said  damage,  and  the  party  injured  was  to  have 
judgment  and  execution  thereon. 

And  it  was  also  further  enacted  that  the  proprietors  were  author- 
ized and  empowered  to  purchase  and  hold  to  themselves  and  tlieir 
successors  forever , so  much  land  and  real  estate  as  may  be  necessary 
for  the  purpose  aforesaid , not  exceeding  the  value  of  £5,000 ; 
“ provided  that  no  water-course  shall  be  turned  or  altered,  where 
any  mill  is  erected,  so  as  to  injure  such  mill,  without  license  there- 
for, first  had  and  obtained  from  the  General  Sessions  of  the  Peace 
in  the  county  through  which  said  water-course  may  pass.  And 
that  the  said  Court,  on  application  made  to  it  by  said  proprietors, 
shall  observe  the  same  rules  as  are  now  prescribed  by  law  when 
application  is  made  to  them  for  granting  a public  highway.” 

And  the  defendants  further  say  that  by  an  act  in  addition  to  the 
act  above  referred  to,  passed  on  the  28th  day  of  February  in  the 
year  1795,  it  was  enacted  that  “the  property  of  said  proprietors 


Petition. 


445 


in  said  canal,  and  in  any  other  canal  connected  therewith  which 
they  shall  effect  pursuant  to  the  authority  of  the  government,  and 
all  real  estate  of  said  corporation  of  which  the  said  corporation 
shall  be  seized,  shall  be  divided  into  eight  hundred  shares,”  which 
were  to  be  personal  property  for  certain  purposes  ; and  it  was 
further  therein  enacted  by  the  second  section  of  said  act  “ that 
said  corporation  shall  have  power  to  receive  and  hold  real  estate  as 
appendant  to  said  canal , and  for  the  purpose  of  facilitating  its  busi- 
ness, to  the  sum  of  £ 30,000 , over  and  above  the  value  of  the 
canal  itself,  simply  considered  ; ” and  they^  were  further  empow- 
ered to  make  the  waters  of  the  Concord  river  boatable  as  far  as 
Sudbury  causeways,  and  as  much  further  as  the  same  can  be  use- 
fully improved  for  that  end  ; and  to  open  any  canal  at  any  place  in 
said  County  of  Middlesex  that  may  be  necessary  to  connect  the 
Concord  river  with  said  canal  for  that  purpose,  and  that  the  pro- 
prietors shall  be  liable  to  have  damages  recovered  against  them  by 
any  individual  wTho  shall  be  injured  or  damnified  in  his  property  in 
such  new  canal,  by  the  same  mode  of  process  and  the  same  manner 
as  is  in  the  same  act  provided. 

And  said  defendants,  further  answering,  say  that,  under  said 
act  of  incorporation,  survey’s  being  made,  it  was  found  that  it  was 
impossible,  without  great  and  inordinate  expense,  to  take  the 
waters  of  the  Merrimack  river  through  a canal  to  unite  with  the 
waters  of  the  Medford  river  near  Boston,  because  it  appeared  that 
the  waters  of  said  Merrimack  river,  at  a point  wrhere  they  were  to 
come  into  said  canal,  were  some  twenty  or  more  feet  lower  than 
the  waters  of  the  Concord  river  at  said  Billerica,  at  the  point 
where  the  said  canal  must  pass  the  same. 

And  the  defendants,  further  answering,  say,  that  by  an  act,  in 
addition  to  the  several  acts  respecting  the  proprietors  of  the  Mid- 
dlesex Canal,  passed  June  25,  1798,  it  appears  that  u whereas  by 
an  act  passed  February  28th,  1795,  it  is  provided  and  enacted  that 
the  corporation  of  the  said  Middlesex  Canal  shall  be  empowered  to 
hold  real  estate,  as  appendant  to  said  canal,  for  the  purpose  of 
facilitating  the  business  of  the  same,  to  the  value  of  £30,000  over 
and  above  the  value  of  the  canal  itself.  And  the  proprietors  of 
said  canal,  having  expressed  their  doubts  whether  in  virtue  of  said 
act  they  may  erect  and  hold  mills  on  the  same  canal,  and  on  the 
waters  with  which  it  is  or  shall  be  connected ; it  is  enacted  that 
the  corporation  of  the  Middlesex  Canal,  or  the  proprietors  of  said 
canal,  in  their  corporate  capacity,  shall  be  empowered  to  purchase 
and  hold  any  mill  seats  on  the  waters  connected  with  the  same 
canal,  and  lands  to  accommodate  the  same,  and  thereon  to  erect 
mills.” 

And  the  defendants,  further  answering,  sayr,  that  by  an  act,  in 
addition  to  the  several  acts  passed  respecting  the  Middlesex  Canal, 
passed  January  26,  1800,/  it  is  recited  “ that  the  proprietors  of  the 
canal  have  in  their  petition  set  forth  that  from  a reservation  in  the 
acts  already  passed  in  their  favor,  the  government  has  a right  to 
regulate  the  toll  of  goods  carried  on  the  canal  anew  after  the  expi- 
ration of  forty  years,  from  which  provisions  great  discouragements 
and  embarrassments  have  resulted  in  the  execution  of  that  project ; 


446 


Case  of  James  R.  Faulkner. 


therefore  be  it  enacted  that  a toll  of  one-sixteenth  part  of  a dollar 
for  each  ton  carried  one  mile  on  the  same  canal  be  established  for 
said  proprietors  and  their  successors  forever.” 

And  that  afterwards,  by  an  act,  in  addition  to  the  acts  incorpor- 
ating the  proprietors  of  the  Middlesex  Canal,  passed  March  2, 
1803,  said  proprietors  were  allowed  the  term  of  three  years  from 
and  after  the  22d  day  of  June  the  next,  to  complete  the  same 
canal  to  Charles  river,  and  to  effectuate  means  of  communication 
between  said  canal  and  the  town  of  Boston  across  said  Charles 
river  by  boats,  and  were  allowed  the  further  term  of  six  years  to 
render  Concord  river  boatable  and  navigable,  and  for  cutting  their 
canals  in  the  County  of  Middlesex. 

And  the  defendants,  further  answering,  say  that  in  1798,  after 
the  passage  of  said  act  of  that  year,  the  proprietors  of  the  Middle- 
sex Canal  purchased  said  mill  privileges  on  the  Concord  river  at 
Billerica,  and  erected  a dam  for  the  purpose  of  raising  a head  of 
water  to  supply  their  canal,  using  the  surplus  to  operate  their  mills, 
the  grist-mill  formerly  on  said  stream  having  the  first  right ; that 
in  1804  they  completed  their  canal  from  Merrimack  river  to  Charles 
river,  and  opened  it  for  public  navigation,  taking  toll  therefor, 
using  the  head  of  water  so  raised  in  Concord  river  to  feed  their 
canal,  and  the  surplus,  whenever  any  there  was,  to  run  them  said 
mills. 

And  the  defendants,  further  answering,  say,  that  in  1826,  finding 
their  dam  insufficient  to  raise  the  water  for  their  purposes,  said 
proprietors  built  a new  and  more  permanent  dam  in  connection 
with  the  old  one,  which  is  the  dam  now  maintained  by  said  peti- 
tioners. 

And  the  defendants,  further  answering,  sa}T  that  from  the  year 
1804  down  to  the  year  1851  the  proprietors  carried  on  their  canal, 
using  in  the  dry  season  all  the  water  of  the  river  for  keeping  up 
the  navigation  on  their  canal,  and  the  surplus  for  their  own  mills, 
the  canal  retaining  the  first  right  thereto,  and  the  same  proprietors 
claim  to  hold  and  have  the  right  to  use  all  the  water  of  said  river 
for  the  purposes  of  navigation,  and  the  rights  of  the  public  therein 
until  the  same  may  be  lawfully  discontinued  ; and  that  afterwards 
they  applied  for  leave  to  wind  up  their  affairs,  to  the  Supreme 
Judicial  Court  sitting  in  and  for  the  County  of  Suffolk,  which  leave 
was  refused  and  their  petition  dismissed,  and  said  corporation  still 
exists  and  holds  all  said  water  for  a public  use. 

And  the  defendants,  further  answering,  say  that  all  the  water  of 
the  Concord  river,  including  that  of  Sudbury  river,  was  taken, 
held  and  appropriated  forever  to  the  public  use ; to  wit,  to  be 
diverted  from  said  Concord  river,  and  was  so  diverted  into  Charles 
river,  and  the  Merrimack  river,  to  furnish  means  of  navigation  in 
a public  canal,  opening  above  said  dam,  and  that  damages  were 
paid  for  such  public  use  of  said  water,  to  all  persons  having  any 
right  therein,  and  injured  by  such  diversion. 

And  the  defendants,  further  answering,  say  that  the  proprietors 
of  said  Middlesex  Canal  had  not,  under  their  charter  and  the  several 
acts  in  addition  thereto,  any  right  or  power  to  sell,  convey  or  as- 
sign any  right  to  any  person  whomsoever,  to  use  said  water  as 


Petition. 


447 


against  any  other  public  use  of  the  same,  which  taking  of  said 
water  b}'  the  City  of  Boston  is  for  a public  use. 

And  the  defendants,  further  answering,  say  that  said  Middlesex 
Canal  only  took  by  purchase  or  otherwise  the  lands,  waters  and 
water-power  incident  and  appertaining  thereto  and  connected 
therewith  to  u themselves  and  their  successors  for  a public  use  for- 
ever, as  a public  corporation,  and  not  with  power  to  assign,  sell, 
hold  or  make  profit  out  of  the  same  after  they  had  ceased  to  exer- 
cise their  rights  for  a public  use  under  their  charter,  or  surrendered 
their  charter,  and  that  said  mill  privileges  and  all  rights  purchased 
by  them  became  and  were  real  estate  or  property  of  the  shareholders 
of  said  canal,  except  in  so  far  onty  as  the  several  shares  become  per- 
sonal propert}7  for  certain  purposes  set  forth  in  said  acts,  and  are  now 
the  property  of  said  shareholders,  if  the  said  real  estate  has  not 
reverted  to  its  original  owners. 

And  said  defendants,  further  answering,  sa}7  that  said  petitioners 
have  no  other  or  different  rights  in  said  water-power  than  those 
which  the  proprietors  of  said  Middlesex  Canal  have,  or  which  said 
proprietors  have  lost  through  the  forfeiture  of  their  charter  if  the 
same  is  forfeited,  or  may  be  forfeited,  for  non-use. 

Wherefore  the  defendants  ask  to  be  dismissed  of  this  petition, 
and  go  thereof  without  day,  and  for  their  resonable  costs  in  this 
behalf  sustained. 

LINUS  M.  CHILD, 
BENJAMIN  F.  BUTLER, 
Attorney  and  of  Counsel  for  the  City  of  Boston. 

The  evidence  and  title,  so  far  as  it  is  applicable,  put  in 
in  the  case  of  Talbot  et  al.  vs.  City  of  Boston,  as  above 
printed,  to  be  the  only  evidence  upon  which  this  case  is  to  be 
tried,  and  the  arguments  to  be  applied  to  both  cases. 


PETITION  FOR  THE  DISSOLUTION  OF  THE  MIDDLE- 
SEX CANAL  CORPORATION. 

Supreme  Judicial  Court. 

Suffolk , ss.  March  Term , 1852. 

To  the  Honorable  the  Justices  of  the  Supreme  Judicial  Courts  now 
holden  at  Boston , within  and  for  said  County : — 

The  petition  of  the  proprietors  of  the  Middlesex  Canal  humbly 
showeth  that  said  proprietors  were  incorporated  by  an  act  of  the 
Legislature  of  Massachusetts,  passed  June  22,  1793,  and  thereby 
and  by  sundry  acts  additional  thereto,  your  petitioners  were 
authorized  to  construct  and  maintain  a canal  for  the  transporta- 
tion of  passengers  and  freight  from  the  Merrimack  river  to  the 
Charles  river,  and  otherwise,  as  in  said  several  acts,  to  all  of 


448 


Middlesex  Canal  Corporation. 


which1  your  petitioners  beg  leave  to  refer,  will  wore  at  large 
appear. 

And  your  petitioners  further  represent  that  the  said  canal  was 
thereafter  constructed  and  completed  in  accordance  with  the  pro- 
visions of  said  acts,  and  was  opened  to  and  used  by  the  public  for 
many  years,  to  the  great  accommodation  of  the  public  travel  and 
traffic,  and  to  the  great  improvement  and  advantage  of  those  por- 
tions of  the  State  connected  or  traversed  by  said  canal. 

And  your  petitioners  further  represent  that  by  reason  of  circum- 
stances beyond  the  control  of  the  corporation,  the  expense  of  con- 
structing the  said  canal  greatly  exceeded  the  estimates,  and  that 
the  revenue  derived  from  the  same  has  always  been  very  small  in 
comparison  with  the  cost. 

That  your  petitioners  realized  no  profit  or  income  from  their 
investment  for  twenty  years  from  the  commencement  of  the  work, 
and  that  in  1836  the  complete  opening  of  travel  on  the  railroad 
built  b}r  the  Boston  & Lowell  Railroad  Corporation,  and  the 
greater  facilities  thereby  created  for  the  transportation  of  freight 
and  passengers  diverted  from  your  petitioners’  canal  the  greater 
part  of  the  business  from  which  its  support  was  derived,  and  in 
1848  the  completion  of  the  works  for  supplying  the  City  of  Boston 
with  pure  water,  by  cutting  off  some  of  the  most  important  head- 
waters in  seasons  of  drouth,  of  the  said  canal,  have  rendered  the 
supply  of  water  in  the  canal  too  uncertain  and  precarious  to  be 
relied  on  as  a means  of  transportation,  and  the  canal,  in  conse- 
quence thereof,  has  fallen  into  disuse,  and  is  no  longer  of  any 
public  benefit  or  importance,  while  the  necessary  current  expenses 
of  the  said  corporation  in  maintaining  the  same,  amount  to  a very 
large  annual  sum,  beyond  its  receipts.  And  at  a legal  meeting  of 
the  said  corporation,  duly  called  for  that  purpose,  and  holden  on 
the  nineteenth  day  of  May  now  last  past,  a majority  in  interest  of 
all  the  proprietors  being  personally  present  or  duly  represented 
thereat,  it  was,  among  other  things,  unanimously  voted  that  the 
directors  of  the  said  corporation  should  be  thereby  authorized,  in 
behalf  of  all  the  proprietors,  to  apply  to  your  Honors  for  leave  to 
close  the  concerns  of  the  said  corporation. 

Wherefore,  your  petitioners  pray  that  they  may  be  authorized  to 
close  their  concerns,  and  wind  up  their  affairs,  and  that  said  cor- 
poration may  be  dissolved  in  the  manner  provided  by  law*  for  the 
same,  and  that  a decree  for  that  purpose  may  be  passed  by  this 
Honorable  Court ; and  as  in  duty  bound  will  ever  pray,  etc. 

(Signed)  EBEN  CHADWICK, 

President. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Supreme  Judicial  Court. 

Suffolk , ss.  March  Term , 1852. 

Upon  the  foregoing  petition  it  is  ordered,  that  the  petitioners 
give  notice  to  all  persons  interested,  to  appear  before  this  Court,  to 
be  holden  at  Boston,  within  and  for  said  County  of  Suffolk,  on  the 


Petition. 


449 


first  Tuesday  of  October  next,  by  adjournment  from  the  first  Tues- 
daj~  of  March  last,  b}T  publishing  an  attested  copy  of  the  foregoing 
petition,  and  this  order  thereon,  three  weeks  successively  in  the 
Boston  Daily  Advertiser  and  the  Boston  Post,  two  newspapers 
printed  in  said  Boston,  the  last  publication  in  each  of  said  news- 
papers to  be  thirty  days  at  least  before  said  first  Tuesday  of  Octo- 
ber next,  that  they  may  then  and  there  show  cause  why  the  prayer 
of  said  petition  should  not  be  granted 

By  the  Court, 

GEO.  C.  WILDE,  Clerk. 

June  28th,  1852. 


Supreme  Judicial  Court. 

Suffolk,  ss . March  Term , 1853. 

In  re  Proprietors  of  the  Middlesex  Canal , petitioners , etc. 

And  now  the  proprietors  of  the  Sudbury  meadows,  a corpora 
tion  duly  established  by  law,  for  the  purpose  of  improving  the 
meadows  bordering  on  the  Sudbury  river  (and  also,  individually 
as  owners  of  large  and  very  valuable  tracts  of  meadow  lands  bor- 
dering on  said  river),  having  been  served  with  a notice  of  said 
petition,  pray  leave  to  appear  and  show  cause  why  the  prayer  of  the 
said  petitioners  should  not  be  granted,  show  to  the  Honorable 
Court  that  true  it  is  the  petitioners  were  incorporated  as  in  their 
petition  set  forth  ; that  after  long  delays  the  petitioners  constructed 
and  opened  their-  canal  for  the  use  of  the  public  for  water  carriage, 
and  kept  the  same  open  for  a long  time,  to  wit,  till  the  first  day  of 
October,  in  the  year  of  our  Lord  one  thousand  eight  and  fifty-one, 
and  long  before  the  filing  of  their  said  petition  ; when,  in  neglect 
of  their  corporate  duties  and  obligations,  in  violation  of  their  char- 
ter and  to  the  manifest  abandonment  and  disuser  of  their  corporate 
franchises,  said  petitioners  knowingly  and  wilfully  caused  and 
suffered  their  said  canal  to  become  wholly  ruinous,  out  of  repair 
and  unfit  for  use,  and  the  locks  and  sluiceways  thereof  to  be 
broken  down,  filled  up,  and  their  whole  canal  to  be  so  stopped  up 
as  wholly  to  impede  and  hinder  all  navigation  and  water  carriage 
thereon,  and  the  same  to  remain  so  impeded  and  hindered  to  the 
day  of  the  filing  of  their  said  petition. 

And  the  respondents  further  show,  that  in  the  construction  of 
said  canal  and  in  the  course  of  supplying  it  with  water,  heretofore, 
to  wit,  in  the  year  one  thousand  seven  hundred  and  ninety-six,  the 
petitioners  built  a dam  over  and  across  the  Concord  river,  so  called, 
in  the  town  of  Billerica,  which  river  is  a continuation  of  said  Sud- 
bury river,  by  means  of  which  the  waters  of  said  Concord  river 
and  said  Sudbury  river  were  greatly  obstructed  and  hindered,  and 
the  lands  of  your  respondents  were  greatly  overflowed  and  dam- 
aged, which  said  dam  the  petitioners  have  kept  up  and  maintained 
from  thence  to  the  date  of  filing  said  petition,  and  still  do  keep  up 
and  maintain,  whereby  the  lands  of  your  respondents  were  and 
still  are  greatly  overflowed  and  damaged. 

And  your  respondents  further  show  that  the  petitioners,  for  the 


450 


Middlesex  Canal  Corporation. 


purpose  of  increasing  the  water-power  by  which  the}’  worked  said 
canal,  and  for  the  purpose  of  obtaining  power  to  work  certain 
water-mills  which  they  had  acquired  and  intended  to  erect,  and  in 
disregard  of  the  rights  of  your  respondents  and  of  any  injury  caused 
them  thereby,  heretofore,  to  wit,  on  the  twentieth  day  of  August, 
which  was  in  the  year  one  thousand  eight  hundred  and  twrenty- 
eight,  did  erect,  construct  and  finish,  a certain  other  dam  over  and 
across  said  Concord  river,  at  said  Billerica,  a little  way  below  said 
first-mentioned  dam  ; which  last  erected  dam  was  higher,  tighter 
and  broader  than  said  first-mentioned  dam,  and  by  itself  and  cer- 
tain injurious  contrivances  called  flash-boards,  by  said  petitioners 
kept  up,  caused  the  water  of  said  river  to  flow  back  to  a much 
greater  height,  and  to  set  back  in  and  upon  the  lands  of  said 
respondents  for  a longer  space  of  time  during  each  year,  and  to  a 
greater  extent,  than  had  ever  before  been  done  : which  last  erected 
dam  the  petitioners  have  kept  up  and  maintained  from  thence,  to 
the  date  of  the  filing  of  said  petition,  and  still  do  keep  up  and 
maintain ; whereby  the  lands  of  your  respondents  are  greatly 
damaged,  and  rendered  nearly  valueless,  and  said  Sudbury  river 
is  wholly  impeded  and  obstructed,  and  the  cost  of  clearing  the 
same  greatly  enhanced. 

And  your  respondents  further  show  and  aver  that  their  lands 
were  of  great  value,  to  wit,  the  value  of  one  hundred  thousand 
dollars,  and  were  greatly  injured  and  damaged  as  aforesaid,  by  the 
acts  and  doings  of  the  petitioners  in  the  premises  ; yet,  for  all  such 
injury  and  damage,  or  for  any  part  thereof,  your  respondents, 
although  seeking  reparation  by  every  means  which  they  were  ad- 
vised and  believed  lawful  and  without  any  fault  on  the  part  of  your 
respondents,  have  never  received  or  obtained  any  satisfaction,  re- 
muneration or  compensation  whatever,  either  from  said  petitioners 
or  an}T  other  source. 

And  your  respondents  are  informed  and  believe,  that  although 
true  it  is,  that  said  canal  has  been  closed  up  and  abondoned,  as  is 
hereinbefore  set  forth,  and  although  the  purpose  for  which  said 
head  of  water  was  raised,  and  the  lands  of  your  respondents  over- 
flowed as  aforesaid,  no  longer  exists,  and  all  the  rights,  immunities 
and  privileges  in  any  way  taken  from  your  respondents  by  said  peti- 
tioners, for  the  purpose  of  furnishing  the  public  with  the  means  of 
water-carriage  along  said  canal,  ought  of  right  to  revert  to  your 
respondents,  so  that  these  lands  be  no  longer  burdened  therewith, 
or  the  purposes  and  designs  of  your  respondents  hindered  thereby  ; 
yet  the  petitioners,  while  they  have  lain  down  the  burden  because 
of  which  they  were  by  law  authorized  to  erect  said  dams  and  water- 
works before  described,  and  no  longer  supply  the  public  travel  with 
any  wrater  carriage  by  means  of  the  head  of  water  so  raised,  are 
endeavouring,  either  by  themselves  or  those  persons  to  whom 
they  have  wrongfully  conveyed  the  said  dams  and  the  water-works 
therewith  connected,  to  maintain  and  keep  up  said  dams  and  head 
of  wrater  aforesaid,  for  the  purpose  of  working  certain  water-mills, 
thereby  taking  the  profit  of  the  land  of  your  respondents,  without 
compensation. 

And  your  respondents  further  aver  that  all  persons  who  may 


Answer. 


451 


protend  to  have  purchased  or  acquired  any  rights  to  said  dams,  or 
the  water-power  raised  thereby,  have  taken  or  acquired  the  same 
with  the  full  knowledge  of  the  limitations,  liabilities,  restrictions 
and  trusts  under  which  said  water-power  and  dams  were  held  by 
said  petitioners,  and  of  the  rights  and  claims  of  your  respondents. 
All  which  actings  and  doings  are  contrary  to  equity  and  good  con- 
science, and  tend  to  the  manifest  injury  and  wrong  of  your  respon- 
dents. Wherefore,  your  respondents  humbly  pray  that  the  prayer 
of  said  petitioners  be  not  granted,  and  that  said  corporation  be 
not  dissolved  by  a decree  of  this  Honorable  Court,  or  anything  be 
done  here,  by  which  the  stockholders  in  said  corporation  be  re- 
leased from  any  personal  liability  to  which  they  may  now  be  sub- 
ject, until  the  petitioners  remove  said  dam  by  them  erected  as 
aforesaid,  and  restore  the  bed  of  said  river  to  its  former  condition 
as  near  as  may  be,  and  relieve  the  land  of  your  respondents  from 
flowing  and  damage  by  them  caused  and  maintained. 

And  your  respondents  further  pray  that  said  petitioners,  by  a 
definitive  decree  of  this  Honorable  Court,  may  be  enjoined  from 
maintaining  further,  said  dams  ; and  that  they  be  ordered  to  re- 
move the  same  at  their  own  expense,  in  such  manner  as  this 
Honorable  Court  may  order,  so  that  the  lands  of  your  respondents 
may  no  longer  be  wrongfully  injured  thereby,  and  your  respondents 
hindered  in  the  removal  of  obstructions  in  said  Sudbury  river,  and 
in  the  improvements  of  the  meadows  lying  adjacent  thereto, 
and  for  such  other  and  further  remedies  in  the  premises  as  to  this 
Honorable  Court  may  seem  meet. 

And  your  respondents  will  ever  pray  as  in  duty  bound. 

(Signed) 

Proprietors  of  Sudbury  River  Meadows , 

By  B.  F.  BUTLER. 


Supreme  Judicial  Court. 

Suffolk , ss.  November  Term , 1852. 

The  Proprietors  of  the  Middlesex  Canal,  Petitioners,  etc. 

THE  ANSWER  OF  JAMES  R.  FAULKNER  AND  CHARLES 
FAULKNER. 

And  now  James  R.  Faulkner  and  Charles  Faulkner  come  and 
object  to  the  granting  of  the  prayer  of  said  petitioners,  and  as  the 
reason  of  their  said  objection,  represent  and  give  this  Honorable 
Court  to  be  informed  as  follows  : — 

These  respondents  answering  say  that  in  the  }^ear  1796,  the  said 
proprietors  of  the  Middlesex  Canal,  soon  after  their  incorporation, 
and  acting  under  and  by  virtue  of  their  charter,  erected  and 
built  a dam  across  Concord  river,  at  the  Canal  Mills,  so  called,  in 
Billerica,  in  the  County  of  Middlesex,  for  the  purpose  of  feeding 
and  supplying  their  said  canal  with  water. 

That  by  the  erection  of  said  dam,  valuable  water-rights  or  mill 
privileges  were  created,  which  belonged  to  and  were  the  property 
of  said  proprietors. 


452 


Middlesex  Canal  Corporation. 


That  subsequently,  on  the  4th  day  of  Ma}^,  A.D.  1825,  the  said 
proprietors  being  still  the  owners  of  said  water-rights  or  mill 
privileges,  conveyed  to  Francis  Faulkner,  the  father  of  these 
respondents,  late  of  said  Billerica,  but  now  deceased,  b}T  a good 
and  sufficient  deed  of  warranty,  for  the  consideration  of  twenty- 
five  hundred  dollars,  a certain  portion  of  said  water-rights  or  mill 
privileges,  together  with  certain  real  estate  situated  in  the  vicinity 
of,  and  adjoining  to,  said  dam  and  mill  piivileges,  which  said  con- 
veyance of  said  water-power  was  in  the  following  words : — 

“And  the  said  corporation  do  also  grant  by  these  presents,  unto 
said  Faulkner,  his  heirs  and  assigns,  the  privilege  of  using  the 
water  w'hich  passes  through  one-half  of  the  creek  leading  from  the 
mill-pond  to  the  fulling-mill  in  the  channel  as  it  now  runs,  under 
the  mill  now  in  the  possession  of  said  Faulkner,  for  the  purpose  of 
working  said  mill  and  factory  as  it  now  is  connected  therewith 
whenever  the  exercise  of  such  privilege  shall  not  deprive  the 
grantors  or  their  assigns  of  an  ample  and  sufficient  supply  of 
water  for  all  purposes  and  occasions,  not  exceeding,  however,  the 
quantity  which  is  or  may  be  requisite  for  the  Middlesex  Canal  and 
to  carry  the  grist-mills  and  saw-mills  of  said  grantors  as  they  now 
are,  whether  used  bjr  the  grantors  or  others  to  whom  they  may 
choose  to  sell  or  dispose  of  the  same  for  the  same  or  any  other 
purpose.” 

And  said  proprietors  in  said  deed  further  covenant  “that  they 
will  warrant  and  defend  the  same  premises  to  said  Faulkner,  his 
heirs  and  assigns  forever,  against  the  lawful  claims  and  demands 
of  all  persons,  and  that  in  case  they  hereafter  grant  to  any  person 
or  persons  a right  to  use  the  water  which  passes  through  the  half 
of  the  creek  mentioned  above,  and  which  remains  at  the  disposal 
of  said  corporation,  the  grantee  or  grantees  thereof  shall  not  be 
authorized  to  use  the  water  passing  through  said  half  of  said 
creek  after  the  water  in  the  pond  ceases  to  run  over  the  top  of  the 
dam,  and  is  within  three-quarters  of  an  inch  of  the  top  thereof,  in 
order  to  secure  to  said  Faulkner,  his  heirs  and  assigns,  the  exclu- 
sive use  of  the  water  in  said  creek  during  the  continuance  of  said 
grant  when  the  water  ceases  to  run  over  the  dam  and  is  within 
three-quarters  of  an  inch  of  the  top  thereof.” 

All  which  will  more  fully  appear  by  reference  to  said  deed,  but 
which  need  not  be  here  more  fully  set  forth. 

And  these  respondents  further  answering,  say,  that  on  the  15th 
day  of  March,  A.  D.  1826,  the  said  proprietors  conveyed  by  good 
and  sufficient  deed  of  warranty  another  portion  of  said  water- 
rights  or  mill  privileges  to  one  Nathan  Mears,  who  subsequently 
conveyed  the  same  or  a portion  thereof  to  the  said  Francis  Faulk- 
ner, by  deed  or  deeds  in  due  form  ; all  which  will  more  fully  appear 
by  reference  to  the  Records  of  Deeds  for  said  County  of  Middle- 
sex, where  the  same  are  duly  recorded,  but  which  need  not  be  here 
set  forth. 

And  these  respondents  further  answering  say,  that  subsequently 
to  the  aforesaid  conve}*ance  from  said  proprietors  to  said  Francis 
Faulkner,  the  said  Francis  Faulkner  erected  mills,  factories,  store- 
houses and  other  buildings,  for  the  manufacture  of  woollen  goods, 
upon  the  lands  conveyed  to  him  as  aforesaid,  by  said  proprietors, 


Answer. 


453 


the  water-power  for  the  carrying  on  of  which  said  mills  and  facto- 
ries, was  the  water-power  purchased  by  said  Francis  Faulkner,  of 
said  proprietors,  and  of  those  claiming  as  aforesaid  : 

That  thereafter  during  his  lifetime,  the  said  Francis  Faulkner, 
and  since  his  decease,  these  respondents,  who  are  now  the  owners, 
and  in  possession  of  said  mills  and  factories,  deriving  their  title  to 
the  same  from  said  Francis  Faulkner,  and  having  all  his  rights  and 
interests  in  and  to  said  water-rights  or  mill  privileges,  and  all  his 
claims  and  remedies  for  injuries  thereto  against  said  proprietors, 
under  their  said  deed  or  deeds  of  warranty  to  him,  or  to  those  from 
whom  he  purchased,  have  carried  on  and  still  do  carry  on  the 
business  of  manufacturing  woollen  goods  in  said  mills  and  factories, 
which  said  property  is  of  great  value,  to  wit,  of  the  value  of  fifty 
thousands  dollars. 

And  these  respondents  further  answering  say,  that  they  are 
informed  and  believe  that  the  owners  of  meadow  lands,  situated  in 
the  Town  of  Sudbury  and  East  Sudbury,  adjoining  said  Concord 
river,  allege  that  the  erection  of  said  dam,  has  ever  since  caused 
the  water  of  said  Concord  river  to  flow  back,  and  to  overflow  the 
said  meadows,  by  which  the  crops  of  grass  thereon  have  been 
injured  and  destroyed,  and  also  that  the  rebuilding  or  repairing  of 
said  dam  in  1826  has  caused  said  waters  to  flow  back,  and  overflow 
said  meadows  ever  since  to  a greater  extent  than  before  such 
repairing  or  rebuilding — and  claim  the  right  to  have  said  dam 
cut  down  in  part,  so  that  the  waters  of  said  Concord  river,  may 
flow  unobstructed  and  unimpeded  by  said  dam,  so  far  as  the  same 
has  been  heightened  or  enlarged,  at  any  time,  by  said  proprietors ; 
and  that  said  owners  of  said  meadows  threaten  and  intend,  so  soon 
as  said  corporation  shall  be  dissolved,  to  institute  legal  proceed- 
ings for  the  purpose  of  procuring  the  cutting  down  of  said  dam,  as 
it  existed  before  it  was  built  or  enlarged  by  said  proprietors, 
alleging  and  claiming  that  said  proprietors  derive  their  right  to 
cause  the  overflowing  of  said  meadows  solely  under  and  by  virtue 
of  their  said  charter. 

And  these  respondents  further  answering  say,  that  any  diminu- 
tion of  the  present  height  of  said  dam  would  utterly  destroy  their 
said  rights  or  mill  privileges,  and  render  them  of  no  value,  by  rea- 
son of  reducing  the  present  head  of  water. 

And  these  respondents  further  answering  say,  that  if  the  prayer 
of  said  petitioners  should  be  granted,  and  said  corporation  be  dis- 
solved, these  respondents  would  be  wholly  without  remedy  against 
said  proprietors,  as  warrantors  in  the  deeds  aforesaid,  and  espec- 
ially in  the  deed  bearing  date  May  4,  A.  D.  1825,  before  mentioned, 
in  case  of  the  breach  of  the  warranty  or  guaranties  therein  con- 
tained, by  being  deprived  of  the  water-power  granted  them  in  the 
said  deeds. 

Wherefore  these  respondents  pray,  that  their  reasonable  objec- 
tions to  the  granting  of  the  prayer  of  said  petitioners  may  be 
sustained  by  this  Honorable  Court,  and  said  petition  be  dismissed. 

JAMES  R.  FAULKNER, 
CHARLES  FAULKNER. 

By  their  Attorney , 

GEORGE  H.  PRESTON. 


454 


Middlesex  Canal  Corporation. 


Suffolk,  ss.  March  Term , A.  D.  1853. 

Proprietors  of  Middlesex  Canal,  Petitioners,  etc. 

And  now  Charles  P.  Talbot,  of  Lowell,  in  the  County  of 
Middlesex,  and  Thomas  Talbot,  of  Billerica,  in  said  county,  manu- 
facturers, respectfully  represent  to  this  Honorable  Court  that  they 
are  parties  interested  in  the  subject-matter  of  the  petition  of  said 
proprietors  of  the  Middlesex  Canal,  and  in  the  objections  and 
prayer  of  proprietors  of  the  Sudbury  meadows  contained  in  their 
answer  filed  in  this  cause,  because  they  are  the  owners  of  a large 
tract  of  land  situate  in  said  Billerica,  on  both  sides  of  Concord 
river,  where  the  same  is  crossed  by  the  Middlesex  Canal,  together 
with  a dam  across  said  river,  with  extensive  and  valuable  mill- 
privileges  in  the  waters  of  said  river  created  by  said  dam,  and  also 
valuable  water-mills  situate  upon  said  lands ; and  the  said  Talbots 
give  this  Honorable  Court  to  be  informed  that  said  lands,  dam,  and 
water-rights  and  privileges  and  mills  were  before  the  presentation 
of  said  petition  in  this  case  conveyed  to  them  in  fee  simple  by  said 
proprietors  [of  the  Middlesex  Canal  by  deed,  duly  executed  and 
recorded ; that  the  said  dam  across  said  river,  by  which  said  water 
and  mill-privileges  are  created  and  kept  in  operation,  was  also 
used  to  furnish  a supply  to  the  said  Middlesex  Canal,  but  that  the 
right  to  maintain  said  dam  for  the  purpose  of  creating  a mill- 
privilege  and  water-power  rightfully  and  legally  existed  for  a great 
length  of  time  before  the  creation  of  the  said  proprietors  as  a cor- 
poration ; and  that  the  said  land  and  dam,  and  the  mill-privileges 
and  water-power  aforesaid  was  purchased  by  the  said  proprietors, 
and  was  not  taken  by  them  by  virtue  of  their  act  of  incorporation ; 
and  that  the  same  dam,  after  said  purchase,  was  made  for  the  pur- 
pose of  driving  and  running  the  water-mills  aforesaid,  and  also  for 
the  purpose  of  supplying  said  canal ; that  the  said  proprietors  of 
the  Middlesex  Canal  conveyed  said  lands,  dam,  mills,  and  the 
water-privileges  thereto  appertaining,  to  said  Talbots  in  fee  simple, 
whereby  the  said  Talbots  acquired  the  right  to  the  same,  and  to 
keep  up  and  maintain  said  dam  for  the  purpose  of  driving  and  run- 
ning water-mills,  and  ought  not  to  be  affected  by  the  dissolution  of 
the  said  proprietors  of  Middlesex  canal  as  a corporation,  or  by  any 
decree  of  the  Court  authorizing  the  same.  And  the  said  Talbots 
further  aver  that  the  said  dam  is  the  same  described  in  the  answer 
of  the  proprietors  of  the  Sudbury  meadows  filed  in  this  case ; and 
that  the  right  to  keep  up  and  maintain  the  same  was  not  acquired 
by  and  under  the  act  incorporating  the  proprietors  of  the  Middlesex 
Canal,  but  existed  long  before  the  establishment  of  said  corpora- 
tion ; that  the  same,  and  the  lauds  upon  which  it  is  built,  and  all 
the  water-rights,  privileges  and  powers  upon  and  appurtenant 
thereto  belong  to  the  said  Talbots  in  fee  simple,  and  that  the}’  have 
the  right  to  keep  up  and  maintain  said  dam,  independent  of,  and 
not  derived  from,  the  act  of  incorporation  of  the  said  proprietors 
of  the  Middlesex  Canal. 

Wherefore  the  said  Charles  P.  and  Thomas  Talbot  humbly  pray 
that  no  decree  of  this  Honorable  Court  in  the  premises  be  made 


Answer. 


455 


affecting  the  rights  of  said  respondents  to  keep  and  maintain  said 
dam,  and  to  use  the  water-power  and  privileges  thereby  created, 
or  ordering  said  dam  to  be  cut  down  and  removed,  as  prayed  for 
by  the  proprietors  of  the  Sudbury  meadow  in  their  answer  filed  in 
this  cause. 

CHAS.  P.  and  THOMAS  TALBOT, 

By  their  Solicitors , 

ABBOTT  & BROWN. 


Supreme_  Judicial  Court. 

Suffolk , ss.  October  Term,  1863. 

November  17,  1863. 


Proprietors  of  Middlesex  Canal  Petitioners,  to  close  concern. 


It  is  agreed  that  the  above  petition  be  dismissed  without  costs 
to  either  party. 


S.  L.  THORNDIKE, 


J.  G.  ABBOTT,  For  Petitioners . 

GEO.  H.  PRESTON, 

For  Respondents. 


COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss. 

At  the  Supreme  Judicial  Court,  sitting  at  Boston,  in  said  County 
of  Suffolk,  for  the  hearing  of  cases  in  equity,  at  the  October  Term 
of  said  Court,  begun  and  holden  the  first  Tuesday  of  October, 
being  the  sixth  day  of  said  month,  in  the  year  of  our  Lord 
eighteen  hundred  and  sixty-three,  and  on  other  days  between  the 
first  Tuesday  of  October  in  the  said  year  and  the  first  Tuesday  of 
April,  eighteen  hundred  and  sixty-four. 

Proprietors  of  the  Middlesex  Canal,  Petitioners,  for  leave 

TO  CLOSE  ITS  CONCERNS. 

And  now  it  is  ordered,  with  the  agreement  of  parties,  that  this 
petition  be  dismissed,  without  costs. 


COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss. 

I,  John  Noble,  Clerk  of  the  Supreme  Judicial  Court  within  and 
for  said  County  of  Suffolk,  hereby  certify  that  the  foregoing  is  a 
true  copy,  as  appears  of  record. 

In  witness  whereof,  I have  hereunto  set  my  hand  and  affixed  the 
seal  of  said  Court  this  twenty-ninth  day  of  December,  in  the  year 
of  our  Lord  eighteen  hundred  and  seventy-five. 

JOHN  NOBLE, 

Clerk. 


456 


Argument  or  Gen.  Butler. 


CLOSING  ARGUMENT  OF  GEN.  BUTLER  FOR  THE 

DEFENCE. 

May  it  please  your  Honors: — For  convenience’  sake,  by 
arrangement  with  my  brother,  we  will  argue  the  two  cases 
as  though  they  were  together,  and  thus  save  the  necessity  of 
twice  going  over  the  matter ; for  they  both  stand  upon  pre- 
cisely the  same  principles  of  law,  and  only  dilfer  in  fact  by 
the  one  petitioner  being  entitled  to  the  surplus  water  sub 
modo , and  the  other  being  entitled  to  the  water  up  to  the 
surplus,  under  certain  conditions  which  are  set  forth  in  the 
testimony. 

These  causes  raise  some  peculiar  and  interesting  questions 
of  law,  which  have  not  been  previously  decided  in  this  Com- 
monwealth,— although  analogous  questions  have  been  so 
decided, — which  we  think  will  lead  to  the  conclusion  that 
the  gentlemen  petitioners  do  not  own  the  water , what- 
ever may  be  the  state  of  title  as  to  the  land , at  Billerica 
mills.  They  both  claim,  under  conveyances  from  the  Mid- 
dlesex Canal.  There  is  no  evidence  of  the  manner  in  which 
the  Middlesex  Canal  acquired  their  title,  either  to  the  land 
or  water,  except  to  the  old  grist-mill,  and  a small  portion  of 
land  on  the  west  side  of  Concord  river.  That-  appears  to 
have  been  acquired  by  deed  from  the  proprietor,  Mr. 
Osgood,  who  acquired  it  by  vote  from  the  town  of 
Billerica ; and  while  it  does  not  appear  what  the  title  of 
Billerica  was  to  it,  yet  I suppose  that  it  may  well  enough 
have  been  settled  by  long  user  and  enjoyment.  Your 
Honors  are  left,  therefore,  in  doubt,  or  rather  without  infor- 
mation, as  to  what  was  the  title  of  the  Middlesex  Canal ; 
whether  they  took  it  by  right  of  eminent  domain,  by  force  of 
their  charter,  or  whether  they  acquired  any  portion  of  the 
land  by  deed.  It  becomes  necessary,  in  the  first  place,  to 
see  exactly  what  was  the  nature  of  the  corporation  of  the 
Middlesex  Canal,  and  to  trace  its  legislative  history.  It  was 
originally  incorporated  by  an  act  passed  June  22,  1793, 
found  in  Special  Laws,  volume  1,  page  465,  et  seq.  It  was 
a custom  in  those  days  in  granting  corporate  acts,  to  grant 
them  in  very  different  form  and  with  different  powers  from 
what  have  come  to  be.  the  corporate  powers  since  that  time. 
Indeed,  this  is  one  of  the  very  earliest  of  the  corporate  acts 
of  Massachusetts. 


Argument  of  Gen.  Butler. 


457 


"An  Act  for  Incorporating  James  Sullivan,  Esquire, 

AND  OTHERS,  BY  THE  NAME  AND  STYLE  OF  THE  PRO- 
PRIETORS of  the  Middlesex  Canal. 

" Whereas,  James  Sullivan,  Esq.,  and  others,  have  peti- 
tioned to  be  incorporated  for  the  purpose  of  cutting  a canal 
from  the  waters  of  Merimack  river  into  the  waters  of  Med- 
ford river ; and  whereas,  it  is  represented  that  sundry 
persons  are  ready  to  raise  funds  sufficient  for  the  purpose  of 
opening  the  same  canal : — 

" Sect.  1.  Be  it  therefore  enacted  by  the  Senate  and  House 
of  Representatives , in  General  Court  assembled , that  the 
said  James  Sullivan , Oliver  Prescott , James  Wintlirop , 
Loammi  Baldwin , Benjamin  Hall , Jonathan  Porter , An- 
drew Hall , Ebenezer  Hall , Samuel  Tufts , jun .,  Aaron 
Brown , Willis  Hall,  Samuel  Swan,  jun.,  and  Ebenezer  Hall, 
jun.,  their  associates  and  successors,  are  hereby  incorpo- 
rated, and  shall  be  a corporation  forever,  under  the  name  of 
The  Proprietors  of  the  Middlesex  Canal,  and  by  that  name 
may  sue  and  prosecute,  and  be  sued  and  prosecuted,  to  final 
judgment  and  execution ; and  shall  be,  and  hereby  are, 
vested  with  all  the  powers  and  privileges  which  are  by  law 
incident  to  corporations  of  a similar  nature. 

" Sect.  2.  And  be  it  further  enacted  by  the  authority 
aforesaid.  That  the  said  proprietors,  or  any  three  of  them, 
may  make  their  application  to  any  justice  of  the  peace  for 
the  County  of  Middlesex,  requesting  him  to  call  a meeting  of 
the  said  proprietors,  to  be  holden  at  some  convenient  place 
within  the  town  of  Medford,  in  the  same  county ; whereupon 
such  justice  is  hereby  empowered  to  issue  his  warrant  to  one 
of  said  proprietors,  directing  him  to  warn  and  notify  said 
proprietors  to  meet  at  such  time  and  place  in  said  town  of 
Medford,  as  he  shall  therein  direct,  and  agree  on  such 
method  as  may  be  thought  proper  for  calling  meetings  of 
said  proprietors  for  the  future,* and  to  do  and  transact  such 
matters  and  things  relating  to  the  said  propriety,  as  shall  be 
expressed  in  the  warrant. 

" And  the  proprietor  to  whom  such  warrant  shall  be  di- 
rected, shall  give  notice  to  said  proprietors,  by  causing  the 
same,  or  the  substance  thereof,  to  be  published  in  one  of  the 
Boston  newspapers  fourteen  days  before  the  holding  of  said 
meeting,  and  make  return  thereof,  under  his  hand,  to  the 
same  meeting,  to  be  lodged  with  the  clerk  that  shall  be  then 
and  there  chosen.  And  the  said  proprietors  may,  at  the 
same  or  any  other  legal  meeting,  choose  a clerk,  treasurer, 
and  other  officer  or  officers  of  the  corporation,  that  they  may 
deem  necessary ; and  also  may  choose  a committee  for  order- 


458 


Argument  of  Gen.  Butler. 


ing  and  regulating  the  business  and  affairs  of  the  said  cor- 
poration ; and  every  proprietor  shall  have  a right  to  vote  in 
the  proprietary  meetings,  according  to  his  share  and  interest, 
in  person  or  by  representation,  in  the  following  ratio,  viz.  : 
From  one  hundred  to  three  hundred  dollars,  inclusive,  there 
shall  be  allowed  one  vote ; from  the  three  hundred  and  one 
to  six  hundred  dollars , inclusive,  shall  be  allowed  one  vote 
more ; and  for  every  thousand  above  one  thousand  shall  be 
allowed  one  vote  more ; provided,  no  one  proprietor  shall 
have  more  than  twenty  votes  ; all  representations  to  be  proved 
in  writing,  signed  by  the  person  making  the  same,  by  special 
appointment,  which  shall  be  filed  with  and  recorded  by  the 
clerk ; and  this  act  and  all  rules,  regulations,  and  votes  of 
the  said  corporation  shall  be  fairly  and  truly  recorded  by  the 
said  clerk  in  a book  or  books  for  the  purpose  to  be  provided 
and  kept ; provided,  that  whereas  it  may  be  necessary  in  the 
prosecution  of  the  foregoing  business,  that  the  property  of 
private  persons  may  (as  in  the  case  of  highways)  be  appro- 
priated for  the  public  use ; in  order  that  no  person  may  be 
damaged  by  the  digging  and  cutting  canals  through  his  land, 
by  removing  mills  or  mill-dams,  diverting  water-courses,  or 
flowing  his  land,  by  the  proprietors  aforesaid,  without  re- 
ceiving full  and  adequate  compensation  therefor. 

" Sect.  3.  Be  it  enacted  by  the  authority  aforesaid.  That 
in  all  cases  where  any  person  shall  be  damaged  in  his  prop- 
erty by  the  said  proprietors,  for  the  purposes  aforesaid,  in 
manner  as  is  above  expressed,  or  in  any  other  way,  and  the 
proprietors  aforesaid  do  not,  within  twenty  days  after,  being 
requested  thereto,  make  or  tender  reasonable  satisfaction  to 
the  acceptance  of  the  person  damaged  by  them  as  aforesaid,  the 
person  so  damaged  may  apply  to  the  Court  of  the  General 
Sessions  of  the  Peace,  for  the  county  in  which  the  damage 
shall  have  been  sustained,  to  have  a committee  appointed  by 
said  Court  at  his  own  expense,  to  estimate  the  damage  so 
done ; and  the  said  Court  are  hereby  authorized  and  em- 
powered by  warrant  under  the  seal  thereof,  upon  such  ap- 
plication made,  if  within  one  year  from  the  time  of  the 
damage  done  as  aforesaid,  to  appoint  a committee  of  five  dis- 
interested freeholders  in  the  same  county,  to  estimate  the 
damages ; which  committee  shall  give  seasonable  notice  to 
the  persons  interested,  and  to  the  clerk  of  the  proprietors 
aforesaid,  of  the  time  and  place  of  their  meeting ; and  they 
shall  be  under  oath  to  perform  said  service,  according  to 
their  best  skill  and  judgment,  which  having  done,  they,  or 
the  major  part  of  them,  shall  make  return  thereof,  under 
their  hands  and  seals,  to  the  next  Court  of  General  Sessions 
of  the  Peace  to  be  holden  in  said  county,  alter  the  same  ser- 


Argument  of  Gen.  Butler. 


459 


vice  is  performed,  to  the  end  that  the  same  may  be  accepted, 
allowed,  and  recorded ; and  the  committee  so  empowered 
are  required  to  estimate  the  said  damage  and  make  return 
thereof  as  aforesaid ; and  if  the  estimate  of  the  committee 
be  accepted  by  the  Court,  the  clerk  of  the  Court  is  hereby 
authorized  and  directed  on  application  therefor  to  issue  an 
execution  against  the  property  only  of  the  corporation,  or 
of  any  individuals  belonging  thereto,  for  the  sum  so  adjudged 
in  damages ; provided , the  same  is  not  paid  within  twenty 
days  after  the  acceptance  of  said  report,  and  likewise  for  the 
cost  of  the  said  committee  and  fees  of  the  Court,  both  to  be 
allowed  by  the  Court ; provided , the  sum  of  damages  esti- 
mated by  the  committee  exceed  the  sum  of  damages  so  ten- 
dered. But  in  case  the  proprietors  actually  tendered  to  the 
person  complaining,  before  the  complaint  was  exhibited,  a 
sum  as  great  as  that  allowed  by  the  Court  in  damages,  then 
nothing  to  be  included  in  the  execution  for  costs  of  commit- 
tee or  Court.  The  execution  to  be  issued  by  the  clerk  of 
the  Court,  to  be  in  the  same  terms,  mutatis  mutandis , and 
returnable,  in  the  same  time  as  though  judgment  had  been 
rendered  against  said  corporation  for  a like  sum,  in  damages, 
on  process  in  the  Court  of  Common  Pleas  ; and  if  nny  per- 
son find  himself  aggrieved  by  the  doings  of  said  committee, 
in  estimating  damages,  he  may  apply  to  said  Court  of  Gen- 
eral Sessions  of  the  Peace ; provided , such  application  be 
made  to  the  same  Court,  at  the  next  session  thereof,  in  the 
same  county,  after  the  acceptance  of  such  return ; and  said 
Court  is  empowered  to  hear  and  finally  determine  the  same, 
by  a jury  under  oath,  to  be  summoned  by  the  sheriff  or  his 
deputy  for  that  purpose,  if  the  person  complaining  desires 
the  same,  or  by  a committee,  if  the  person  complaining  and 
the  proprietors  can  agree  thereon. 

And  if  the  jury  or  committee,  agreed  on  as  aforesaid,  who 
are  to  be  under  oath,  shall  not  increase  the  sum  of  damages, 
the  person  complaining,  shall  be  at  the  cost  arising  on  such 
complaint,  to  be  taxed  against  him  by  the  said  Court,  other- 
wise such  cost  and  increase  of  damages  shall  be  paid  by  the 
proprietors,  and  execution  to  issue  therefor,  as  aforesaid  ex- 
pressed. And  it  shall  be  the  the  duty  of  such  committee  or 
jury,  on  application  of  either  of  the  parties,  and  reasonable 
notice  given  to  all  persons  interested,  to  determine  where  and 
how  many  bridges  shall  be  made  and  maintained  by  said 
proprietors  over  the  canal  aforesaid,  and  how  the  same  shall 
be  constructed,  and  what  damages  shall  be  paid  by  the  pro- 
prietors for  neglecting  to  make  and  maintain  such  bridges  ; and 
the  report  of  such  committee  or  verdict  of  such  jury  being  re- 
turned into  the  same  court,  and  being  allowed  and  recorded, 


460 


Argument  of  Gen.  Butler. 


shall  be  a sufficient  bar  against  any  action  brought  for  dam- 
ages aforesaid,  saving  only  that  where  the  sum  ot  damages 
is  not  estimated  at  a sum  in  gross  for  the  full  satisfaction 
thereof,  but  a yearly  sum  is  assessed ; in  such  case  the  com- 
plainant shall  be  entitled  to  an  action  of  debt  for  the  recovery 
of  the  same,  so  often  as  the  same  becomes  due,  during  the 
continuance  of  the  damage  done  or  suffered  as  aforesaid,  and 
also  for  the  recovery  of  the  damages  for  neglecting  to  make 
and  maintain  the  bridges,  as  often  as  the  same  is  demandable  ; 
provided,  That  no  part  of  the  waters  of  the  Shawshine  river 
shall  be  diverted  from  their  natural  course  for  the  purpose 
aforesaid ; and  that  no  dwelling-house  shall  be  removed  or 
water-course  turned  or  altered  whereon  any  mill  is  erected, 
so  as  to  injure  such  mill,  without  license  therefor,  first  had 
and  obtained  from  the  Court  of  General  Sessions  of  the 
Peace  of  the  county  in  which  such  house  may  stand,  or 
through  which  such  water-course  may  pass ; and  the  said 
Court  of  Sessions,  on  application  made  to  them  by  the  said 
proprietors,  shall  observe  the  same  rules  as  are  prescribed  by 
law,  when  application  is  made  to  them  for  granting  a public 
highway.  Provided , also , that  the  waters  of  Merrimack 
river  shall  not  be  so  diverted  from  their  natural  course  as  to 
impede,  or  any  way  interrupt  the  water  carriage  down  the 
Merimack  river  to  the  mouth  thereof.” 

As  you  have  already  heard,  the  Concord  river,  at  the  place 
where  the  canal  closes,  is  about  28  to  30  feet  higher  than  at 
the  place  where  the  canal  entered  it.  You  will  see  that  im- 
mediately by  a little  calculation.  There  is  about  thirty  feet 
fall  from  the  place  where  the  canal  entered  the  Merrimack 
river,  down  to  the  mouth  of  the  Concord,  on  the  one  side. 
At  Billerica  there  is  eleven  feet  fall.  At  the  Wamesit  dam 
there  is  twenty-six  feet  fall.  At  the  Massuc  dam  there  is 
eight  feet  fall.  At  the  Middlesex  below  there  eleven  feet 
fall,  and  then  there  is  a very  considerable  fall  where  the  two 
meet  at  the  mouth,  — leaving  twenty-eight  or  thirty  feet  fall ; 
so  that  it  was  impossible,  if  the  Legislature  had  known  it,  or 
the  projectors  had  known  it,  to  have  diverted  the  water 
of  the  Merrimack  river  into  the  Medford  river,  as  the 
charter  provides.  Therefore  it  became  necessary  to  take  the 
Concord  for  a feeder ; and  it  is  a little  remarkable  in  this 
legislation  that  there  is  no  provision  made  for  that  anywhere  ; 
but  it  is  an  express  restriction  that  they  shall  not  alter  or 
change  any  water-course  upon  which  there  is  a mill,  without 
the  special  license  of  the  General  Sessions  of  the  Peace. 
And  so  far  as  my  researches  have  extended  (and  they  have 
been  prosecuted  from  time  to  time  over  a period  of  almost 
thirty  years,  in  various  suits),  I have  not  found  any  license 


Argument  of  Gen.  Butler. 


461 


from  the  General  Sessions  of  the  Peace,  to  alter  or  disturb 
Concord  river. 

The  fourth  section  provides  against  anybody’s  damaging 
the  works  of  the  company ; and  the  fifth  section  authorizes 
and  empowers  the  proprietors  "to  purchase  and  hold,  for 
them  or  their  successors  forever,  so  much  land  and  real  estate 
as  may  be  necessary  for  the  purposes  aforesaid,  not  exceed- 
ing the  value  of  five  thousand  pounds.”  This  is  simply  an 
authority  to  purchase  and  hold.  You  will  observe  that  it  is 
limited  carefully. 

Then  the  sixth  section  provides  for  tolls  to  reimburse 
them,  the  seventh  for  toll-gatherers,  and  the  eighth  section 
limits  the  time  within  which  the  canal  is  to  be  built. 

The  only  grant  of  power  is  for  them  to  take  lands  and  to 
hold  lands  necessary  for  their  purpose. 

The  company  commenced  operations,  and  found  it  neces- 
sary to  apply  again  to  the  Legislature,  which  they  did,  and 
obtained  an  act  of  incorporation,  February  28tli,  1795, 
Second  Special  Laws,  p.  26.  And  that  act  provides  : — 

" That  the  property  of  the  said  proprietors  in  the  said 
canal,  and  in  any  other  canal  connected  therewith,  which 
they  shall  effect,  pursuant  to  any  authority  of  the  govern- 
ment, and  all  real  estate,  of  which  the  said  corporation 
shall  be  seized,  shall  be  divided  into  eight  hundred  shares, 
and  that  each  share  therein  shall  give  the  person  holding  the 
same  one  vote  in  the  proceedings  of  the  said  corporation : 
provided,  that  no  one  proprietor  shall  have  a right  to  more 
than  twenty-five  votes  on  any  occasion  ; and  that  the  shares 
in  the  same  canal,  including  the  towing-paths  and  wharves 
thereon,  shall  be  so  far  considered  as  personal  estate,  that 
the  same  may  be  transferred  according  to  such  rules  and 
regulations  as  the  said  corporation  shall  establish ; and  that 
the  proprietors  shall  be  subjected  to  taxes  therefor,  in  the 
towns  and  parishes  where  they  shall  severally  reside,  as  for 
personal  estate.” 

Then,  for  the  purpose  of  making  deeds,  and  for  the  pur- 
poses of  taxation,  the  property  of  the  canal  was  to  be  per- 
sonal estate,  and  for  those  purposes  only;  and  all  the  prop- 
erty of  the  corporation  remained  — real  estate  divided 
among  the  eight  hundred  proprietors  as  real  estate,  and,  of 
course,  passed  as  other  real  estate  passed,  except  that  when 
they  chose  to  sell  it,  it  might  be  spld  under  such  rules  as  the 
corporation  established,  i.  e.,  under  their  by-laws. 

Then  the  second  section  provided  " that  the  said  corpora- 
tion shall  have  power  to  receive  and  hold  real  estate  as 
appendant  to  the  same  canal  ” — mark  the  words  " as  appen- 
dant to  the  same  canal  ” — and  for  the  purpose  of  facilitating 


462 


Argument  of  Gen.  Butler. 


the  business  of  the  same,  to  the  value  of  thirty  thousand 
pounds  over  and  above  the  value  of  the  canal  itself,  simply 
considered,  and  that  the  corporation  shall  be  liable  to  pay 
taxes  therefor  in  the  town  and  parish  where  the  same  may 
be ; and  such  taxes  may  be  assessed  on  the  corporation,  or 
on  its  tenants,  at  the  discretion  of  the  town  where  the  tax 
shall  be  made.” 

" And  whereas  the  said  corporation  has  petitioned  the 
Legislature  for  an  extension  of  their  powers  for  the  purpose 
of  making  other  canals,  to  be  connected  and  to  communicate 
with  the  said  Middlesex  Canal ; the  object  of  which  petition 
being  to  render  the  waters  of  Concord  river  boatable  as  far 
up  as  the  same  may  be  usefully  improved  for  that  purpose, 
and  to  improve  the  banks  of  the  Medford  river,  so  as  to 
render  the  canal  more  easy  and  useful,  as  well  as  open  a 
canal  round  the  shallows  in  the  town  of  Dunstable,  on  the 
banks  of  Merrimack  river ; and  also  to  extend  said  canal  to 
the  waters  of  Charles  river,  or  the  town  of  Boston,  — 

" Be  it  further  enacted , That  the  said  proprietors  of  the 
Middlesex  Canal  shall  be  empowered  to  render  the  waters  of 
Concord  river  boatable  as  far  as  Sudbury  causeway,  and  as 
much  farther  as  the  same  can  be  usefully  improved  for  that 
end,  and  to  open  any  canal  at  any  place  in  the  said  County 
of  Middlesex  that  may  be  necessary  to  connect  the  said 
Concord  river  with  the  said  Middlesex  Canal  for  that  pur- 
pose, and  also  to  extend  said  canal  from  Medford  to  the 
waters  of  the  town  of  Boston , or  Charles  river , in  such  way 
as  to  said  proprietors  may  seem  most  advantageous,  and 
with  all  the  privileges,  and  under  the  same  restrictions  and 
regulations,  as  are  granted  and  provided  in  said  act ; and  that 
the  said  proprietors  shall  be  liable  to  have  damages  recovered 
against  them  by  any  individual  who  shall  be  injured  or  dam- 
nified in  his  property  in  such  new  canal,  by  the  same  mode 
of  process  and  in  the  same  manner  as  is  in  the  same  act 
provided;  and  that  for  the  use  of  any  such  new  canal  or 
boatable  waters,  the  said  proprietors  may  receive  the  same 
rate  of  toll  which  is  by  the  same  act  established  for  the  said 
Middlesex  Canal. 

"Whereas,  it  is  provided  in  an  act  entitled,  An  act  for  in- 
corporating James  Sullivan,  and  others,  by  the  name  and 
style  of  The  Proprietors  of  the  Middlesex  Canal , 'That 
no  part  of  the  waters  of  Shawsliine  river  shall  be  diverted 
from  their  natural  course  for  the  purpose  aforesaid it  is 
hereby  declared  to  be  the  true  intent  and  meaning  of  the 
foregoing  restrictive  clause,  that  the  ponds  and  those  streams 
which  continue  a visible  current  through  the  year,  and 
usually  empty  into  Shawsliine  river , are  to  be  considered  as 


Argument  of  Gen.  Butler. 


463 


part  of  the  waters  of  the  said  river,”  which  is  the  earliest 
legislative  definition  of  what  shall  be  considered  a stream, 
or  "water  of  a river  ; ” and  that  a pond  which,  without  dam- 
ming, is  not  a visible  stream  through  the  whole  of  the  year, 
is  not  considered  a part  of  the  waters  of  the  river.  It  may 
bear  upon  no  part  of  this  investigation,  but  it  is  a legislative 
declaration  of  what  should  be  considered. 

Then  another  act  was  passed  on  the  25th  of  June,  1798 
(Second  Massachusetts  Special  Laws,  vol.  2,  p.  241),  which 
recites  : — 

"Whereas,  by  an  act  ^passed  on  the  twenty-eighth  day  of 
February,  in  the  year  of  our  Lord  one  thousand  seven  hun- 
dred and  ninety-five,  it  is  provided  and  enacted,  that  the  cor- 
poration of  the  Middlesex  Canal  shall  have  power  to  receive 
and  hold  real  estate  as  appendant  to  the  same  canal,  and  for 
the  purpose  of  facilitating  the  business  of  the  same,  to  the 
value  of  thirty  thousand  pounds,  over  and  above  the  value  of 
the  canal  itself ; and  the  proprietors  of  said  canal  having 
expressed  their  doubts  whether,  in  virtue  of  said  act,  they 
may  erect  and  hold  mills  on  the  same  canal,  and  on  the 
waters  with  which  it  is  or  shall  be  connected,  — 

" Be  it  therefore  enacted  by  the  Senate  and  House  of  Rep- 
resentatives, in  General  Court  assembled , and  by  the  authority 
of  the  same , — 

" That  the  corporation  of  the  Middlesex  Canal,  or  the  pro- 
prietors of  the  said  canal,  in  their  corporate  capacity,  shall 
have  power  to  purchase  and  hold  any  mill-seats  on  the  waters 
connected  with  the  same  canal,  and  lands  to  accommodate 
the  same,  and  thereon  to  erect  mills  ; and  that  all  such  land 
or  mill-seats  so  held  by  the  said  corporations,  shall  be  liable 
to  be  taxed  as  real  estate  in  the  towns  where  the  same  shall 
be,  according  to  the  laws  in  being  for  assessing  taxes  ; Pro- 
vided, nevertheless,  that  nothing  herein  shall  be  construed 
to  repeal  or  annul  the  restrictions  under  which  the  said  pro- 
prietors and  corporation  are  laid  by  former  acts,  respecting 
the  waters  of  Shawshine  river,  or  the  ponds,  brooks  or 
streams  emptying  their  waters  into  the  same ; and  pro- 
vided, also,  that  all  the  mill-seats  and  land  purchased  or 
received  by  the  said  corporation  shall  not  exceed  the  sum  of 
one  hundred  and  thirty  thousand  dollars.” 

Now,  your  Honors  will  observe  that  these  mill-seats  were 
to  be  " appendant  ” to  the  canal. 

There  is  no  other  legislation  which  I think  it  of  any  special 
importance  to  bring  your  Honors’  attention  to,  until  in  1860 
(as  has  already  been  put  in  evidence)  the  Legislature  passed 
an  act  (chap.  203  of  the  11th  Special  Laws)  : — 


464 


Argument  of  Gen.  Butler. 


"An  Act  in  relation  to  the  Proprietors  of  the 

Middlesex  Canal. 

"Whereas,  the  Supreme  Judicial  Court  of  this  Common- 
wealth, on  the  third  day  of  October  last,  upon  an  informa- 
tion filed  by  the  Attorney  General,  pursuant  to  a resolve  of 
the  last  Legislature,  by  a judgment  and  decree,  declared  that 
the  Proprietors  of  the  Middlesex  Canal,  or  any  persons  pre- 
tending to  hold  the  privileges,  franchises,  and  liberties  of 
the  said  corporation,  do  not,  in  any  manner,  have,  hold,  use, 
exercise,  or  enjoy  the  said  privileges,  franchises,  and  liber- 
ties, under  and  by  virtue  of  any  authority  conferred  by  any 
act  of  the  General  Court  of  this  Commonwealth,  and  that 
said  Proprietors  of  the  Middlesex  Canal  be  absolutely  fore- 
judged and  excluded  from  having,  holding,  using,  exercis- 
ing, or  enjoying  such  franchises,  privileges,  and  liberties : 
Now,  therefore, 

" Be  it  enacted  by  the  Senate  and  House  of  Representatives, 
in  General  Court  assembled , and  by  the  authority  of  the  same , 
as  follows : — 

"All  the  privileges,  liberties,  and  franchises,  granted  or 
given  by  the  twenty-first  chapter  of  the  Acts  of  the  Legisla- 
ture of  the  year  one  thousand  seven  hundred  and  ninety- 
three,  incorporating  said  proprietors,  or  by  any  subsequent 
acts  in  addition  thereto,  are  hereby  declared  seized  unto  the 
hands  of  the  Commonwealth,  forfeited  and  annulled  in  con- 
sequence of  the  non-feasance  and  mis-feasance  of  said  cor- 
poration, and  the  neglect  of  their  corporate  duties,  in  accord- 
ance with  such  judgment  and  decree.” 

Now,  the  next  thing  to  which  I have  to  call  your  Honors’ 
attention  is,  that  it  is  in  evidence  that  in  1851  they  sold  to 
the  gentlemen  Talbot,  by  deed  which  is  before  your  Honors, 
a portion  of  this  water-power  on  the  west  side  of  the  river. 
They  had  previously  sold  a portion  of  the  water-power  on 
the  east  side  of  the  river  to  Mears  and  others,  which  by  cer- 
tain mesne  conveyances  came  into  the  hands  of  the  Faulk- 
ners. Then  the  gentlemen  Faulkner  and  Talbot  undertook, 
by  interchanging  deeds,  to  divide  the  water-power  among 
them;  and,  in  the  first  place,  the  deed  to  the  gentlemen 
Talbot  is  a quitclaim  deed  from  the  Middlesex  Canal,  and 
expressly  contains  a clause  that  they  do  not  sell  any  water  or 
any  right  there  whatever  in  those  lands  that  may  be  neces- 
sary for  the  canal  to  use.  They  reserve  those.  Now,  what 
was  the  effect  of  that  reservation,  and  how  have  the  courts 
construed  that  in  the  case  of  Heard  against  Talbot,  7th  of 
Gray’s  Reports,  p.  113,  which  I have  already  cited  to  you 
for  another  purpose  ? 


Argument  of  Gen.  Butler. 


465 


It  is  agreed  that  — 

" At  the  time  of  the  abandonment  of  the  use  of  their  canal, 
and  as  a part  of  the  winding-up  of  their  affairs,  the  proprie- 
tors sold  all  their  land  and  the  residue  of  the  water-power 
by  them  unsold,  raised  by  their  dam  aforesaid,  to  the  respon- 
dents by  deed  of  quitclaim,  ' subject  expressly  to  the  reser- 
vation of  all  easements  and  services  necessary  for  or  incident 
to  the  preservation  and  use  of  said  canal  for  the  purpose  of 
navigation,  and  of  all  the  rights  of  the  public  therein,  until 
the  same  shall  be  lawfully  discontinued ; ’ and  the  respondents 
have  since  that  sale  maintained  and  kept  up  the  water  by  said 
dam  for  manufacturing  purposes,  and  claim  to  use  the  same 
in  such  manner  and  to  such  extent  as  may  suit  their  conven- 
ience for  such  manufacturing  purposes,  subject  to  said  reserved 
right  of  said  canal.” 

Now,  then,  the  question  before  the  Court  was  : What  is 
the  effect  of  that  sale  ? Because  the  gentlemen,  Talbot  et  al. , 
were  keeping  up  their  dam  to  the  injury,  as  was  alleged,  of 
the  meadow-owners  above ; and  the  meadow-owners  above 
came  in  and  said,  "Now  the  canal  is  wholly  disused  and 
stopped  up  and  is  not  running,  and  the  corporation  is  wind- 
ing up  its  affairs,  and  therefore  we  ought  not  to  have  our 
lands  flowed  any  more  without  damages.  While  it  flowed  as 
a canal  we  received  our  pay  for  it,  — in  contemplation  of  law, 
if  not  in  contemplation  of  fact,  — pay  for  that  damage.  But 
now  we  ask  for  a jury  to  assess  our  right  under  the  mill  act, 
— if  this  dam  can  be  kept  up  at  all.”  And  the  case  was 
argued  at  that  time  by  myself  upon  the  one  side,  and  by 
brother  Abbott  upon  the  other,  and  Mr.  Justice  Bigelow  then 
gave  the  opinion  of  the  Court,  and  it  is  valuable  to  see 
exactly  what  he  says  the  rights  of  the  Middlesex  proprietors 
are  : — 

" There  can  be  no  doubt  that  the  proprietors  of  the 
Middlesex  Canal,  under  their  original  act  of  incorporation, 
St.  1793,  c.  21,  and  undeNthe  additional  act  of  1798,  c.  16, 
by  which  they  were  empowered  to  purchase  and  hold  mill- 
seats  on  the  waters  connected  with  their  canal,  acquired,  as 
part  of  their  franchise,  the  right  to  flow  the  land  of  the  com- 
plainant, and  that  this  right  was  in  its  nature  a permanent 
easement  or  servitude,  for  which  the  complainant  or  those 
under  whom  he  claims  title  had  an  ample  remedy  in  damages 
provided  in  the  third  section  of  the  original  charter  of  the 
corporation.” 

Now,  then,  that  was  a right  to  flow  — the  right  to  the  water, 
and  to  keep  up  the  head  of  the  water  was  a part  of  the  fran- 
chise of  the  Middlesex  Canal  Company.  But  all  those 
privileges,  liberties  and  franchises  held  by  the  Middlesex 


466 


Argument  of  Gen.  Butler. 


Canal,  or  by  any  other  person,  were  in  1860  seized  to  and 
taken  possession  of  by  the  act  of  the  legislature  to  the 
Commonwealth,  — (seizing  is  a peculiar  word  like  franchise  ; 
it  looks  to  the  interest  in  the  realty)  — " seized  to  the  Com- 
monwealth.” 

Now,  then,  passing  on,  Justice  Bigelow  says:  "The  sole 
ground  on  which  he  now  rests  his  case  is  that  the  Canal 
Corporation  have,  since  the  year  1851,  wholly  disused  their 
canal,  filled  up  portions  of  it,  and  suffered  it  to  remain  in 
such  condition  as  to  be  entirely  unfit  for  use.  The  argument 
is,  that  the  right  of  erecting  and  maintaining  a dam  was 
granted  to  the  corporation  mainly  for  the  purpose  of  enabling 
them  to  raise  water  for  the  supply  of  their  canal,  and  the 
power  to  hold  mills  was  wholly  incidental  to  and  dependent 
on  the  appropriation  and  use  of  the  water  raised  by  the  dam, 
for  the  great  object  for  which  the  corporation  was  established 
and  their  franchise  granted ; that  the  corporation,  having 
abandoned  the  use  of  the  canal,  and  ceased  to  supply  it  with 
water,  can  no  longer  claim  the  right,  under  their  charter,  to 
maintain  the  dam. 

" Admitting,  for  the  sake  of  giving  full  force  to  this  argu- 
ment, the  correctness  of  the  premises  on  which  it  rests,  we 
do  not  think  the  conclusion  drawn  from  them  legitimately 
follows.” 

And  why?  Because,  he  says,  we  cannot  attack  the  canal, 
it  not  having  been  legally  discontinued  by  force  of  any  law ; 
and  there  having  been  this  reservation,  it  is  to  be  presumed 
that  we  cannot  attack  the  corporation  for  non-user  or  mis- 
user, because  that  is  a matter  for  the  legislature  to  do. 

Commissioner  Russell.  There  is  an  earlier  case  in 
Metcalf,  is  there  not  ? 

Mr.  Butler.  Yes,  sir ; there  are  three  or  four.  Those 
are  all  attempts  under  the  mill  act  while  the  Middlesex  Canal 
was  running,  and  they  all  held,  in  the  language  of  the  court, 
" that  the  remedy  ” in  the  third  section  " was  an  exclusive  one, 
and  the  time  within  which  parties  could  legally  avail  them- 
selves of  it  has  long  since  passed  away.” 

But  now  this  came  up  after  the  canal  business  had  been 
discontinued.  But  the  court  said  that  the  canal  not  having 
been  ended  by  legislative  act,  or  by  forfeiture  under  judicial 
proceedings,  the  non-user  could  not  be  set  up  by  us. 

" It  follows  from  these  principles  that  the  franchise  of  the 
proprietors  of  the  Middlesex  Canal,  which  includes  the  right 
of  keeping  up  and  maintaining  the  dam  which  flows  the  land 
of  the  complainant,  being  still  in  existence,  it  is  not  compe- 
tent for  him  in  this  proceeding  to  show  a non-user  or  aban- 
donment of  the  canal,  as  a ground  for  denying  the  right  of 


Argument  of  Gen.  Butler. 


467 


the  corporation  to  continue  the  dam ; and  as  the  respondents 
hold  their  title  under  the  corporation,  and  justify  the  flowing 
of  the  complainant’s  land  under  the  corporate  franchise, 
there  is  no  ground  for  sustaining  the  present  complaint  un- 
der the  mill  act  against  the  respondents.  It  is  a sufficient 
answer  to  this  suit,  that  the  corporation  have  the  legal  right 
to  maintain  the  dam  as  against  the  complainant,  without  pay- 
ment of  damages. 

This  view  of  the  case  renders  it  unnecessary  to  determine 
the  question  discussed  at  the  bar,  whether  the  right  to  pur- 
chase and  hold  mills,  which  was  conferred  on  the  corporation 
by  the  act  of  1798,  was  the  grant  of  an  additional  and  dis- 
tinct franchise  or  right,  which  may  be  used  and  enjoyed  by 
the  corporation  or  their  grantees  separately  from  and  inde- 
pendently of  the  building  and  maintaining  of  a canal ; or 
whether  it  was  merely  secondary  and  subordinate  to  the 
making  of  a canal  and  the  raising  of  water  for  its  supply, 
and  was  to  cease  and  become  extinguished  when  the  right  of 
keeping  and  using  the  canal  should  be  surrendered  or  for- 
feited. Now,  have  we  occasion  to  decide  whether  the  for- 
feiture or  extinguishment  of  the  charter  of  the  corporation 
would  operate  to  defeat  the  title  of  the  grantees  of  the  cor- 
poration to  the  mills  and  water-power,  which  had  been  ac- 
quired by  the  corporation  lawfully,  and  conveyed  to  the 
respondents  by  deeds  valid  at  the  time  they  were  made,  by 
which  the  title  became  vested  before  such  extinguishment  or 
forfeiture  took  place  ? The  seare  important  and  interesting 
questions ; but  it  will  be  quite  time  enough  to  settle  them 
when  the  exigency  of  a case  shall  require,  in  order  to  adju- 
dicate upon  the  rights  of  parties,  that  they  should  be  judi- 
cially determined,  — complainant  nonsuit,  — which  exigency 
has  now  arisen,  if  it  ever  did  or  can  arise. 

Mr.  Abbott.  They  did  settle  it  at  the  time,  and  gave  an 
opinion,  of  which  I have  an  abstract,  taken  down  from  the 
Chief  Justice’s  opinion. 

Mr.  Butler.  Did  they  settle  anything  different  from 
that? 

Mr.  Abbott.  They  settled  something  in  addition  to  it. 

Mr.  Butler.  All  that  may  be  so  ; and  then  it  was  evi- 
dent that,  after  consideration,  he  came  to  the  conclusion  that 
he  did  not  want  anything  different  from  what  he  had  put  in 
the  book.  He  talked  outside  of  the  record,  and  found  that 
he  had  talked  wrong,  and  he  took  it  back  again. 

There  has  been  a struggle  going  on  here  for  seventy-five 
years,  between  the  people  on  the  Concord  river  and  the 
people  owning  or  claiming  to  own  the  water  at  Billerica,  to 
try  and  get  some  pay,  and  some  rights ; and  our  courts, 


468 


Argument  of  Gen.  Butler. 


which  in  the  earlier  days  had  a very  strong  leaning  towards 
corporations,  so  much  so  that  it  used  to  be  a part  of  the  plat- 
form of  one  political  party  (which  everybody  was  bound  to 
believe  or  suffer  ostracism) , that  the  corporations  owned  the 
courts.  That  was  many  years  after  I came  on  to  the  stage. 

And,  as  a matter  of  history,  perhaps,  rather  than  as  a mat- 
ter necessary  here,  it  may  not  be  improper  to  suggest  that 
this  original  act  of  incorporation  gave  only  one  year  in  which 
a man  could  petition ; and  a great  many  men  ( I will  not  say 
all  for  a reason  which  will  be  obvious)  did  not  find  out  that 
they  were  hurt  during  that  year ; because  the  canal,  as  the 
mill-owners  allege,  were  sharp.  They  did  not  shut  up  their 
dam  and  raise  the  water  until  September.  Through  the 
winter  nobody  knew  or  cared  where  the  water  was ; and 
through  the  spring  nobody  cared.  It  flowed  the  meadows  in 
haying  time,  and  then  they  were  obliged  to  apply  to  the 
Court  of  General  Sessions  of  the  Peace,  when  in  session ; 
and  that  court  did  not  sit  until  a few  days  after  the  year 
expired,  from  the  time  when  they  closed  up  their  dam, 
so  that  a great  many  of  the  mill-owners  were  short  of  any 
redress.  And  the  courts  have  held  always  from  that  time, 
with  a vigor  that  is  praiseworthy,  if  it  is  in  the  right  direc- 
tion, that  it  must  be  taken  to  be  settled,  that  they  were  all 
paid  for  their  damages ; and  any  attempt  of  any  of  the 
meadow-owners  thus  flooded  out,  or  injured  by  deprivation  of 
water,  by  the  Middlesex  Canal,  has  ever  since  wholly  failed 
before  the  courts. 

Now,  then,  in  this  . stage  we  have  come  to  a case  — the 
Middlesex  Canal,  all  its  franchises  and  privileges,  one  of 
which  franchises  the  Supreme  Court  decide  to  be  the  right 
to  keep  up  the  water  by  a dam.  And  one  would  think  that 
that  was  clearly  a decision,  "have  now  been  seized  to  the 
Commonwealth  against  all  persons  whatsoever.”  And  the 
case  in  Gray,  which  I have  just  read,  says  that  the  gentle- 
men Talbot,  the  petitioners  here,  were  holding  in  the  right 
they  did  hold  under  the  franchise  of  the  Middlesex  Canal. 
That  franchise  is  dead  and  gone  at  any  rate,  and  that  fran- 
chise is  seized  to  the  Commonwealth. 

Now,  what  should  happen?  I have  no  doubt  the  Com- 
monwealth has  a right  to  keep  up  that  dam  as  against  the 
proprietors  of  the  meadows.  But  nobody  else  has  any  right 
to  keep  it  up.  It  was  higher  than  it  was  before  the  Middle- 
sex Canal  took  it. 

Now,  then,  it  is  agreed  that  the  testimony  put  in  this 
morning  shows  that  the  old  grist-mill  dam,  which  they 
bought,  was  a very  poor,  miserable,  leaky  concern,  did  not 
keep  back  any  water  — and  there  was  not  any  occasion  to 


Testimony  of  Jonathan  Manning. 


469 


keep  back  any  water,  for  all  it  had  to  do  was  to  saw  the  logs 
in  the  spring  and  to  grind  the  grain  of  the  inhabitants  of 
Billerica;  and,  if  there  was  anything  like  the  amount  of 
water  running  in  the  stream,  in  the  natural  flow,  which  is 
claimed  for  it  now,  it  was  ample  for  that  without  much  of 
any  dam  at  all.  So  that  they  stand  upon  this  horn  of  the 
dilemma  — either  that  there  was  a great  deal  less  water  ran  in 
the  natural  flow  of  the  river  before  it  was  aided  by  reser- 
voirs and  dams,  in  the  olden  time,  so  that  it  was  necessary 
to  keep  up  a very  high  dam  in  order  to  do  a very  little  busi- 
ness in  the  grist-mill,  or  else,  the  same  water  running,  there 
was  no  dam  required  at  all  of  any  consequence.  The  testi- 
mony of  Mr.  Manning  gives  us  a little  description  of  that 
dam.  He  says  : — 

TESTIMONY  OF  WITNESSES  TAKEN  BEFORE  A LEG- 
ISLATIVE COMMITTEE  CONTAINED  IN  HOUSE 
DOCUMENT  100,  IN  THE  YEAR  1860. 

Jonathan  Manning,  being  duly  sworn,  deposed , upon  examination 
by  Mr.  Child,  as  follows:  — 

I reside  in  Littleton,  and  have  resided  there  for  fifty-seven  years. 
My  age  is  eighty-four  years. 

I worked  for  the  proprietors  of  the  Middlesex  Canal  six  summers 
and  two  winters,  beginning  in  May,  1796,  and  ending  in  Novem- 
ber, 1801.  I helped  build  the  locks  on  the  Merrimack  river,  the 
bridges,  sluices,  and  so  forth.  I worked  at  carpenter-work,  almost 
wholly.  In  1796  and  1797,  I did  not  work  on  the  dam.  In  1798 
I helped  build  the  dam.  There  was  a dam  previously  there,  — 
what  some  called  a zig-zag  dam,  — leaky,  and  not  very  high.  I 
never  knew  the  height  of  either  dam,  — to  my  knowledge.  The 
dam  I helped  build  was  higher  than  the  former  one.  They  made 
rafts  to  bring  timber  from  the  Merrimack,  and  there  was  not  water 
enough,  by  the  old  dam,  to  fill  the  canal.  After  the  new  dam  was 
built,  we  took  down  wider  rafts,  — the  canal  being  wider  at  top 
than  bottom.  The  planks  used  were,  I think,  two  and  three-quar- 
ter inches  in  thickness.  I never  saw  the  old  dam  till  I went  to 
work,  after  the  canal  was  fixed  in.  When  there  was  a flush  of 
water,  the  guard-gates  were  opened  to  fill  it.  No  flash-boards  were 
ever  put  on  the  old  dam,  to  my  knowledge.  I have  heard,  from 
Mr.  Baldwin,  the  Superintendent  — 

Mr.  Butler  objected. 

Mr.  Child  argued  for  the  admission  of  the  testimony. 

Witness  said,  in  the  course  of  the  conversation,  that  he  did  not 
know  that  any  advantage  was  taken  of  the  spring  freshets.  Timber 
could  then  be  better  floated. 

Objection  having  been  taken  to  further  testimony  offered,  Mr. 
Mellen  argued  that,  before  a Legislative  Committee,  the  strict 
rules  of  evidence  were  not  necessarily  to  be  enforced,  except  at  the 
discretion  of  the  committee. 


470 


Argument  of  Gen.  Butler. 


Mr.  Butler  insisted  that,  as  the  rights  of  the  mill-owners  were 
legal  rights,  the}’  should  be  affected  only  by  legal  testimony.  The 
committee  would  judge  of  the  relevancy  of  testimony,  but  would  not 
hear  what  could  not  be  evidence. 

The  Chairman  ruled  that  hearsay  testimony  was  inadmissible. 

Witness.  I recollect  that  a boat  passed  up  that  part  of  the 
canal  between  Concord  and  Merrimack  rivers,  with  a party  from 
Boston,  or  Medford,  or  somewhere. 

Q.  Who  composed  the  party  ? 

A.  I know  but  two  or  three  men.  There  was  one  from  Boston, 
Judge  Sullivan,  the  president  of  the  canal,  and  old  Col.  Baldwin 
and  one  of  his  sons.  I do  not  remember  many  others,  nor  how 
many  there  were,  but  I should  think  twenty,  twenty-five,  or 
thirty. 

[ Witness  proceeded  to  speak  of  information  received , at  the  time , 
by  hearsay , in  reference  to  the  raising  of  the  water  in  the  canals  to 
float  the  boat.  Objection  was  made , and  the  testimony  rejected  as 
incompetent.  ] 

I do  not  know  how  much  higher  the  new  dam  was  than  the  old  ; 
but,  — from  their  raising  the  water  in  the  canal  so  much  higher  than 
before,  — I should  think,  nine  to  twelve  inches  high.  After  taking 
the  water  down  six  inches,  I remember,  in  the  first  of  June,  or  the 
last  of  May,  seeing  the  gates  open.  I should  think  the  effect  on 
the  depth  of  the  water,  of  the  completion  of  the  new  dam  would  be 
that  they  could  raise  it  nine  inches  or  a foot.  So  I have  thought 
sometimes,  by  the  flowing  of  the  water  after  they  got  the  dam 
built,  — it  flowing  up  higher  into  a yard  where  we  worked,  and 
sending  us  back  into  higher  land.  I thought  the  water  was  much 
higher,  but  I couldn’t  say.  I cannot  tell  how  much  water  there 
was  in  the  canal  before  we  built  the  new  dam  ; I should  say  there 
was  something  like  two  and  a half  feet  of  water  when  the  boat 
came  up.  I cannot  tell  what  depth  of  water  the  canal  required,  in 
order  to  be  full ; but  I think,  three  and  a half  feet.  That  is  my 
impression  ; I am  not  positive,  — I think  it  is  correct. 

The  dam  I helped  build  had  a bridge  over  the  stream,  the  dam 
below  being  built  so  that  the  water  should  go  over  it.  There  was 
a little  island,  and  a saw-mill  stood  on  that.  The  main  dam 
crossed  the  river ; and  where  the  water  ran  over  was  what  is  called 
a figure-dam.  We  had  a gauge  to  make  it  by ; and  it  was  put  up 
— I don’t  know  how  far  apart  — I should  say,  eight  feet  across  the 
piers,  and  then  stringers  locked  right  on  at  the  side ; and  then  it 
was  planked,  slanting  up  the  stream.  This  was  a figure-four. 
There  was  a cap-sill  put  on  to  this  dam. 

The  figure  was  like  this : — 


Testimony  of  David  Heard. 


471 


After  the  dam  was  built,  timber,  principally,  was  brought  down. 
The  timber  and  rafts  were  larger  than  before.  The  small  was  tim- 
ber for  locks : the  large,  sawed  for  planking.  I think  they  were 
much  larger.  I think  I saw  one  log  from  which  seven  planks  were 
sawed,  with  two  slabs. 

I saw  that  dam  in  1832  or  ’33,  or  about  then.  There  was  a 
stone  dam  built  below  it,  which  covered  it  up.  I then  saw  the 
posts  of  the  waste-gate,  but  they  were  under  water  — the  tops  a 
little  under.  The}T  had  been  built  all  of  a foot  higher  than  the  dam. 
There  was  a sluiceway  for  fish  to  go  up,  planked  the  other  way. 
That  was  lower  than  the  dam.  It  was  kept  open  every  spring. 
Don’t  know  when  it  was  stopped. 

Mr.  Butler.  That  was  all  matter  of  legislation. 

Flash-boards  were  put  on  the  dam  I built,  before  I left ; — I don’t 
know  when,  or  by  whom.  Saw  them  there  the  two  last  years. 
They  said  they  were  ten  inches  high.  I have  no  judgment  about 
their  height.  I did  not  work  there  much,  the  last  two  years. 

That  section  of  the  canal  between  the  rivers  was  finished  in  the 
fall  of  1797,  when  Sullivan’s  boat  came  up. 

Previous  to  the  building  of  the  dam  of  1798,  there  was  a pond 
there*,  and  a mill.  It  was  called  a pond.  It  was  there  when  I was 
a boy,  and  went  to  mill  there.  The  old  dam  flowed  not  nearly  so 
high  as  that  I helped  build  ; — I cannot  say  how  much  lower. 

I frequently  conversed  with  men  at  work  at  Mr.  Rogers’.  Never 
saw  the  ledge,  that  I know  of. 

The  flash-board  was  put  on  to  the  dam  by  little  posts  put  up,  and 
a brace.  They  didn’t  appear  to  be  fastened.  There  was  no  cap- 
sill  but  that  on  which  the  planking  was  nailed.  •What  of  the  dam 
was  below  the  bridge  was  such  as  to  have  the  water  go  over. 

Now  David  Heard  testified  about  this  time  as  follows  : — 

David  Heard  recalled.  Examined  by  Mr.  Mellen. 

I have,  at  times  mowed  grass  in  the  stream.  I was  one  of  the 
Directors  of  the  Sudbury  Meadow-Owners’  Corporation,  formed  in 
1816.  There  was  a clearing  of  the  meadows  — some  years  after 
— mostly.  There  had  been  a law-suit,,  and  something  said  about 
the  weeds  ; and  we  thought  we  would  tr}r  it.  We  had  two  instru- 
ments. We  used  to  work,  and  clear  it.  I have  worked  upon  all 
the  bars,  I guess,  from  the  Concord  line,  as  far  as  any  were 
worked  upon.  The  principal  bars  are  all  hard  gravel-pans,  in  the 
bed  of  the  river.  There  were  not  large  deposits  upon  them,  — just 
enough  to  start  out  a weed,  which  would  grow  according  to  the 
depth  of  the  water.  We  used  to  rake  them  out.  A shovel  instru- 
ment was  used,  to  take  out  the  weeds  in  deep  water,  above  the  bars. 
That  was  kept  up  for  a number  of  years.  After  1828,  there  was 
quite  a change  in  the  stream,  and  the  labor  expended  after  that, 
seemed  to  be  lost.  It  was  continued  up  to  1828  ; and  after  that 
there  was  a change  in  the  river ; the  water  in  the  river  stood 
higher.  The  low-water  marks  stood  higher,  and  continued  so. 
Where  we  used  to  drive  our  teams,  it  was  impossible  to  go  with 


472 


Argument  of  Gen.  Butler. 


them ; and  we  used  to  take  boats,  after  that,  with  two  or  three 
men  in,  alongside,  fasten  to  a long  pole,  or  something  of  that  kind, 
and  mow  the  weeds  and  let  them  float.  A considerable  sum  of 
mone}T  was  expended  by  the  corporation.  After  1833,  suits  were 
brought  against  the  Mill  Corporations ; and  the  taxes  after  that 
were  principally  for  defining  the  expenses  of  those  suits.  I think 
I looked  over  the  books,  once,  to  see  what  amount  was  probably 
laid  out.  There  was  quite  an  amount  — I think,  over  a thousand 
dollars,  for  clearing  the  river,  from  the  commencement,  — after 
1816, — to  1828.  It  was  continued  afterwards.  The  water  took 
a higher  stand  at  low-water  — which  was  the  grade  of  water  we 
chose  to  operate  upon  the  river.  And  after  that,  we  did  not  under- 
take to  go  on  with  teams.  What  was  done  was  done  b}r  plunging 
into  the  higher  part  of  the  bars,  or  hiring  men  to  go,  or  taking 
boats  and  working  as  I have  described. 

There  were  extreme  points  of  low-water  mark,  lower  than  it  is 
now.  I think  I have  seen  it  two  feet  lower  than  it  has  been  this 
season.  There  was  a time,  previous  to  1828,  when  the  water  would 
go  down  to  a certain  low  point,  and  then  the  water  would  come  in 
above,  and  raise  it  up.  I have  seen  the  operation  of  the  river  at 
Farm  bridge,  where  the  water  was  shut  up  above  us  ; the  water 
would  fall,  from  Saturday  to  Monday  morning,  an  inch  or  two.  By 
Tuesday  night  it  would  come  back — sometimes  not,  but,  as  a 
general  thing,  it  was  as  high.  That  we  called  a low  state  of  water. 
That  same  operation  came  upon  this  water,  after  a higher  grade 
was  produced,  at  a low  state,  and  when  there  had  been  a series  of 
dry  times.  I think  the  difference  was  in  the  neighborhood  of  two 
feet  higher  than  previous  to — say — from  1816,  when  my  attention 
was  very  particularly  called  to  the  river. 

Upon  my  meadows,  it  is  two  feet  higher  than  before,  at  low-water 
mark.  It  has  submerged  m}T  meadows,  with  one  or  two  excep- 
tions. I have  not  considered  the  hay  worth  cutting.  I would  give 
it  to  an}Tbod3r,  if  they  wanted  to  go  for  it  as  a general  thing.  I 
cannot  say  but  there  have  been  some  exceptions.  The  water,  now, 
in  cases  of  flood,  compares,  in  passing  off,  with  former  years,  thus  : 
the  water  goes  down  to  a certain  grade  — not  quite  as  fast  as  it 
used  to,  but  it  goes  down  to  a certain  grade,  — and  becomes 
stationary ; whereas  it  used  to  go  off,  to  below  — well,  it  wTould 
vary  as  the  season  was,  and  as  the  cause  producing  the  water  upon 
the  meadows  — I have  known  it  to  go  down  three  inches  in  eight- 
and-forty  hours — but  as  a general  thing,  you  could  calculate  that 
when  water  was  on  the  meadows  three  inches,  it  would  go  down 
two  inches  in  a day. 


Now,  I suppose  my  brothers  cannot  even  understand  that 
the  present  height  of  the  dam  is  anywhere  near  the  height  of 
the  dam  which  was  bought  from  Mr.  Osgood, — the  original 
dam.  So  that  we  need  not  trouble  ourselves  very  much  upon 
the  question  which  might  be  mooted,  whether  the  purchase 
of  the  mill  of  Mr.  Osgood,  being  appendant  to  the  real  es- 
tate owned  by  the  canal,  " and  for  the  purpose  of  facilitating 


Argument  of  Gen.  Butler. 


473 


the  business  thereof  ” (that  is  the  act) , whether  the  corpora- 
tion might  sell  that  or  not,  — because  all  there  is  substantially 
of  the  water-power  of  the  river  was  raised  and  is  made  by 
building  the  two  dams  of  the  Middlesex  Canal.  The  first 
one,  of  1798,  was  higher,  and  the  next  one,  of  1826,  was 
higher  still.  Now,  then,  it  is  an  agreed  fact  in  this  case, 
may  it  please  your  Honors,  that  in  the  summer  all  the  water 
was  needed,  used,  and  taken  for  the  canal,  and  generally 
more  was  wanted.  And,  in  the  other  case,  you  remember, 
Mr.  Tilden  was  called  here,  and  says  there  was  no  water  at  all 
running  down  at  Whipple’s,  when  the  canal  was  running,  in 
comparison  with  what  is  running  there  now.  You  will  re- 
member his  testimony.  Therefore,  if  we  are  right,  this  dam, 
and  the  right  to  maintain  the  dam,  in  the  language  of  the 
court,  in  the  seventh  of  Cushing,  is  one  of  the  franchises  of 
the  corporation,  has  been  maintained  under  that  and  no  other 
claim,  and  can  be  maintained  by  no  other  claim,  because  the 
moment  that  Mr.  Talbot  should  call  a jury  of  Middlesex 
County,  and  maintain  this  under  the  mill  act,  he  and  his  vast 
investments  there  would  be  swamped,  and  the  damages 
would  be  given  against  him.  It  would  not  be  worth  one 
straw,  if  the  proprietor  of  the  whole  meadows  up  to  Sudbury 
causeway  could  get  at  him  for  damages.  Therefore,  he  holds 
under  the  franchises  of  the  Middlesex  Canal.  Those  fran- 
chises are  seized  to  the  public  use.  They  were  necessary  to 
the  enjoyment  of  the  canal.  Without  them,  the  canal  is 
worthless,  — useless.  It  could  not  be  worked  for  an  hour  by 
anybody.  If  the  water-power  there  so  raised  was  not  seized 
by  the  Commonwealth,  the  Commonwealth  could  seize  noth- 
ing. The  water  is  just  as  necessary  for  the  use  of  a canal, 
as  the  road-bed  of  a railroad  is  necessary  for  the  use  of  the 
railroad.  And  my  proposition  is,  that  a corporation  made 
for  the  purpose  of  building  a canal  for  public  navigation,  can 
no  more  sell  the  waters  which  it  acquires  for  that  purpose 
and  under  that  power  than  can  a railroad  sell  its  road-bed 
and  the  franchise  to  use  it.  The  water  reverts  to  those  that 
own  it,  — if  it  has  not  been  seized  by  the  Commonwealth,  — 
subject  to  certain  rights,  which  I shall  speak  of.  It  was 
taken  for  a public  use  in  contemplation  of  law.  It  was  paid 
for  as  for  a public  use.  The  Commonwealth  have  now  seized 
it  to  itself,  in  order  to  open  that  canal,  as  it  may  do  any 
hour,  and,  in  my  judgment,  ought  to  do,  for  the  purpose  of 
supplying  cheap  transportation  of  heavy  merchandise  from 
Boston  to  Concord,  New  Hampshire.  Now,  would  anybody 
say  for  a moment,  may  it  please  your  Honors,  that  if  the 
Commonwealth  should  open  that  canal  to-morrow,  or  next 
week,  they  would  have  to  pay  Mr.  Talbot  damages  for  the 


474 


Argument  of  Gen.  Butler. 


use  of  the  water?  Well,  I take  it  that. nobody  will  be  bold 
enough  to  say  that.  If  the  Commonwealth  are  not  to  pay 
him  damages,  why  not?  It  is  because  it  has  been  taken  for 
a public  use,  and  dedicated  for  a public  use  forever,  and  the 
canal  has  no  power  under  its  charter  whatever  to  divert  it 
from  public  use  by  selling  it  to  private  use,  and  the  very  sale 
is  a misuse  of  its  charter,  by  which  it  might  have  been  for- 
feited. 

Then,  let  us  see  where  we  stand.  A part  of  that  water  is 
the  water  of  Sudbury  river.  It  was  decided  in  the  case  of 
Stearns  and  Lumbar d,  that  taking  the  water  of  a stream  on 
which  were  mills,  even  by  a private  aqueduct  corporation, 
to  supply  a portion  of  the  inhabitants  of  the  village  of  Spring- 
field,  was  a public  use.  The  Commonwealth  have  granted 
us  the  right  to  take  the  water  of  Sudbury  river  for  a public 
use.  We  are  to  pay  such  damages  as  other  persons  have 
sustained.  But  we  are  not  to  pay  any  damages  to  these 
petitioners,  because  that  water  belongs  to  the  public,  and 
not  to  them.  It  is  only  a change  of  public  use. 

This  matter  was  somewhat  discussed  in  the  case  of  Chase 
vs.  The  Sutton  Manufacturing  Company,  4th  of  Cushing : 
" Where  the  land  of  an  individual  is  taken  under  authority 
of  the  legislature  for  public  use,  and  full  compensation  is 
paid  to  the  proprietor  for  perpetual  easement  therein,  and 
the  same  land  is  afterwards  appropriated  by  the  same 
authority  to  public  use  of  another  kind,  the  owner  of  the 
land  is  not  entitled  to  any  further  compensation.” 

Now,  this  case  was  this : The  Blackstone  Canal  pur- 

chased a certain  mill-privilege  on  the  bank  of  the  Blackstone 
river,  and  they  flowed  the  land  of  the  complainant.  Then 
they  concluded  to  stop  their  canal  and  sell  out  to  the  Provi- 
dence and  Worcester  Railroad,  and  they  got  an  act  from  the 
legislature  to  permit  them  to  sell  their  property.  They  did 
not  sell  it  without  right.  It  never  occurred  to  the  good 
lawyers  who  were  advising  them,  that  they  had  any  right  to 
sell  without  obtaining  a special  act  from  the  legislature. 

"Paul  C.  Chase  vs.  The  Sutton  Manufacturing 

Company. 

" This  was  a complaint  against  the  respondents  for  flowing 
land,  which  came  to  this  Court,  by  appeal  from  the  Court  of 
Common  Pleas,  where  it  was  submitted  upon  an  agreed 
statement  of  facts. 

" The  complainant  is  the  owner  of  the  land  described  in  his 
complaint,  and  the  same  is  flowed,  as  therein  alleged,  by  the 
respondent’s  dam. 


Argument  of  Gen.  Butler. 


475 


"In  1822,  the  Legislature  of  this  Commonwealth  passed  an 
act  (St.  1822,  c.  27),  incorporating  the  Blackstone  Canal 
Company,  without  limitation  of  duration,  for  the  purpose  of 
constructing  a canal  from  W orcester  to  the  line  of  the  State 
of  Rhode  Island ; and,  in  the  same  year,  the  General  As- 
sembly of  Rhode  Island  passed  an  act  incorporating  the 
Blackstone  Canal  Company,  in  that  State,  for  the  purpose  of 
constructing  a canal  from  Providence,  to  connect  with  the 
canal  authorized  by  the  State  of  Massachusetts.  These  two 
canal  companies,  though  never  amalgamated,  were  associ- 
ated in  the  manner  mentioned  in  their  respective  charters, 
and  in  sundry  acts  subsequently  passed  in  addition  thereto  ; 
and  canals  were  constructed  accordingly,  which  were  con- 
nected together  by  the  boundary  of  the  two  States,  and  formed 
one  continuous  line  of  canal  from  Worcester  in  this  State  to 
Providence  in  Rhode  Island. 

" The  second  section  of  the  act  above  mentioned,  to  incor- 
porate the  Blackstone  Canal  Company,  in  this  State,  author- 
ized the  corporation  thereby  established  to  locate,  construct, 
and  fully  complete  a navigable  canal,  with  locks,  tow-paths, 
business  wharves,  dams,  embankments,  toll-houses  and  other 
necessary  appendages,  commencing  in  or  near  the  village  of 
Worcester,  and  from  thence  down  the  valley  of  the  Black- 
stone river,  in  a direction  towards  tide-water,”  etc. 

" The  fourth  section  authorized  the  corporation  to  purchase 
and  hold  real  estate,  not  exceeding  the  value  of  three  hun- 
dred thousand  dollars,  and  to  erect  mills  and  other  works 
on  the  waters  connected  with  the  canals,  feeders,  and  reser- 
voirs. 

" The  eighth  section  provided  that  when  the  canal  company 
should  have  located  their  canal,  or  any  part  thereof,  they 
should  report  the  same  to  the  Court  of  Sessions,  by  whom 
commissioners  should  thereupon  be  appointed  to  estimate  all 
damages  which  any  person  or  persons,  whose  lands  should 
be  described  and  mentioned  in  such  report,  might  sus- 
tain,” etc. 

" The  deed  provided  that  so  much  of  the  canal  as  should  not 
be  used  and  appropriated  in  the  construction  of  the  railroad 
or  for  railroad  purposes,  should  remain  the  property  of  the 
grantors,  except  so  far  as  might  revert  to  the  original  owners 
of  the  land  by  operation  of  law  ; the  reservoir  owned  by  the 
grantors  in  Massachusetts,  with  the  land  and  dams  belonging 
thereto,  the  waters  contained  therein,  the  dams  erected  or 
raised  on  the  Blackstone  river  by  the  grantors,  and  the 
waters  in  the  river  retained  by  such  dams,  are  expressly 
reserved  by  the  grantors  to  themselves  without  being  affected 
in  any  way  by  the  conveyance ; and  the  deed  further  pro- 


476 


Argument  of  Gen.  Butler. 


vided  that  the  rights  and  privileges  which  any  person  or 
persons  had  acquired,  or  then  possessed,  to  draw  or  conduct 
water  through  the  canal  in  Massachusetts,  for  mill  purposes, 
irrigation,  or  otherwise,  should  not  be  injured  or  affected  by 
the  conveyance ; but  that  such  rights  and  privileges  should 
be  and  remain  uninjured,  and  in  full  force. 

"B.  B.  Curtis,  for  the  petitioner, 

" P.  C.  Bacon  and  J.  M.  Barton, 

for  the  respondents . 

" Shaw,  C.  J” 

The  argument  of  Mr.  Curtis  for  the  petitioner  is  worth 
reading,  to  say  the  least. 

"If  the  transaction  were  a plain  and  simple  one,  which  the 
argument  seems  to  imply ; if  there  were  no  identity  or  com- 
munion of  right  and  interest  between  the  mill-owners  and 
the  Canal  Company ; if  the  company  had  been  authorized  to 
take  and  use  water,  and  erect  dams  and  water-works,  for  the 
purpose  only  of  constructing  a navigable  canal  and  keeping 
it  in  operation ; if  that  object  and  purpose  had  been  aban- 
doned, and  the  actual  use  of  the  water  had  been  discontinued 
by  the  company,  without  any  reservation  or  saving  of  rights, 
— there  would  have  been  much  plausibility  in  this  argument, 
although  the  result  would  be  to  give  the  plaintiff  a double 
compensation  for  one  and  the  same  loss. 

In  the  present  case  the  company  have  acquired  this  dam, 
and  adopted  it  for  the  purpose  both  of  making  a section  of 
the  canal,  and  also  of  establishing  it  as  a reservoir,  obtained 
with  it  the  right  to  the  mill-power  as  incidental,  which  they 
could  use  when  disposed  of  for  a certain  term  of  time  or  in 
perpetuity.  If  they  made  arrangements  with  the  proprietors, 
by  which  the  company  were  to  pay  the  damages  occasioned 
by  the  dam,  or  for  the  cost  of  the  dam  itself,  to  have  the  use 
of  the  pond,  for  a section  of  the  canal,  with  a tow-path  on 
its  margin,  and  also  for  a reservoir,  and  the  proprietors  to 
have  the  mill-power  and  mill  privilege,  these  respective 
rights,  mutually  conceded,  must  be  regarded  as  considera- 
tions for  each  other,  and  the  mill  privilege  to  be  held  in 
subordination  to  the  right  of  the  company,  and  no  longer 
upon  an  independent  title.  Otherwise,  the  dam  and  reser- 
voir could  not  be  ' established  ’ as  works  erected  and  main- 
tained in  pursuance  of  the  powers  vested  in  the  company  by 
the  act,  and  the  mill  owners  might  prostrate  the  dam  at  their 
pleasure.  This  is  wholly  inconsistent  with  the  facts  agreed 
to,  to  wit,  that  the  company  did  adopt  the  dam  as  theirs, 


Argument  of  Gen.  Butler. 


477 


paid  the  damages  occasioned  by  it,  and  established  the  pond 
raised  by  it  as  their  reservoir,  under  the  act. 

The  result  of  this  view  is,  that  the  company  had  the  right 
to  maintain  this  dam,  to  raise  a head  of  water  both  to  sup- 
ply the  navigable  canal  and  also  to  work  mills ; that  they 
adopted  this  dam,  then  recently  built,  established  the  pond 
as  a reservoir,  and  gave  notice  of  it  according  to  law,  so 
that  the  claim  for  damages  on  the  part  of  any  owner,  whose 
lands  were  flowed  by  it,  was  a claim  for  all  the  damage  occa- 
sioned by  the  use  of  the  company’s  franchise,  and,  of  course, 
embraced  all  damage  done  to  the  complainant’s  land  by 
flowing,  for  all  the  uses  of  the  water  to  which  the  company 
had  a right  to  apply  it,  including  as  well  the  mill-power  as 
the  supply  of  the  canal  with  water.  The  damages,  there- 
fore, now  sought  to  be  recovered,  have  been  paid  by  the 
canal  company,  under  whom  the  respondents  virtually  hold 
their  mill-power. 

This  appears  to  be  the  ground  upon  which  the  complain- 
ant acted  at  the  time.  If  the  canal  company  and  the  mill- 
owners  were  wholly  independent  of  each  other,  — if  the  com- 
plainant went  for  and  obtained  damage  from  the  canal 
company,  for  raising  and  using  the  water  for  supplying  the 
canal  only,  and  the  raising  of  it  for  mills  was  another  and 
different  use  not  compensated  for  by  those  damages,  — his 
claim  against  the  mill-owners  was  as  good  then  as  now.  But 
he  did  not  so  consider  it,  and  therefore  made  his  claim 
against  the  canal  company,  and  not  against  the  mill-owners. 
And,  in  our  opinion,  this  was  right.  In  theory  of  law,  his 
claim  was  for  damage  done  to  his  lands,  by  the  erection  of 
a dam  for  all  the  purposes  within  the  franchise  granted  to 
the  company,  which  was  to  raise  water  and  use  it  for  the 
supply  of  the  canal,  and  for  working  mills ; and  of  course 
such  were  the  damages  awarded  and  paid.  The  complainant 
having  thus  claimed  and  received  a full  compensation  for  a 
perpetual  easement  to  flow  his  lands,  for  the  purposes  of  a 
public  or  quasi  public  nature,  equity  corresponds  with  the 
law  in  declaring  him  not  entitled  to  a further  compensation. 

II.  But, it  is  further  argued,  and  perhaps  this  may  be  re- 
garded as  the  main  point  relied  upon,  that  the  mill  privil- 
eges were  merely  incidental  to  the  maintenance  of  the  canal 
for  navigation ; that  the  canal,  having  been  abandoned  by 
the  company,  and  navigation  therein  having  become  imprac- 
ticable by  the  filling  up  of  a portion  of  it,  the  mill  privileges 
and  all  derivative  and  dependent  rights  are  gone.  If  the 
fact  were  true,  it  might  be  quite  questionable  whether  the 
conclusions,  to  the  extent  stated,  would  follow.  If,  before 
such  an  abandonment,  the  company  had  acquired  a mill 


478 


Argument  of  Gen.  Butler. 


privilege,  as  they  lawfully  might,  and  had  alienated  it  by  a 
valid  conveyance  to  another,  whose  right  would  therefore 
become  vested,  it  may  be  doubted  whether  even  a forfeiture 
of  its  franchises  by  the  company,  by  a judgment,  would  de- 
feat the  right  of  an  alienee  taking  under  such  title,  valid  at 
the.  time  it  was  made. 

But  passing  over  this  consideration,  with  the  above  remark 
only,  we  are  to  consider  the  nature  of  this  alleged  abandon- 
ment, and  its  legal  effect.  It  is  true,  that  the  use  of  the 
canal,  as  a navigable  canal,  has  been  discontinued  so  far  as 
the  same  was  in  Massachusetts,  and  the  company  have  sold 
to  the  railroad  corporation  the  bed  of  their  canal ; but  this 
was  done  under  the  express  enactment  of  the  Legislature, 
authorizing  such  sale,  and  declaring  that  it  should  not  work 
a forfeiture.  St.  1844,  c.  166. 

This  act  is  short,  but  very  significant  and  efficacious.  Its 
avowed  purpose  is  to  facilitate  the  construction  of  a railroad 
between  Worcester  and  Providence,  as  a substitute  for  the 
canal ; it  authorizes  the  canal  company  to  make  sale  of  their 
entire  property,  or  any  part  or  portion  thereof,  and  to  convey 
the  same  to  any  purchaser  or  purchasers ; which  conveyance 
shall  vest  a good  title  to  such  property,  though  a change  of 
use  to  other  public  purposes  may  follow  such  sale. 

This  grant  provides,  and  indeed  the  whole  act  was  founded 
on  a principle  which  has  been  decided  in  this  Commonwealth, 
but  is  now  well  settled,  that  where,  under  the  authority  of 
the  legislature,  in  virtue  of  the  sovereign  power  of  eminent 
domain,  private  property  has  been  taken  for  a public  use, 
and  a full  compensation  for  a perpetual  easement  in  the  land 
has  been  paid  to  the  owner  therefor,  and  afterwards  the  land 
is  appropriated  to  a public  use  of  a like  kind,  as  where  a 
turnpike  has  by  law  been  converted  into  a common  highway, 
no  new  claim  for  compensation  can  be  sustained  by  the  owner 
of  the  land  over  which  it  passes. 

It  may  be  admitted,  in  the  present  case,  that  this  last  pur- 
pose was  incidental,  subordinate,  and  applied  only  to  heads 
of  water,  raised  for  the  more  prominent  purpose  of  supply- 
ing the  canal. 

Property  which  has  been  purchased  and  paid  for  by  the 
company,  and  which,  by  the  failure  of  the  main  enterprise, 
had  become  unnecessary  to  its  promotion,  and  which  could 
be  disposed  of  by  the  company,  without  injustice  to  anybody, 
was  obviously  of  this  description.  Of  the  equity  of  this 
rule,  as  applied  to  ordinary  articles  of  property,  such  as 
boats,  materials  of  buildings  removed,  and  the  like,  there 
could  be  no  doubt.  And  we  think  that  valuable  mill-powers, 
mill  privileges  and  reservoirs,  lawfully  acquired  by  the  com- 


Argument  of  Gen.  Butler. 


479 


pany,  within  the  scope  of  their  authority,  and  obtained  by 
the  outlay  of  their  own  capital,  though  in  their  nature  fixed 
and  immovable,  come  within  the  same  principle  ; and  that  it 
was  competent  for  the  legislature  to  secure  the  benefit  of 
them  to  the  company,  and  to  provide  for  their  continued 
corporate  existence  for  the  preservation  and  management  of 
such  articles,  or  the  sale  and  disposition  of  them,  and  that 
they  have  done  so  by  the  act  in  question. 

It  is  scarcely  necessary  to  add,  that  regarding  a mill-privi- 
lege as  a valuable  property,  capable  of  being  conveyed  and 
disposed  of,  it  necessarily  embraces  the  use  of  the  head  of 
water  raised  for  working  the  mills,  and  the  right  of  flowing 
as  incidental ; that  when  such  flowing  extends  over  the 
lands  of  another,  it  is  an  easement  to  such  lands  annexed 
to  the  privilege ; and  that  when  gross  damages  have  been 
paid,  by  the  owner  of  the  mill  to  the  owner  of  the  land,  for 
a perpetual  easement,  the  mill  privilege  carries  with  it  such 
easement  and  right  of  flowing,  free  from  all  further  claim  for 
damages  occasioned  by  such  flowing. 

The  court  are  of  the  opinion,  and  do  adjudge,  that  the 
complainant  is  not  entitled  to  damages  as  prayed  for,  and 
that  the  complaint  be  dismissed.” 

Now,  I agree  that  if  the  legislature  had  authorized  the 
Middlesex  Canal  to* sell  any  of  their  land,  which  they  held  as 
incidental  to  their  canal,  they  might  do  so.  and  will  do  so, — 
because  the  legislature  have  a right  to  deal  with  all  public 
property.  But  here,  in  this  case,  there  is  no  such  authority 
granted  or  given  whatever  ; and,  on  the  contrary,  the  parties 
claimed  that  they  held  subject  to  a reservation  to  the  canal ; 
and  the  whole  power  in  the  canal  property  is  in  the  canal 
corporation,  until  it  is  lawfully  discontinued.  Discontinued 
by  whom?  Why,  discontinued  by  an  act  of  the  legislature 
agreeing  to  its  discontinuance,  — not  by  forfeiture  of  all 
powers  and  franchise,  which  they  had  at  that  time.  And  we 
find,  may  it  please  your  Honors,  in  the  seventh  of  Gray, 
that  at  that  very  time  a petition  was  being  prosecuted  before 
the  Supreme  court,  for  the  purpose  of  allowing  the  canal 
company  to  discontinue,  which  petition  was  afterwards  dis- 
missed, as  we  learn  in  the  Middlesex  Canal  company’s  case. 

Mr.  Abbott.  That  petition  to  be  dissolved,  was  dismissed 
upon  the  ground  that  the  statute  did  not  apply  to  that  cl  as  of 
corporations. 

Mr.  Butler.  That  was  in  1864.  It  was  dismissed  with- 
out costs.  Here  is  the  petition  in  my  hand,  and,  perhaps,  for 
convenience  of  reference,  it  will  be  well  to  have  it  printed  in 
these  proceedings,  as  an  appendix  to  my  argument, 


480 


Argument  of  Gen.  Butler. 


Mr.  Abbott.  The  petition  to  dissolve  was  commenced 
previous  to  the  petition  to  forfeit. 

Mr.  Butler.  The  petition  was  filed  somewhere  in  1852, 
I believe. 

Mr.  Abbott.  I should  think  later  than  that. 

Mr.  Butler.  It  is  the  March  term,  1852.  You  will  find 
it  here.  It  was  pending  all  that  while. 

Commissioner  Russell.  There  was  no  opinion  of  the  full 
court  there,  was  there? 

Mr.  Abbott.  No,  sir. 

Mr.  Butler.  It  may  be  instructive  to  see  what  ground 
was  taken  here. 

Your  Honors  will  perceive  that  this  petition  thereupon 
remained.  The  canal  remained  undiscontinued,  until  these 
rights  were  forfeited  by  judgment  of  the  court,  and  the  action 
of  the  legislature  ; and  all  its  rights,  franchises  and  privileges 
were  seized  to  the  Commonwealth. 

Now,  then,  your  Honors  have  before  you  the  exact  state 
of  this  title.  And  the  first  question  is : Has  Mr.  Talbot 

taken  any  title  from  the  Middlesex  Canal,  by  the  deed?  Did 
he  take  the  title  by  the  deed  ? That  wholly  depends  upon 
the  power  of  the  corporation  to  convey. 

[. Recess  till  1J  o’clock , P.  M.~\ 


AFTERNOON  SESSION. 

I was  saying  at  the  adjournment,  may  it  please  your 
Honors  that  the  title  of  the  petitioners  depends,  first,  upon 
the  power  of  the  Middlesex  proprietors  to  sell  at  all ; second, 
upon  the  power  to  sell  in  the  manner  that  they  did ; and 
third,  upon  the  etfect  of  the  reservation  in  their  deed.  We 
claim  that  they  had  no  power,  without  an  authorization  from 
the  legislature,  to  sell  that  which  was  vital  to  the  use  of  their 
canal,  if  they  did  sell  it ; and  sub-modo  by  a deed  signed 
by  their  president  and  treasurer,  and  a majority  of  their 
directors.  It  being  a matter  vital  to  the  existence  of  the 
canal,  certainly  it  could  not  be  done  without  a vote  of  the 
stockholders, — which  nowhere  appears.  Secondly,  all  the 
real  estate  acquired  by  the  canal  being  sui  generis  real  estate, 
and  being  divided  as  real  estate  among  their  shareholders, 
it  could  not  be  sold,  of  course,  without  some  action  of  the 
shareholders. 

Mr.  Abbott.  I did  not  understand  that  any  question  was 
to  be  made  as  to  these  conveyances,  which  affect  the  existence 
of  the  company,  when  the  corporation  voted  that  the  directors 
might  sell  out,  and  the  directors  voted  that  they  would  sell. 


Argument  of  Gen.  Butler. 


481 


Mr.  Butler.  I wish  you  would  put  in  those  votes.  I do 
not  wish  to  get  from  your  Honors  a judgment  which,  after- 
wards, upon  the  production  of  some  new  fact,  might  be  liable 
to  be  overruled. 

Mr.  Abbott.  I will  show  them  to  you,  sir. 

Mr.  Butler.  Please  do  so  at  any  time  before  these  hear- 
ings are  closed. 

But  then  my  proposition  is,  that  if  I owned  real  estate  in 
conjunction  with  a majority  of  my  associates,  a majority  of 
those  associates  cannot  sell  this  real  estate.  All  this  real 
estate,  by  the  act  of  incorporation,  was  to  be  divided  into 
shares,  held  as  real  estate,  except  for  certain  specific  pur- 
poses ; and  that  is  set  up  in  the  answer. 

Now,  may  it  please  your  Honors,  I have  gone  over  and 
have  caused  to  be  gone  over  all  the  authorities  that  I can  find  in 
this  country  upon  this  question,  first  commencing  with  those 
in  our  own  reports  and  then  following  those  up  by  those  to 
be  found  in  the  several  State  reports.  They  are  contained 
in  this  brief,  — which  with  your  Honors’  leave  I will  have 
printed,  and  not  read.  They  fully  establish,  in  my  judg- 
ment, this  proposition,  — that  a corporation  have  no  power 
to  sell  any  portion  of  their  franchises  necessary  and  requisite 
to  carrying  out  the  object  of  their  corporate  existence.  It 
is  expressed  that  they  have  no  other  rights  of  property  ex- 
cept for  the  purpose  of  their  corporate  duties.  And  here  it 
is  very  clear  that  this  property  was  perfectly  vital.  Suppose 
they  had  been  called  upon  to  keep  up  their  canal  and  trans- 
port goods,  would  they  have  been  allowed  to  say,  " Why, 
we  have  sold  the  water-power  and  we  cannot  fill  our  canal  ”? 
Clearly  not.  It  is  expressed  by  Chief  Justice  Taney,  in  Per- 
rine  vs.  Chesapeake  and  Delaware  Canal  Co.,  in  the  i)th  of 
Howard,  p.  184,  in  these  words  : — 

" Now  it  is  the  well  settled  doctrine  of  this  court  that  a 
corporation  created  by  statute  is  a mere  creature  of  the  law, 
and  can  exercise  no  powers  except  those  which  the  law  con- 
fers upon  it  or  which  are  incident  to  its  existence. 

" The  error  in  this  argument  consists  in 

regarding  the  title  of  the  company  to  the  property  in  ques- 
tion as  derived  to  them  upon  common  law  principles,  and 
measuring  their  rights  by  the  rules  of  the  common  law.  The 
corporation  has  no  rights  of  property  except  those  derived 
from  tfie  provisions  of  the  charter,  nor  can  it  exercise  any 
powers  over  the  property  it  holds  except  those  with  which 
the  charter  has  clothed  it.  It  holds  the  property  only  for 
the  purposes  for  which  it  was  permitted  to  acquire  it,  — that 

is,  to  effectuate  the  objects  for  which  the  legislature  created 

it. ”  Vide  Head  & Emory  vs:  The  Providence  Ins.  Co.,  2 


482 


Argument  of  Gen.  Butler. 


Cranch,  127  ; Dartmouth  College  vs.  Woodward,  4 Wheat., 
636 ; Bank  of  U.  S.  vs.  Dandridge,  12  Wheat.,  64;  Charles 
River  Bridge  vs.  Warren  Bridge,  11  Pet.,  544. 

That  was  also  decided  in  Commonwealth  vs.  Smith  et  als., 
in  the  10th  of  Allen,  455,  — a case  with  which  I know  the 
chairman  is  familiar,  because  at  another  time  and  place  we 
had  to  examine  it  pretty  carefully  as  to  the  rights  of  a rail- 
road corporation  to  mortgage. 

Again,  according  to  the  4th  of  Peters,  162, — 

" This  mill  property  can  not  be  separated  from  the  canal. 
By  the  strict  interpretation  of  the  acts  above  referred  to, 
they  are  one  and  the  same.  ' The  exercise  of  the  corporate 
franchise  being  restrictive  of  individual  rights,  cannot  be  ex- 
tended beyond  the  letter  and  spirit  of  the  act  of  incorpora- 
tion.’ ” 4 Pet.,  162. 

And  that  is  sustained  by  a series  of  cases  which  I have 
cited. 

So  without  going  into  this  class  of  cases  I propose  simply 
to  print  this  brief,  which  will  give  you  all  the  authorities, 
and  the  vital  portions  of  the  decisions  written  out,  as  being 
in  a more  convenient  form  to  refer  you  to  books  which  you 
have  got  hereafter  to  have  with  you.  Everything  that  pro- 
poses itself  to  have  been  copied  I believe  to  have  been 
copied  correctly. 

By  an  act  passed  June  22,  1793,  the  legislature  incorporated 
James  Sullivan  et  als.  proprietors  of  the  Middlesex  Canal,  for  the 
purpose  of  cutting  a canal  from  the  waters  of  the  Merrimac  river 
into  the  waters  of  the  Medford  river. 

The  State  delegated  the  right  of  eminent  domain,  as  in  the  case 
of  turnpikes  ; the  land  and  water-rights  of  individuals  were  taken. 

The  corporation  was  “ authorized  and  empowered  to  purchase 
and  hold,  to  them  and  their  successors  forever,  so  much  land  and 
real  estate  as  may  be  necessar}^  for  the  purposes  aforesaid,  not  ex- 
ceeding,” etc. 

By  an  act  passed  February  28,  1795,  the  said  corporation  “ was 
empowered  to  receive  and  hold  real  estate,  as  appendant  to  the 
same  canal  and  for  the  purpose  of  facilitating  the  business  of  the 
same,  to  the  value  of  £30,000  over  and  above  the  value  of  the 
canal  simply  considered.” 

In  addition,  the  proprietors  were  empowered  to  make  the  Con- 
cord river  boatable  as  far  up  as  Sudbur}’  causeway ; to  cut  a canal 
around  Dunstable,  etc. 

By  an  act  passed  June  25,  1798,  after  reciting  the  “real  estate” 
clause  in  the  act  of  1795,  goes  on  to  state  that  the  proprietors 
“ having  expressed  their  doubts  whether  in  virtue  of  said  act  they 
ma}r  erect  and  hold  mills  on  the  same  canal,  and  on  the  waters 
with  which  it  is  or  shall  be  connected,” 

Be  it  enacted,  etc.,  that  “ the  corporation  of  the  Middlesex  Canal, 


Argument  of  Gen.  Butler. 


483 


or  the  proprietors  of  the  said  canal  in  their  corporate  capacity, 
shall  have  power  to  purchase  and  hold  an}T  mill-seats  on  the  waters 
connected  with  the  same  canal  and  lands  to  accommodate  the 
same,  and  thereon  to  erect  mills.  . . . And  provided  also 

that  all  the  mill-seats  and  land  purchased  or  received  lty  the  said 
corporaation  shall  not  exceed  the  sum  of  £130,000.”  (Obviously 
the  same  as  the  £30,000  clause  in  act  of  1795.) 

The  mill  property  is  to  be  taxed  the  same  as  the  canal,  wharves, 
towing-paths,  etc.,  mentioned  in  acts  of  1793  and  1795. 

A charter  of  incorporation  must  be  construed  strictly. 

A charter  of  incorporation  must  be  construed  in  favor  of  the 
public  and  against  the  grantees.  Contra  adend.  Black,  C.  J., 
27  Penn.,  339. 

44  The  corporation  has  no  rights  of  property  except  those  derived 
from  the  provisions  of  the  charter,  nor  can  it  exercise  any  powers 
over  the  property  it  holds  except  those  with  which  the  charter  has 
clothed  it.  It  holds  the  property  only  for  the  purpose  for  which  it 
was  permitted  to  acquire  it,  — that  is,  to  effectuate  the  objects  for 
which  the  legislature  created  it.”  Taney,  C.  J.,  in  Perrine  vs. 
Chesapeake  & Delaware  Canal  Co.,  9 Howard,  184;  vide  Heade 
et  al.  vs.  Providence  Insurance  Co.,  2 Cranch,  127  ; Dartmouth 
College  vs.  Woodward,  4 Wheat.,  636  ; Bank  of  U.  S.  vs.  Dand- 
ridge,  12  Wheat.,  64  ; Charles  River  Bridge  vs.  Warren  Bridge, 
11  Pet.,  544. 

The  act  of  1793  empowered  the  proprietors  to  cut  a canal  and 
do  such  other  things  as  were  necessary  to  that  end.  The  act  of 
1798  authorized  and  empowered  the  corporation  to  take  and  hold 
mill  seats.  Certainly  these  were  appendant  to  the  canal  and  for 
the  purpose  of  increasing  the  business  and  trade  thereof.  These 
were  additional  corporate  powers. 

Additional  corporate  powers  may  be  granted  enlarging  fran- 
chises already  possessed,  such  as  granting  to  a bridge  company 
the  privilege  of  laying  out  a turnpike  road  to  be  used  as  a feeder 
to  the  bridge.  Commonwealth  vs.  Hancock  Free  Bridge  Co.,  2 
Gray,  64  ; Canal  Bridge  vs.  Gordon,  1 Pick.,  297  ; Willink  vs. 
Morris  Canal,  3 Green,  ch.  377. 

This  mill  property  cannot  be  separated  from  the  canal.  By  the 
strict  interpretation  of  the  acts  above  referred  to  they  are  one  and 
the  same.  44  The  exercise  of  the  corporate  franchise  being  restrict- 
ive of  individual  rights,  cannot  be  extended  be}ond  the  letter  and 
spirit  of  the  act  of  incorporation.”  4 Pet.,  162;  1 Cowen,  686; 
5 Seld.,  444;  16  Ohio,  97;  18  Ohio,  151;  21  Penn.,  9;  27 
Penn.,  339. 

The  Middlesex  Canal  Company  erected  mills  and  used  the 
44  surplus”  water  not  needed  for  the  purposes  of  the  canal  in  run- 
ning the  mills.  Suppose  after  the  sale  of  the  mills  the  trade  of 
the  canal  had  increased  to  such  an  extent  that  all  the  water  was 
needed  for  the  purposes  of  the  canal,  — wouldn’t  the  mills  have  to 
stop?  Could  the  proprietors  of  the  canal,  to  the  great  incon- 
venience and  damage  of  the  public,  refuse  to  transport  goods  and 
passengers,  and  would  the  excuse  that  they  were  obliged  to  supply 
the  mills  be  a good  and  valid  one  as  against  the  charter? 


484 


Argument  of  Gen.  Butler. 


If  then  the  mills  were  appendant  to  the  canal,  and  the  act  of 
1798  was  but  the  enlargement  of  the  original  franchise,  it  follows 
that  the  mill  property  could  never  have  been  sold,  or,  in  other 
words,  that  the  present  proprietors  have  no  claim  to  the  wrater- 
rights  (leaving  out  the  question  of  alienation  of  the  land),  be- 
cause the  right  to  the  use  of  the  water  of  the  Merrimac  and  other 
rivers  was  a franchise. 

“ The  right  of  flowage  is  a franchise.”  Shaw,  J.,  Boston  Water 
Power  Co.  vs.  B.  & W.  Railroad,  16  Pick.,  522. 

“ You  cannot  declare  a franchise  lost,  or  cannot  take  it  away, 
except  at  the  instance  of  the  Government.”  Black,  J.,  in  Erie 
Railway  Company  vs.  Casey , 26  Penn.,  (S.)  289. 

And, 

“If  there  are  certain  immunities  and  privileges  in  which  the 
public  have  an  interest,  as  contra-distinguished  from  private  rights, 
and  which  cannot  be  exercised  without  authority  derived  from 
the  sovereign  power,  it  would  seem  that  such  privileges  and  im- 
munities must  be  franchises.”  The  People  vs.  Utica  Insurance 
Co.,  15  Johns.,  358. 

Then  the  right  to  take  the  waters  of  the  Merrimac  is  a franchise. 
But  the  water  taken  turned  the  mill-wheels  and  is  the  right  under 
which  the  present  owners  claim.  It  was  granted  as  a franchise  to 
the  proprietors  of  the  Middlesex  Canal.  But, 

“A  franchise  cannot  be  sold.”  24  How.,  257 ; 21  Law  Rep., 
138  ; 9 Sm.  & M.,  431 ; 40  Mo.,  140  ; 5 Ind.,  306. 

And, 

The  franchise  cannot  pass  except  by  authority  of  special  statute. 
State  vs.  Ivers,  5 Ind.,  305;  11  Ala.,  437 ; 13  Serg.  & R.,  210; 
12  Barb.,  460  ; 8 Smedes  & Marsh.,  394  ; 10  Johns.,  389. 

And  if  the  canal,  wharves,  towing-paths,  mills  and  mill-seats 
were  under  the  same  franchise  — 

“ Are  not  the  property  and  franchise  of  a public  corporation  an 
entire  thing?”  Farmers  Loan  and  Trust  Co.  vs.  Hendrickson,  N. 
Y.  Sup.  Court,  1858. 

The  right  of  a ferry  is  such  a franchise,  and  the  boats  required 
for  the  transportation  of  goods  and  passengers  are  inseparable 
from  the  franchise. 

Corporations  ma}T  sell  or  mortgage  their  personal  property,  but 
they  cannot  sell  or  mortgage  with  it  the  right  to  manage  and  control 
the  road  nor  any  other  corporate  right  or  franchise.  King  vs.  Sev- 
ern & Wye  Railway  Co.,  2 B.  & Aid.,  646;  Reg.  vs.  Eastern 
Counties  Railway,  10  Ad.  & Ellis,  531  ; Reg.  vs.  South  Wales 
Railway  Co.,  13  Ad.  & Ellis,  (N.  S.)  902  ; Clark  vs.  Washington, 
12  Wheat.,  46  and  54;  Winchester  & Lex.  Turn.  R.  Co.  vs.  V i- 
mont,  5 B.  Monroe,  1 ; 9 Smedes  & Marsh.,  395. 

But  if  the  right  to  take  water  for  canal  purposes  is  not  a fran- 
chise, it  was  granted  by  the  State  bv  the  right  of  eminent  domain  ; 
and  Foster,  J.,  in  Hinds  et  ah  vs.  Pinkerton,  14  Allen,  386,  said 
a railroad  company  “ can  sell  and  conve}T  whatever  property  it 
may  hold,  not  acquired  under  the  delegated  right  of  eminent 
domain,  or  so  connected  with  the  franchise  to  operate  and  manage 
a railroad  that  the  alienation  would  tend  to  disable  the  corpora- 


Argument  of  Gen.  Butler. 


485 


tion  from  performing  the  public  duties  imposed  upon  it  in  consid- 
eration of  which  its  chartered  privileges  have  been  conferred.” 

The  estate  remaining  in  a corporation  at  the  time  of  its  dissolu- 
tion reverts  to  the  original  grantor.  Angel  & Ames  on  Corp., 
164  ; 5 Ind.,  305,  309  ; 12  Barb.,  460  ; 4 Halst.,  (ch.)  277,  292. 

Then  we  come  to  another  question,  which  is  quite  vital  to 
this  matter.  That  deed  is  a quitclaim  deed,  reserving  all  the 
water  forever  for  the  uses  of  the  canal.  And  if  the  deed 
was  not  ultra  vires , if  it  was  duly  executed,  then,  I say,  it 
does  not  convey  the  water,  because  it  reserves  the  water  for- 
ever for  the  purposes  of  a canal,  i.  e.,  for  the  purposes  of  a 
highway.  I don’t  know  that  I need  trouble  your  Honors 
farther  upon  this  point.  * 

We  now  come  to  the  question  of  damages  ; and  I desire  to 
call  your  Honors’  attention  to  one  or  two  propositions  that 
have  been  made  here.  There  is  no  evidence,  and  there  is 
no  reason  to  suppose  that  the  water-shed  of  the  Sudbury 
river  is  more  productive  than  any  other  equal  area  of  water- 
shed. There  has  no  finical  reason  been  put  in,  and  there 
has  no  evidence  been  put  in  to  that  effect.  Then  to  what  are 
these  petitions  entitled  ? They  are  entitled  only  to  the  nat- 
ural run  of  the  stream,  *.  e.,  the  stream  in  a state  of  nature  ; 
not  what  it  may  have  been  made  by  other  people’s  dams, 
which  they  do  not  own.  That  wTas  decided  in  the  Cochitu- 
ate  water  cases  in  1847.  And  my  brother  Abbott,  being  a 
good  lawer,  has  not  asked  for  any  more  in  his  petition.  It 
says  : — 


“ And  your  petitioners  further  say,  that  Sudbury  river,  so  called, 
in  said  Commonwealth,  is  one  of  the  natural  sources  and  tributa- 
ries of  said  Concord  river  and  the  waters  thereof  one  and  the  prin- 
cipal means  of  supply  of  said  Concord  river,  and  that  the  waters 
of  said  Sudbury  river,  when  undisturbed  and  unobstructed  and  left 
to  their  natural  course  and  current,  flow  into  the  said  Concord 
river  above  the  lands,  mills  and  factories  of  your  petitioners  before 
described,  and  through  and  by  means  of  the  said  Concord  river, 
naturally  flow  and  pass  by  and  through  the  lands,  mills,  and  fac- 
tories of  your  petitioners,  and  furnish  power  for  running  and  oper- 
ating the  same,  and  are  of  great  value  to  and  advantage  to  your 
petitioners.” 

Then  they  go  on  and  say,  that  the  City  of  Boston  have, 
by  said  obstructions,  "diverted  the  said  waters  from  their 
natural  and  accustomed  flow  into  the  said  Concord  river.” 
They  then  proceed  as  follows  : — 

“ And  said  petitioners  further  say  that  by  means  of  said  perma- 
nent obstruction  of  the  natural  flow,  current,  and  course  of  the 


486 


Argument  of  Gen.  Butler. 


waters  of  the  said  Sudbury  river  and  Farm  pond,  and  the  taking, 
withdrawal,  and  diverting  thereof  as  aforesaid  from  their  natural 
and  accustomed  flow,  and  by  reason  and  means  also  of  the  said 
permanent  obstruction,  dam  and  erections,  which  the  said  City^  of 
Boston  has  built  and  erected  as  aforesaid,  and  still  maintains,  the 
waters  of  said  Sudbury  river  and  Farm  pond  do  not  and  cannot 
now  and  will  never  hereafter  flow,  as  they  did  and  would  naturally, 
into  the  said  Concord  river.” 

So  they  do  not  claim  anything  but  the  flow  of  Concord 
river,  which  I think  is  the  law. 

Now,  my  brother  undertakes,  by  means  of  bringing  a man 
who  remembers  how  many  horse-power  were  run  at  Saxon- 
ville,  to  show  that  one-fifth  was  equal  to  50,  or  80,  or  90  (I 
could  not  get  at  exactly  what  the  witness  meant  to  say) 
horse-power  during  the  dry  season.  That  cannot  be  so.  I 
will  tell  you  why  it  cannot  be  so.  It  is  in  evidence  that, 
during  the  year  1872,  we  took  all  the  water  of  Sudbury 
river  down  into  Lake  Cochituate,  and  it  amounted  to  only 
seven  millions  of  gallons  per  day.  That  is  the  first  fact; 
and  it  is  not  by  any  means  shown  by  the  rain-guages,  that 
that  was  an  exceptional  dry  season,  like  the  present  one. 
And  now  I am  dealing  with  all  the  flow  given  by  the  great 
accumulations  of  the  reservoirs  and  dams  above. 

Mr.  Abbott.  Where  is  the  evidence  that  there  was  any 
measurement  of  the  water  taken  by  the  City  ? 

Mr.  Butler.  In  the  City’s  report  you  will  find  that  they 
gauged  it. 

Mr.  Abbott.  I have  never  heard  one  particle  of  evidence 
upon  that  subject. 

Mr.  Child.  It  is  in  a passage  that  was  read  from  the  re- 
port for  1876,  stating  how  much  they  took. 

Mr.  Butler.  It  has  been  gone  over,  and  I have  argued 
it  at  least  twice,  and  it  has  got  to  be  an  old  story  with  me. 

Mr.  Abbott.  Whether  they  took  all  the  water  or  not  is 
what  I enquired. 

Mr.  Butler.  Oh,  yes,  sir.  They  took  all  they  had,  and 
wanted  more.  They  took  what  there  was  at  a certain  time, 
and  it  amounted  to  that  average.  But  I do  not  ground  my- 
self there.  The  Faulkners’  running  their  steam-engine  does 
not  show  but  what  Mr.  Talbot’s  mill  substantially  uses  all 
the  water  in  the  dry  season ; and  he  does  not  use,  at  most, 
but  about  187  horse-power.  And  he  has,  not  only  the  water- 
shed of  the  Sudbury  above  gaxonville,  but  some  75  miles  of 
the  water-shed  of  the  Sudbury  below  Saxonville,  in  addition 
to  the  Assabet  and  the  other  branches  of  the  Concord. 

Now,  it  is  said  that  there  is  but  one-fifth  of  the  water  sup- 
plied, and  that  therefore  it  cannot  be  taken,  — less  all  there 


Argument  or  Gen.  Butler. 


487 


is  of  soakage,  drainage  and  evaporation.  Now,  there  is  not 
a man  of  you  that  does  not  know  that  it  is  not  possible,  that 
there  can  be  any  such  price  per  horse-power,  by  steam,  as 
was  given  by  the  witness  from  here  in  Boston.  It  is  in 
evidence  before  you  that  the  Wamesit  Power  Company  let 
their  power,  furnishing  mills,  wheels  and  everything,  to  the 
very  pulleys,  for  seventy-five  dollars  per  horse-power  per 
year,  — and  they  expect  to  supplement  it  with  steam  in  the 
dry  season ; and  arrangements  are  made  for  doing  it.  And 
they  get  a profit  out  of  that,  over  and  above  what  it  costs. 

Now,  there  is  one  other  consideration  only,  that  I want  to 
call  your  attention  to,  and  that  is  this  : Mr.  Talbot  bought 
this  property  in  1851.  The  Essex  Company  were  in  opera- 
tion in  1819.  They  are  selling  horse-power  for  twenty 
dollars  a horse-power  a year,  and  they  have  been  ever  since, 
at  that  place,  in  every  possible  amount,  from  one  twelfth  of 
a mill-power,  or  from  a few  horse-power,  up  to  any  amount. 

That  establishes  a market  in  the  very  neighborhood.  It  is 
no  answer  to  say,  that  they  want  to  sell  their  lands.  They 
sell  to  others  ; and  corporations  that  have  got  all  their  mills 
established,  including  their  boarding-house,  and  everything 
else  connected  with  the  works.  They  sell  in  the  littlest 
amounts  (which  would  not  affect  their  lands  at  all)  for  twenty 
dollars  a year  per  horse-power.  Well,  now,  I appeal  to  you, 
gentlemen,  as  men  of  experience,  to  say,  if  you  do  not  know 
that  that  is  a higher  rate  than  any  other  corporation,  — either 
the  Turner’s  Falls,  the  Holyoke,  or  any  other  corporation 
sells  it  for.  You  can  get  it  any  and  everywhere  for  less. 
And  the  price  of  water-power  has  not  advanced,  It  is  the 
same.  The  Essex  Company  did  not  ask  any  more  for  it 
than  they  did  in  1849,  and  they  have  got  plenty  to  sell. 
Now,  what  is  the  rule?  It  is  the  market  price,  is  it  not,  if 
you  want  a rule,  — for  what  a man  loses,  but,  it  not  having 
advanced,  I call  your  attention  to  a sale  here.  Mr.  Talbot 
bu}^s  all  this  land,  — twenty-nine  and  some  odd  acres,  all  the 
mills  and  water-power,  and  all  the  dams  that  he  has  got  now, 
when  water-power  was  worth  as  much  as  it  is  now,  for 
$20,000.  He  buys  the  whole  of  it  for  that.  Well,  my 
brother,  says  : "That  is  Mr.  Talbot’s  good  bargain.”  Well, 
I am  content  to  say  that  he  made  a good  bargain.  He 
usually  does,  when  he  can  do  it  fairly.  He  is  a man  of 
shrewdness  and  business  capacity.  But  somebody  sold  it  at 
the  same  time,  didn’t  they?  Don’t  you  suppose  they  wanted 
the  market  price  ? Is  it  not  evidence  of  the  market  price  at 
that  time  ? 

Now,  how  much  are  we  to  pay  for  taking,  say  one-fifth  of 
that  water-power  ? You  are  to  deal  with  the  question  as 


488 


Argument  of  Gen.  Butler. 


practical  men.  You  are  to  answer  on  your  consciences  and 
judgments  as  practical  men.  Mr.  Talbot  buys  a water-power 
in  1851,  when  water-power  was  just  as  dear  as  it  is  now,  and 
no  dearer,  — when  water-power  is  worth  just  as  much  as  it 
is  pow,  and  no  more  and  no  less  ; and  he  buys  a whole  estab- 
lishment, dealing  with  a public  corporation,  for  $20,000, — 
and  twenty-nine  acres  of  land  besides  ! Are  you  going  to 
give  him  $100,000,  for  one-fifth  of  it,  or  $200,000?  I trow 
not ! You  never  can  look  yourselves  in  the  face  in  the  glass 
again,  I respectfully  submit,  much  less  look  your  fellow- 
citizens  in  the  face,  if  such  an  award  shall  be  made.  It  is 
not  the  way  men  deal.  It  is  not  the  way  that  men  hold  their 
property.  I understand  that  a man  can  buy  the  land,  as  the 
Essex  Company  did,  and  create  a water-power,  and  bring  their 
lands  up,  and  it  is  not  to  be  said  to  them  " why,  you  bought 
it  cheap,  and  it  is  worth  a great  deal  by  the  rise  of  the  land.” 
But  the  gentleman  bought  the  water-power  at  that  time,  and 
it  has  not  grown  any  more  valuable  in  the  market.  Within 
six  miles  of  them  you  can  buy  water-power,  just  as  much  as 
you  please,  steady,  perpetual,  kept  up  for  $20  a horse-power 
a year.  How  much  are  you  to  give  them?  And  how  much 
are  you  to  give  when  we  do  not  take  that  water-power,  so 
bought  for  $20,000,  but  one-fifth  of  it : so  as  to  injure  them, 
upon  the  very  fair,  just  and  proper  statement  of  Mr.  Talbot, 
only  to  the  extent  of  one-fifth  of  it?  It  does  not  trouble 
them  more  than  three  months  in  the  year,  one-quarter  of 
one-fifth  is  one-twentieth,  as  I understand  it.  You  see  these 
gentlemen  have  got  their  ideas  very  much  inflated.  It  will 
not  do  to  allow  a man  to  value  his  own  property. 

Now  I have  given  you  these  few  practical  suggestions. 
I am  not  going  into  the  argument  of  water-sheds,  or  rain 
gauges,  or  rain  measurements.  This  is  the  reason  why  I 
have  put  in  no  measurements,  because  I am  quite  satisfied 
with  the  showing,  as  these  gentlemen  make  it,  when  it  is 
fairly  and  justly  considered. 

Now,  gentlemen,  one  other  point  and  I will  relieve  you. 
I have  over  and  over  again  taken  the  point  before  you  that 
this  statute,  that  the  parties  must  fail  to  agree  before  they 
shall  be  sued,  means  something.  There  is  no  surprise  upon 
my  brother,  because  I gave  him  notice  while  his  case  was 
going  on.  And  not  only  has  there  not  been  a scintilla  of 
proof  that  they  ever  called  upon  the  city  so  that  the  city 
could  pay,  but  in  their  petition  they  do  not  set  an  ad  dam- 
num, that  we  might  make  a tender.  They  leave  it  in  the 
indefinite  imagination  of  some  man  that  they  can  get,  who 
runs  a small  machine-shop  down  in  Hay  market  square. 
They  nowhere  put  in  an  ad  damnum  in  their  complaint,  and 


Argument  of  Gen.  Butler. 


489 


say  " to  the  damage  so  much  ; 99  and  I guess  if  my  brother 
was  put  upon  the  stand,  when  the  commissioners  went  up  to 
take  a view  (I  was  not  there,  and  so  I can  only  "guess”), 
it  will  turn  out  that  they  asked  him  to  set  a price,  and  he 
was  so  modest  that  he  would  not.  He  was  afraid  that  he 
should  set  it  too  low,  I suppose.  But,  however,  that  is  not 
before  you,  — 

Mr.  Abbott.  It  is  pretty  good  evidence  that  we  could 
not  agree  then. 

Mr.  Butler.  Pardon  me  ; " You  could  not  agree  ! 99  An 
agreement  means  that  one  man  shall  make  a demand  on  the 
other,  who  shall  accede  to  or  reject  it.  But  if  a man  will  not 
make  any  demand  at  all,  there  is  no  disagreement  about  it. 
That  is  not  in  the  meaning  of  the  statute. 

Now  this  is  not  merely  formal,  let  me  say  once  more,  — 
because  here  is  land  taken  for  a great  public  use.  It  is  for 
the  benefit  of  all,  — because  we  are  all  interested  in  the  city 
of  Boston.  It  is  for  the  benefit  of  the  public.  And  it  is 
also  for  the  benefit  of  all  that  there  should  be  no  more  litiga- 
tion about  this  than  is  necessary,  and  that  the  agents  of  the 
public  should  be  entitled  at  least  to  have  information  as  to 
anybody  that  claims  to  be  injured,  — they  operating  over  a 
territory  160  or  170  miles  square,  and  not  knowing  whom 
they  did,  could,  or  might  injure.  Before  they  are  sued  and 
put  to  expense,  they  should  at  least  have  a man  come  to 
them  and  say,  " You  injure  me,  and  I think  about  so  much,”  — 
so  that  they  may  make  an  adjustment,  or  have  their  attention 
called  to  the  injury.  And  that  was  what  was  the  meaning  of 
the  statute. 

Gentlemen,  the  case  is  before  you.  I do  not  believe  that 
I can  aid  you  any  farther  by  anything  I may  say.  I am  sorry 
I have  trespassed  upon  your  time  so  long ; but  these  ques- 
tions which  I have  suggested  this  morning  are  very  vital,  and 
very  important,  and  there  are  certain  corollaries  from  them, 
I think;  and  one  is,  that  if  this  water  was  taken  by  the 
Essex  Canal  Company  and  carried  to  Boston,  it  was  paid  for, 
and  having  been  once  paid  for,  for  the  public  use,  why  then 
it  comes  within  every  decided  case,  and  especially  the  case 
of  Chase  vs.  Sutton,  that  it  cannot  be  paid  for  over  again, 
when  devoted  to  another  public  use. 

In  Commonwealth  vs.  Smith  et  als.  10  Allen , 455. 

Bill  in  equity  seeking  to  impeach  the  validity  of  a mortgage  cov- 
ering by  its  terms  the  franchise,  railroad  and  all  other  property  of 
the  corporation,  etc. 

Hoar,  J.  A corporation  having  the  capacity  to  sue  and  be  sued, 
the  right  to  make  contracts,  under  which  it  majT  incur  debts,  and 


490 


Argument  of  Gen.  Butler. 


the  right  to  make  and  use  a comman  seal,  a contract  under  seal  is 
not  only  within  the  scope  of  its  powers,  hut  was  originally  the 
usual  and  peculiarly  appropriate  form  of  corporate  agreement. 

The  general  power  to  dispose  of  and  alienate  its  property  is 
also  incidental  to  every  corporation  not  restricted  in  this  respect  by 
express  legislation  or  by  u the  purposes  for  which  it  is  created,  and 
the  nature  of  the  duties  and  liabilities  imposed  by  its  charter” 

But  in  the  case  of  a railroad  company  created  for  the  express 
and  sole  purpose  of  constructing,  owning  and  managing  a railroad  ; 
authorized  to  take  land  for  this  public  purpose  under  the  right  of 
eminent  domain  ; whose  powers  are  to  be  exercised,  by  officers  ex- 
pressly designated  by  statute  ; having  public  duties,  the  discharge  of 
which  is  the  leading  object  of  its  creation,  etc., — ‘there  are  great, 
and,  in  our  opinion,  insuperable  objections  to  the  doctrine  that  its 
franchise  can  be  alienated  and  its  powers  and  privileges  conferred 
by  its  own  act  upon  another  person  or  body,  without  authority  other 
than  that  derived,  from  the  fact  of  its  own  incorporation,  The  fran- 
chise to  be  a corporation,  clearly,  cannot  be  transferred  by  any 
corporate  body  of  its  own  will.  Such  a franchise  is  not  in  its  own 
nature,  transmissible.  The  power  to  mortgage  can  only  be  coex- 
tensive with  the  power  to  alienate  absolutely,  because  ever}’  mort- 
gage may  become  an  absolute  conveyance  by  foreclosure.  And 
although  the  franchise  to  exist  as  a corporation  is  distinguishable 
from  the  franchises  to  be  enjoyed  and  used  by  the  corporation  after 
its  creation,  yet  the  transfer  of  the  latter  -differs  essentially  from 
the  mere  alienation  of  ordinary  corporate  property.  The  right  of 
a railroad  company  to  continue  in  being  depends  upon  the  per- 
formance of  its  public  duties.  Having  once  established  its  road,  if 
that  and  its  franchise  of  managing,  using  and  taking  tolls  or  fares 
upon  the  same  are  alienated,  its  whole  power  to  perform  its  most 
important  functions  is  at  an  end.  A manufacturing  company  may 
sell  its  mill,  and  buy  another ; but  a railroad  corporation  cannot 
make  a new  railroad  at  its  pleasure. 

In  Richardson  et  als  vs.  Sibley,  10  Allen , 67. 

A street  railway  corporation  has  no  power  to  mortgage  its  fran- 
chise, road  or  property  without  legislative  authority ; and  under 
stat.  1864,  ch.  229,  a mortgage  by  such  corporation  of  substan- 
tially all  of  its  property  without  such  authority  is  wholly  void. 

Gray,  J.  A corporation  has  no  power  to  do  any  acts  which  the 
legislature  has  expressly  or  by  necessary  implication  prohibited  it 
from  doing.  A corporation  created  for  the  very  purpose  of  con- 
structing, owning  and  managing  a railroad  for  the  accommodation 
and  benefit  of  the  public,  cannot,  without  distinct  legislative 
authority,  make  any  alienation,  absolute  or  conditional,  either  of 
the  general  franchise  to  be  a corporation,  or  of  the  subordinate 
franchise  to  manage  and  carry  on  its  corporate  business,  without 
which  its  franchise  to  be  a corporation  can  have  little  more  than  a 
nominal  existence/*  Shrewsbury  & Birmingham  Railway  vs. 
London  & Northwestern  Railway,  6 II.  Seas.,  136,  137 ; York  & 
Maryland  Line  Railroad  vs.  Winans,  17  How.  39;  Worcester  vs. 
Western  Railroad,  4 Met.  5G6  ; Commonwealth  vs.  Smith,  10  Allen, 
455,  456. 


Argument  of  Gen.  Butler. 


491 


In  Spencer  et  als.  vs.  Pinkerton,  14  Allen,  386. 

Bill  in  equity  brought  by  trustees  under  a mortgage  issued  by 
the  Grand  Junction  R.R.  and  Depot  Company,  as  security  for  cer- 
tain lands  of  said  company7,  to  compel  the  defendant  specially  to 
perform  his  written  agreement  to  accept  and  pay  for  certain  lands 
in  East  Boston,  bid  off  by  him  at  auction.  At  the  date  of  the 
mortgage  referred  to,  the  company  held  large  tracts  of  land  in  East 
Boston,  upon  which  it  was  engaged  in  building  Wharves  and  ware- 
houses for  storage,  etc.  These  lands  were  not  required  for  the 
railroad  track  or  for  other  railroad  purposes. 

Foster,  J.  We  entertain  no  doubt  that  the  Grand  Junction  R.R. 
and  Depot  Co.  could  lawfully  sell  and  convey  the  lands  embraced 
in  this  bill.  They  were  not  acquired  to  enable  the  corporation  to 
carry  on  the  business  which  it  was  chartered  to  do  for  the  benefit  of 
the  public,  nor  needed  or  used  for  that  purpose.  Their  alienation 
in  no  wise  impaired  or  affected  the  usefulness  of  the  company  as  a 
railroad  or  its  ability  to  exercise  any7  of  its  corporate  franchises. 
. . . . . The  recent  cases  in  which  railroad  mort- 

gages have  been  adjudged  invalid  by  this  Court  do  not  countenance 
any  doubt  of  the  power  of  a railroad  company  to  sell  and  convey 
whatever  property  it  may  hold,  not  acquii'ed  under  the  delegated 
right  of  eminent  domain , or  so  connected  with  the  franchise  to 
operate  and  manage  a railroad  that  the  alienation  would  tend  to 
disable  the  corporation  from  performing  the  public  duties  imposed 
upon  it  in  consideration  of  which  its  chartered  privileges  have  been 
conferred. 

The  special  permission  of  the  act  relative  to  this  company  con- 
templates the  acquisition  of  lands  for  sale  or  lease  to  other  railroads, 
and  the  parcels  included  in  the  bill  are  agreed  to  have  been  pur- 
chased for  such  purposes,  and  not  for  the  corporation  in  its  own 
railroad  business. 

In  Boston  Water  Power  Co.  vs.  Boston  & Worcester  R.R.  Corp ., 
16  Pick.,  522. 

Shaw,  C.  J.  But  the  right  of  making  use  of  the  land  of 
others,  whether  it  be  that  of  the  public  or  of  individuals,  for  a 
precise  and  definite  purpose,  not  inconsistent  with  a general  right 
of  property  in  the  owner,  especially  where  it  is  for  a public  use, 
is  in  legal  contemplation  an  easement  or  franchise,  and  not  a grant 
of  the  soil  or  general  property. 

And  upon  the  best  consideration  which  we  have  been  able  to 
give  to  these  statutes,  the  Court  are  all  of  opinion  that,  so  far  as  the 
right  of  flowage  is  concerned,  the  right  conferred  was  a franchise. 

It  seems  to  be  no  valid  objection  to  this  view  of  the  case,  that 
the  easement  is  of  such  a character  as  to  deprive  the  owner  of  all 
useful  or  available  beneficial  interest  in  the  land.  In  case  of  land 
appropriated  to  the  use  of  a turnpike  corporation,  although  the  cor- 
poration obtains  the  entire  use  of  the  surface  of  the  land,  as  well  for 
use  as  a travelling  path,  as  for  collecting  gravel,  earth,  materials  for 
constructing  it,  and  although  in  point  of  fact  in  assessing  damages 
for  the  owner  in  such  a case,  the  whole  value  of  the  land  is  usually 
gain,  dedicating  nothing  for  the  general  right  of  ownership,  yet  it 
is  clearly  held  that  such  right  of  property"  in  the  original  owner  is 
not  divested  ; the  right  of  the  corporation  is  an  easement  only7. 


492 


Argument  of  Gen.  Butler. 


In  Dudley  Adams  vs.  Billy  Emerson,  6 Pick.,  57. 

The  owner  of  the  soil  over  which  a turnpike  road  is  laid  out  may 
maintain  tresspass  against  the  servant  of  the  corporation  for 
taking  the  herbage. 

Wilde,  J.  The  locus  in  quo,  although  part  of  a turnpike  road, 
is  the  soil  and  freehold  of  the  plaintiff.  He  has  the  exclusive  right 
of  property  in  the  land,  subject,  however,  to  the  easement  or 
rights  incident  to  a public  highway,  such  as  the  right  of  passage 
over  it,  and  the  right  which  the  turnpike  corporation  has  to  con- 
struct a convenient  pathway,  and  to  keep  it  always  in  good  repair. 
To  accomplish  these  purposes,  the  corporation  may  dig  up  and 
remove  from  place  to  place,  within  the  limits  laid  out  for  the  road, 
amT  earth,  sand  and  gravel,  and  may  dig  or  cut  up  sods  and  turf ; 
but  it  b}T  no  means  follows  that  the  corporation  has  the  right  of 
herbage,  which  is  the  exclusive  property  of  the  owner  of  the  soil, 
as  well  as  all  trees,  mines,  etc.  The  corporation  has  no  right  of 
p roper t}'  in  the  land,  but  only  a servitude  or  easement,  and  this 
does  not  clash  with  the  plaintiff’s  exclusive  right  of  property  in  the 
land,  so  that  there  is  no  pretence  for  sa}ing  that  the  plaintiff  and 
the  corporation  are  tenants  in  common.  Vide  6 Mass.,  454;  16 
Mass.,  33  ; 4 Mass.,  427  ; 13  Mass.,  257. 

Hooker  vs.  Utica  and  Minden  Turnpike  Road  Company,  12 
Wend.,  371. 

A turnpike  road  company  neglected  to  finish  the  construction  of 
their  road  within  the  time  limited  b}’  their  charter ; they  aban- 
doned a portion  of  it  and  permitted  the  owners  of  lands  through 
which  it  passed  to  enclose  the  same.  The  company  have  no  right 
to  sue  for  penalties  for  injuries,  etc.,  to  that  portion  not  occupied 
b}r  them,  although  the  company  went  into  operation,  constructed  a 
portion  of  the  road,  were  permitted  to  erect  a gate,  and  had  the 
damages  of  the  owners  of  the  lands  through  which  the  road  was 
laid  duly  appraised.  It  seems  that  the  title  to  the  land  over 
which  the  road  passes  vested  in  the  compan}T,  is  vested  solefy  for 
the  purposes  of  a road,  and  that  when  the  road  is  abandoned  the 
land  reverts  to  the  original  owners. 

Nelson  J.  Although  the  act  of  incorporation  vests  in  the  company 
the  title  to  the  lands  over  which  the  road  passes,  on  compliance  by 
them  with  the  provisions  of  the  act,  such  title  must  nevertheless  be 
considered  as  vested  onfy  for  the  purposes  of  a road,  and  when  the 
road  is  abandoned,  the  land  reverts  to  the  original  owners. 

And  vide  Canal  Company  vs.  Railroad  Company.  4 Gill  and 
J.,  1. 

Peirce  et  al.  vs.  Somersworth  et  al.,  10  N.  H.,  369. 

Where  a highway  is  laid  over  a turnpike  road,  and  the  ease- 
ment or  franchise  of  the  corporation  is  taken,  it  is  not  necessary 
to  notify  the  owners  of  the  land  over  which  the  turnpike  road  was 
established.  Having  been  paid  for  a perpetual  easement,  or  right 
of  passage  for  the  public,  they  have  no  claim  for  further  compen- 
sation merely  because  the  right  of  passage  is  discharged  from  a 
tax  or  toll. 

Parker,  C.  J.  There  was  no  necessit}’  of  notifying  the  owners 
of  the  land  over  which  the  turnpike  road  had  been  previously 


Argument  of  Gen.  Butler. 


493 


laid.  The  establishment  of  that  road  gave  the  corporation  an 
easement  in  the  land  thus  taken  for  the  public  travel ; and  if  the 
highway  is  laid  over  the  same  ground  onty,  nothing  is  taken  by  it 
but  that  easement.  The  easement,  in  which  the  turnpike  cor- 
poration had  a private  interest,  but  which  was  devoted  to  the  use 
of  the  public,  subject  to  the  pa}unent  of  a toll  to  the  corporation, 
is  taken  by  the  highway  for  the  public  use,  discharged  and  ex- 
empted from  the  toll  ; but  in  this  matter  the  owners  of  the  land 
over  which  the  turnpike  road  passed  have  no  interest.  They  are 
not  damnified  b}T  the  change.  The  turnpike  corporation  had  taken 
and  held  a perpetual  right  of  passage  for  the  public.  The  conver- 
sion of  this  into  a free  right  of  passage,  or,  in  other  words,  the 
taking  of  this  easement  and  franchise  for  the  free  use  of  the  pub- 
lic, is  a damage  to  the  corporation,  but  the  rights  of  the  land- 
holders have  thereby  undergone  no  change So  far  as 

the  owners  of  the  land  are  concerned,  it  is  a substitution  of  a 
public  right  for  a right  previously  existing,  partly  public  and 
partly  private,  but  which  was  coextensive,  in  its  limits  and  dura- 
tion with  that  which  is  substituted.  If  a discontinuance  of  the 
turnpike  road  would  have  restored  the  owners  to  the  possession  of 
the  land,  so  will  a discontinuance  of  the  highway,  and  there  is 
nothing  to  show  that  the  one  is  more  likely  to  happen  at  an  early 
day  than  the  other.  If  there  was,  it  would  not  alter  the  nature  of 
the  property.  The  owners  have  been  paid  for  a perpetual  ease- 
ment or  right  of  passage  for  the  public,  and  have  no  claim  for 
further  compensation  merely  because  the  right  of  passage  is 
discharged  from  a tax  upon  it  to  the  corporation. 

The  third  objection  cannot  be  taken  by  these 

respondents ; and  its  truth,  therefore,  need  not  be  inquired  into 
here.  The  turnpike  corporation  was  duly  constituted,  have  con- 
structed the  road,  and  are  in  full  occupation  of  the  franchise  and 
easement.  If  they  have  neglected  to  compty  with  any  provisions 
of  the  charter,  imposing  upon  them  the  duty  of  making  subse- 
quent returns,  a forfeiture  can  be  enforced  by  the  government 
alone.  If  the  government  waive  the  right  to  exact  a forfeiture, 
individuals  cannot  show  and  rely  upon  it.  5 Mass.,  232  ; 7 Conn., 
46  ; 6 Cowen’s,  23. 

The  Queen  on  the  prosecution  of  the  Llanelly  Railway  and  Dock 
Co.  vs.  The  South  Wales  Railroad  Co.,  14  Q.  B.,  902. 

The  South  Wales  Railway  Company,  having  power  to  take  and 
purchase  lands,  and  to  construct  a railway  according  to  the  plans 
and  books  of  reference  deposited  under  their  act,  gave  notice  to 
the  Llanelly  Railway  and  Dock  Company  that  they  (The  South 
Wales  Railroad  Company)  required  to  purchase  a small  piece  of 
land,  on  part  of  which  the  Llanelly  Railway  was  actually  con- 
structed, such  piece  of  land  being  set  out  in  the  said  plans  and 
books  of  reference  as  part  of  the  proposed  line  of  the  South  Wales 
Railway,  but  they  afterwards  refused  to  issue  their  warrant  to  the 
sheriff  to  assess  the  amount  of  purchase  money,  on  the  ground 
that  the  Llanelly  Railway  and  Dock  Company  had  no  power  under 
their  act  to  sell  any  portion  of  land  on  which  their  railway  was 
constructed. 


494 


Argument  of  Gen.  Butler. 


Held,  on  a mandamus  to  the  South  Wales  Railway  Company  to 
issue  their  warrant,  that,  as  there  was  no  express  claim  in  any 
special  or  general  act  of  Parliament  which  authorized  either  the 
Llanelly  Railway  and  Dock  Company  to  sell  an}’  part  of  their  actual 
line  of  railway,  or  the  South  Wales  Railway  Company  to  purchase 
it,  the  authority  was  not  to  be  implied  from  the  general  power 
given  to  the  South  Wales  Railway  Company  to  make  their  line  and 
to  purchase  lands  according  to  their  deposited  plans  and  books  of 
reference. 

InErie  and  Northeast  Railroad  Company  vs.  Casey ,2  Penn.,  307. 

Black,  J.  When  a corporation  is  dissolved  by  a repeal  of  its 
charter,  the  legislature  may  appoint  or  authorize  the  governor  to 
appoint  a person  to  take  charge  of  its  assets  for  the  use  of  the 
creditors  and  stockholders ; and  this  is  not  confiscation  any  more 
than  it  is  confiscation  to  appoint  an  administrator  to  a dead  man, 
or  a committee  for  a lunatic.  But  money,  goods  or  lands  which 
are  or  were  the  private  property  of  a defunct  corporation  cannot 
be  arbitrarily  seized  for  the  use  of  the  state  without  compensation 
paid  or  provided  for.  This  act,  however,  takes  nothing  but  the 
road.  Is  that  private  property  ? Certainly  not ! It  is  a public 
highway,  solemnly  devoted  by  law  to  the  public  use.  When  the 
lands  were  taken  to  build  it  on,  they  were  taken  for  public  use, 
otherwise  they  could  not  have  been  taken  at  all.  It  is  true  the 
plaintiffs  had  a right  to  take  tolls  from  all  who  travelled  or  carried 
freight  on  it,  according  to  certain  rates  fixed  in  the  charter,  but  that 
was  a mere  franchise,  a privilege  derived  entirely  from  the  charter, 
and  it  was  gone  when  the  charter  was  repealed.  The  State  may 
grant  to  a corporation,  or  to  an  individual,  the  franchise  of  taking 
tolls  on  any  highway  opened,  or  to  be  opened,  whether  it  be  a rail- 
road or  river,  canal  or  bridge,  turnpike  or  common  road.  When 
the  franchise  ceases  by  its  own  limitation,  by  forfeiture,  or  by 
repeal,  the  highway  is  thrown  back  on  the  hands  of  the  State,  and 
it  becomes  her  duty,  as  the  sovereign  guardian  of  the  public  rights 
and  interests,  to  take  care  of  it 

Railroads  made  by  the  authority  of  the  Commonwealth  upon 
land  taken  under  her  right  of  eminent  domain,  and  established  by' 
her  laws  as  thoroughfares  for  the  commerce  that  passes  through 
her  borders,  are  her  highways.  No  corporation  has  any  property 
in  them,  though  corporations  may  have  franchises  annexed  to  and 
exercisable  within  them. 

Backus  et  al.  vs.  Lebanon  et  al.,  11  N.  H .,  19. 

Parker,  C.  J The  organization  has  been  made,  the 

road  has  been  constructed ; and  the  corporation  has  been  in  the 
full  exercise  of  all  its  powers.  But  we  look  in  vain  for  any  stip- 
ulation that  the  property  acquired  by  the  corporation  under  that 
contract,  whether  that  property  be  corporeal  or  incorporeal,  shall 
be  exonerated  from  contributing  like  other  property  to  the  public 
burdens,  or  is  exempted  from  any  liability  to  which  property  is 
usually  subjected  in  the  hands  of  any  citizen  of  the  State.  There 
is  nothing  in  the  terms  of  the  grant,  nor  in  the  nature  of  the  case 
to  show  a contract,  express  or  implied,  that  the  property  of  the 
corporation  should  not  be  taken  for  the  public  use,  if  it  holds  any 


Argument  of  Gen.  Butler. 


495 


of  such  a nature  that  the  public  exigency  may  require  it  for  that 
purpose. 

. . . . It  cannot  be  inferred  from  the  nature  of  the  prop- 

erty. The  fact  that  the  corporation  does  not  own  the  fee  of  the 
land  over  which  the  road  is  constructed,  does  not  imply  any 
such  stipulation,  nor  the  fact  that  a part  of  the  property  is  a 
franchise.  . . . 

The  fact  that  the  public  may  now  have  a use  of  the  road  con- 
structed by  the  turnpike  corporation,  does  not  show  that  the  public 
interest  may  not  require  that  a public  highway  be  laid  over  the 
same  ground.  The  right  at  present  enjoyed,  although  a public 
use,  is  of  a limited  character,  subject  to  the  pa}Tment  of  a toll ; 
and  there  may  be  a necessity  for  an  open  public  highway,  which 
all  the  citizens  may  use  free  of  charge.  . . And  there  is  noth- 

ing in  the  nature  of  the  corporation,  or  of  the  property  it  holds,  to 
prevent  the  existence  and  exercise  of  this  right.  . . . 

The  power  to  take  by  eminent  domain  may  be  exercised  by 
county  court. 

The  Trustees  of  Vernon  Society  vs.  Jesse  Hills , 6 Cowen , 25. 

(As  to  whether  a defendant  can  show  that  a corporation  has 
forfeited  its  corporate  rights  by  mis-user  or  non-user.) 

Curia,  per  Savage,  Ch.  J.  It  is  settled  by  the  repeated  de- 
cisions of  this  Court,  that  when  a corporation  sues,  they  are 
bound,  on  the  general  issue,  to  prove  that  they  are  a corporation. 

. In  Slee  vs.  Blorm  (5  Johns.,  ch.  Rep.,  379,  381), 
Chancellor  Kent  held  that  the  forfeiture  of  corporate  rights  must 
be  judicially  ascertained  and  declared ; and  that  corporate  power 
which  may  have  been  abused  or  abandoned  cannot  be  taken  away 
but  b}T  regular  process.  He  considers  the  cases,  and  expresses  the 
belief  that  there  is  no  instance  of  calling  in  question  the  rights  of  a 
corporation,  as  a body,  for  the  purpose  of  declaring  its  franchises 
forfeited  and  lost,  but  at  the  instance  and  on  behalf  of  the  govern- 
ment. 

In  Perrine  vs. Chesapeake  and  Delaware  Canal  Co.,  9 Howard,  184. 

Taney,  Ch.  J.  Now  it  is  the  well-settled  doctrine  of  this 
Court,  that  a corporation  created  by  statute  is  a mere  creature  of 
the  law,  and  can  exercise  no  powders,  except  those  which  the  law 
confers  upon  it,  or  which  are  incident  to  its  existence. 

. The  error  of  this  argument  consists  in  regarding 
the  title  of  the  company  to  the  property  in  question,  as  denied  to 
them  upon  common  law  principles,  and  measuring  their  rights  by 
the  rules  of  the  common  law. 

The  corporation  has  no  rights  of  property  except  those  derived 
from  the  provisions  of  the  charter,  nor  can  it  exercise  any  powers 
over  the  property  it  holds,  except  those  with  which  the  charter  has 
clothed  it.  It  holds  the  propert}”  only  for  the  purposes  for  which 
it  was  permitted  to  acquire  it,  that  is,  to  effectuate* the  objects 
for  which  the  legislature  created  it. 

Vide  Head  & Emory  vs.  The  Providence  Ins.  Co.,  2 Cranch,  127  ; 
Dartmouth  Coll.  vs.  Woodward,  4 Wheat,  636  ; Bank  of  U.  S.  vs. 
Dandridge,  12  Wheat,  64 ; Charles  River  Bridge  vs.  Warren 
Bridge,  11  Pet.,  544. 


496 


Argument  of  Gen.  Butler. 


In  Ammant  vs.  The  President,  Managers  and  Company  of  the 
New  Alexandria  and  Pittsburg  Turnpike  Railroad , 13  Serg.  & 
E .,  210. 

Tilghman,  C.  J.  It  has  been  decided  that  eve^  kind  of  in- 
terest in  land,  legal  or  equitable,  is  subject  to  an  execution  in  this 
State.  But  it  does  not  appear  that  the  turnpike  company  had  any 
estate  of  am'  kind  in  the  land  over  which  this  road  runs.  They 
were  incorporated  by  the  legislature  for  a special  purpose,  in  which 
the  public  were  much  interested.  They  were  permitted  to  enter  on 
the  land  and  make  a road,  under  certain  regulations,  and  when  the 
road  was  finished  and  approved  by  the  Governor,  to  take  certain 
tolls.  But  there  is  nothing  in  the  incorporating  act  which  au- 
thorizes the  company  to  transfer  their  right  to  other  persons  ; and 
such  transfer  would  be  certainly  inconsistent  with  the  whole  design 
and  object  of  the  law. 

In  Coe  vs.  The  Columbus,  Piqua  and  Indiana  Railroad  Co .,  10 
Ohia  State  R.,  375. 

The  original  action  in  the  Court  below  was  brought  b}’  Geo.  S. 
Coe,  Trustee,  against  the  railroad  companj’  and  others,  piling  for 
a judgment  for  the  sale  of  the  railroad  and  other  property  of  said 
compan}’  conveyed  to  said  Coe,  in  trust,  to  secure  the  payment  of 
certain  bonds  and  interest-coupons  of  said  company. 

Gholson,  J Several  of  the  questions  which  are 

presented  require  an  inqui^  into  the  general  powers  of  the  com- 
pany to  dispose  of  its  property,  and  into  the  liability  of  that 
property  to  be  subjected  to  the  payment  of  its  debts. 

A corporation  invested  with  a power  to  acquire  and  dispose  of 
property  so  general  and  extensive  as  that  contained  in  the  section 
which  has  been  quoted,  can  onty  be  limited  in  regard  to  the  pur- 
poses for  which  the  property  is  acquired  or  disposed  of  or  from  the 
nature  of  the  property.  It  is -stated  in  the  elemental  works  that 
the  mere  grant  to  be  a bod}’  corporate  would  give,  in  the  absence 
of  any  restrictions,  the  power  to  acquire  and  dispose  of  property 
(Grant  on  Corporations,  4).  Some  restriction,  however,  is  gen- 
eralty  found  either  in  the  object  of  the  corporation,  or  in  the  nature 
of  the  property.  When  such  a restriction  does  not  appty,  a cor- 
poration may  very  property  be  regarded  as  occupying  the  position 
of  an  individual  owner.  There  would  be  the  same  right  of 
voluntary  alienation,  and  a like  liability  to  involuntar}’  alienation. 
What  the  compan}’  could  convej’,  its  creditors  might  subject. 
. . . . In  this  view  we  must  construe  the  provision  of  the 

statute  that  u the  real  and  personal  property  of  corporations  shall 
be  liable  to  execution  as  other  property.”  — Swan’s  Stat.,  231. 

That  statute  was  not  intended  to  authorize  the  sale  of  any 
property  which,  from  its  nature,  a corporation  could  not  alienate, 
and  which  an  individual  could  not  take  by  purchase  from  a cor- 
poration. It  does  not  extend  to  what  are  denominated  the  franchises 
of  the  corporation.  In  the  case  of  a railroad  corporation,  its  fran- 
chises and  corporate  rights  are  not  alienable,  without  express  au- 
thority of  law.  Nor  do  we  think  the  general  language  of  the  first 
section  of  the  act  of  1848,  which  confers  the  power  to  “ acquire 
and  convey,  at  pleasure,  all  such  real  and  personal  estate  as  may 


Argument  of  Gen.  Butler. 


497 


be  necessary  and  convenient  to  cany  in  effect  the  objects  of  the 
incorporation  ” is  to  be  understood  to  authorize  a railroad  cor- 
poration to  convey  all  the  rights  and  interests  in  property  which  it 
may  acquire.  Like  man}*  'other  general  w*ords,  they  must  be 
“ restrained  unto  the  Jitness  of  the  matter .”  When  power  is  given 
to  acquire  an  interest  in  real  estate  for  the  single  and  exclusive 
purpose  of  the  exercise  of  a franchise,  and  particularly  where  to  ac- 
quire such  interest  there  is  a delegation  of  the  power  of  eminent 
domain , the  interest  cannot  be  separated  from  the  use  to  icliich  alone 
it  can  be  applied,  and  if  the  franchise  cannot  be  conveyed,  neither 
can  the  interest  on  real  estate  with  icliich  it  is  connected.  — Redfield 
on  Railroads,  128.  But  the  principle  does  not  necessarily  apply  to 
things  brought  on  the  land,  in  which  such  a limited  interest  has 
been  acquired.  How  far  these  may  be  alienated  by  the  corpor- 
ation, or  be  subjected  for  its  liabilities,  will  depend  upon  different 
considerations. 

The  corporation  having  acquired  an  interest  in  land  for  the  con- 
struction of  its  road,  in  that  construction  affixes  to  the  land  certain 
things,  — the ‘timber  and  iron  for  the  track,  the  stone  and  timber 
for  bridges  and  culverts.  It  also  erects  depots,  and  structures  for 
a supply  of  water.  The  road  is  not  regarded  as  constructed  and 
prepared  for  use  until  such  things  are  affixed.  But  when  the  road 
is  thus  constructed  and  ready  for  use,  other  things  are  requisite  for 
that  use,  — locomotives,  cars,  and  other  articles  and  materials, 
some  of  which  are  consumed  in  the  use,  and  the  supply  has  to  be 
from  time  to  time  renewed.  Now,  we  think  there  is  a manifest 
distinction  between  the  road  as  constructed  for  use,  and  the  various 
things  employed  in  that  use  ; and  that  the  latter  cannot,  with  pro- 
priety, be  regarded  as  constituting  a part  of  the  real  estate,  but  are 
the  personal  property  of  the  corporation. 

. . . . But  we  have  no  hesitation  in  coming  to  the  con- 

clusion that  what  we  have  described  as  the  personal  property  of 
the  corporation  employed  in  the  use  of  its  road  and  franchise,  is 
liable  for  the  payment  of  its  debts.  We  think  the  line  can  be 
clearly  drawn  between  the  interest  in  real  estate,  and  the  franchise 
connected  therewith,  and  the  movable  things  employed  in  the  use 
of  the  franchise. 

The  distinction  appears  to  us  to  be  as  plain  as  that  between  a 
farm  and  the  implements  and  stock  which  the  proper  use  of  the 
farm  necessarily  requires.  Also  the  example  of  a ferry  franc- 
hise. .... 

Considerations  of  public  policy  and  convenience  have  been 
passed  upon  our  attention  in  connection  with  the  question  under 
examination.  It  may  be  true  that  a railroad  corporation  holds  its 
property,  in  a certain  sense,  as  a public  trust  — to  answer  the  pur- 
poses of  a public  highway,  the  transportation  of  persons  and  prop- 
erty. But  it  is  consistent  with  that  public  trust  to  contract  obliga- 
tions. Indeed  the  very  exercise  of  the  trust  necessarily  involves 
obligations  to  individuals,  and  to  meet  these  obligations,  the 
property  of  the  corporation  must  in  some  form  be  liable.  The 
question  is,  in  what  form?  Shall  it  be  in  the  ordinary  legal  form 
applicable  to  the  property  of  individuals,  or  shall  peculiar  rules 


498 


Argument  of  Gen.  Butler. 


be  introduced,  which  ma}’  have  the  effect  to  delay  creditors,  and 
operate  as  a shield  to  protect  propert}'  from  their  just  demands? 

We  have  been  told  that  the  the  sequestration  of  the  tolls  of  a 
turnpike  compan}'  furnishes  an  analogy  which  may  be  properly  fol- 
lowed. It  is  necessaiy  to  guard  against  a very  common  error,  an 
acting  or  that  which  affords  an  argument  by  analogy,  as  if  the 
resemblance  in  some  particulars  constituted  an  identy  in  all.  . . 

The  order  of  our  inquiry  next  calls  for  an  examination  into  the 
nature  and  character  of  the  franchises  of  the  corporation.  It  has 
been  said,  “ the  essence  of  a corporation  consists  in  a capacity,  — 
first,  to  have  perpetual  succession  under  a special  name,  and  in 
an  artificial  form ; second,  to  take  and  grant  property,  contract 
obligations,  sue  and  be  sued  b}T  its  corporate  name,  as  an  individ- 
ual ; and  third,  to  receive  and  enjoy,  in  common,  grants  of  priv- 
ileges and  immunities.” — Thomas  vs.  Dakin,  22  Wend.,  71.  Each 
of  these  applies  to  the  corporation  under  consideration.  Under 
the  two  first  is  described  what  may  be  termed  the  franchise  of  the 
corporators  or  individual  members  of  the  corporation,  and  under 
the  last,  what  may  be  termed  the  franchises  of  the  corporation  ; 
and  “ a corporation,  being  itself  a franchise,  ma}T  hold  other  fran- 
chises, as  rights  and  franchises  of  the  corporation.”  Pierce  vs. 
Emerj,  32  N,  H.,  484. 

the  act  incorporating  the  C.  P.  and  I.  Railroad  Company, 
certain  persons  named  as  corporators,  their  associates,  successors 
and  assigns,  became  a body  corporate.  This  was  the  franchise  of 
the  corporators.  By  the  same  act,  or  the  general  law  to  which  it 
referred,  this  body  corporate  received  the  franchise  of  construct- 
ing and  maintaining  a railroad.  It  may  well  be,  that,  for  the  pur- 
pose of  va  judicial  proceeding  to  declare  a dissolution  of  the  cor- 
poration, these  two  franchises  may  be  regarded  as  indivisible. 
And  in  this  view  it  was  said,  “ That  the  franchise  of  being  a 
corporation  for  one  general  purpose  as  to  erect  and  make  profit 
from  a turnpike,  to  bank,  insure,  or  the  like,  comes  within  the 
doctrine  w’hich  denies  that  a franchise  is  divisible,  would  seem  to  be 
quite  plain.”  — Cowen,  J.,  in  the  People  vs.  B.  and  R.  Turnpike 
Co.,  23  Wend.,  223.  Indeed,  it  cannot  be  regarded  as  unreason- 
able to  hold,  that  the  capacity  to  receive  and  enjoy  the  franchise 
of  constructing  a railroad,  and  making  profit  therefrom,  being  the 
only  object  and  purpose  of  the  grant  of  a capacity  to  be  a corpor- 
ation (?)  when  the  former  is  lost,  it  should  be  adjudged  a dissolu- 
tion of  the  corporation.  But  the  reason  upon  which  the  indivisi- 
bility of  a franchise  proceeds,  when  a question  of  forfeiture 
arises,  ma}T  not  apply  in  other  cases.  It  has  no  application,  when 
the  question  is  as  to  the  construction  of  an  authority  to  dispose  of 
the  franchise  which  belongs  to  the  corporation,  as  distinguished 
from  that  which  appertains  to  the  individual  members. 

if  the  corporation  is  authorized  to  dispose  of  the  franchise  to 
maintain  and  make  profit  from  a railroad,  while  a capacity  to  take 
from  it  this  franchise,  and  the  right  to  maintain  the  railroad  and 
make  profit  from  its  use,  as  such,  would  necessaril}*  be  given  to 
the  party  to  whom  it  might  be  disposed  of  under  the  authority,  it 
would  by  no  means  follow,  that  the  further  capacity  to  be  a corpo- 


Argument  of  Gen.  Butler. 


499 


ration  woifld  be  conferred.  The  right  to  take  the  road,  with  the 
franchise  of  making  profit  from  its  use,  might  be  implied  from  the 
authority  to  dispose,  but  the  implication  would  be  extended  no 
further  than  was  necessary.  And  here  it  may  be  observed,  that 
after  an  act  of  disposition,  which  separates  the  franchise  to  main- 
tain a railroad  and  make  profit  from  its  use,  from  the  franchise  of 
being  a corporation,  though  a judgment  of  dissolution  may  be 
authorized,  yet,  until  there  be  such  judgment,  the  rights  of  the 
corporators,  and  of  third  persons,  may  require  that  the  corpora- 
tion be  considered  as  still  existing.  When  that  judgment  is  had, 
those  rights  would  be  protected. 

These  views  are  strengthened  by  the  consideration  that,  as  to 
the  transfer  of  the  one  franchise,  there  is  a consistency  and  pro- 
priety arising  from  its  nature  and  character,  that  does  not  apply 
to  the  other.  This  distinction  has  been  clearly  pointed  out  in  a 
recent  case,  in  which  it  is  said,  “ Among  the  franchises  of  the 
company  is  that  of  being  a body  politic  with  rights  of  succession 
of  members  and  of  acquiring,  holding  and  conveying  property, 
and  suing  and'  being  sued  b}’  a certain  name.  Such  an  artificial 
being  only  the  law  can  create  ; and  when  created,  it  cannot  trans- 
fer its  own  existence  into  another  body,  nor  can  it  enable  natural 
persons  to  act  in  its  name,  save  as  its  agents,  or  as  members  of 
the  corporation,  acting  in  conformit}^  with  the  modes  required  or 
allowed  by  its  charter.  The  franchise  to  be  a corporation  is, 
therefore,  not  a subject  of  sale  or  transfer,  unless  the  law,  by  some 
positive  provision,  has  made  it  so,  and  pointed  out  the  modes  in 
which  such  sale  and  transfer  may  be  effected.  But  the  franchise 
to  build  and  own  and  manage  a railroad  and  to  take  tolls  thereon, 
are  not  necessarity  corporate  rights  ; they  are  capable  of  existing 
in  and  being  enjoyed  by  natural  persons  ; and  there  is  nothing  in 
their  nature  inconsistent  with  their  being  assignable.”  — Hall  vs. 
Sullivan,  Railroad  Co.,  22  Law  Rep.,  138,  Curtis  J.  Veiy  similar 
language  is  used  in  a recent  case  in  Vermont.  Bank  of  Middle- 
bury  vs.  Edgerton,  30  Verm.,  182. 

In  this  connection  it  is  proper  to  notice  a power  delegated  to 
railroad  corporations,  — that  of  taking  land  for  the  use  of  the  road 
by  judicial  proceeding  instituted  for  the  purpose.  This  proceeding 
is  regulated  b}^  a general  law,  and  can  only  be  instituted  by  a cor- 
poration, there  being  no  provision  for  a recourse  to  it  by  a private 
individual.  This  circumstance  has  been  pressed  as  one  having  an 
important  bearing  on  several  of  the  questions  in  this  case.  The 
right  to  institute  such  a proceeding  can  in  no  proper  sense  be 
regarded  as  a franchise  of  the  corporation.  It  is  rather  a means 
to  secure  the  enjoyment  of  the  franchise  granted,  a resort  to  which 
may  become  necessary.  It  us u all}’  is  necessaiy  to  accomplish  the 
object  intended,  and  undoubtedly  the  faith  of  the  legislature  may 
be  regarded  as  pledged  that  some  proper  mode  will  be  provided  for 
the  accomplishment  of  that  object.  But  until  the  prescribed  mode 
has  been  adopted  and  the  land  obtained,  that  which  is  to  be  done 
b}r  the  legislature  or  the  tribunals  acting  under  its  authority  can 
only  be  regarded  as  executory.  There  is  no  franchise,  no  grant 
or  contract  executed,  such  as  a franchise  has  been  held  to  be. 


500 


Argument  of  Gen.  Butler. 


When  by  a resort  to  the  mode  authorized  by  law  the  interest  in 
the  land  has  been  obtained,  then  the  power  is  executed,  and  the 
enjo^yment  of  the  franchise  to  that  extent  secured. 

There  is  nothing  in  the  nature  of  such  power  which  forbids  its 
exercise  b}7  an  individual  when  delegated  for  a purpose  of  a public 
nature.  Instances  of  its  exercise  by  individuals,  under  the  law  of 
England  and  of  some  of  the  States,  are  well  known.  We  need 
only  mention  the  proceeding  by  a writ  of  ad  quod  damnum , to  con- 
demn land  for  the  purpose  of  a mill.  If,  then,  in  any  disposition 
of  a railroad,  and  the  franchise  of  making  profit  from  its  use, 
authorized  by  law,  the  ownership  and  control  should  pass  into  the 
hands  of  individual  owners,  and  for  any  purpose  of  construction 
or  change  of  location  a resort  to  such  a power  becomes  essential, 
such  individual  owners  may  safely  look  to  the  Legislature  for  an 
extension  of  the  provisions  of  the  general  law.  They  might  justly 
say  that  if  they  were  authorized  by  law  to  acquire  the  road  and  the 
franchise  of  operating  it  for  their  own  benefit  and  for  public  use, 
the  legislature  would  be  bound  in  good  faith  to  afford  the  usual 
and  necessary  means  to  render  the  grant  made  under  its  authority 
effectual  for  the  purpose  intended.  In  this  respect  they  would 
stand,  in  point  of  legal  right,  upon  like  footing  as  the  original 
constructors  of  the  road  ; neither  having  strictly  the  right  which, 
as  against  the  action  of  the  legislature,  could  be  enforced,  — one 
relying  upon  the  faith  of  the  legislature  that  the  mode  existing 
would  be  continued,  and  the  other  that  a proper  mode  would  be 
adopted.  We  certainly  cannot  hold  that  such  a delegation  of  the 
power  of  eminent  domain  can  he  made  the  subject  of  grant  or  of  sale. 
But  we  do  not  regard  this  as  any  objection  to  the  transfer  to  indi- 
vidual owners  of  the  franchise  of  maintaining  and  operating  a 
railroad,  if  it  otherwise  appears  to  be  authorized  by  the  legis- 
lature  

From  what  has  been  said  before  it  obviousl}7  results  that,  as  to 
the  real  estate  levied  upon,  the  same  being  part  of  the  railroad,  the 
lien  of  the  legal  mortgages  would  prevail  over  the  claim  of  the 
creditor.  His  right  to  levy  on  a part  of  the  railroad  or  on  the 
real  estate  held  for  the  use  of  the  franchise  of  the  corporation  has 
not  been  pressed  in  argument.  We  have  already  intimated  that 
as  to  an  interest  in  real  estate  held  for  the  sole  and  exclusive  pur- 
pose of  the  exercise  of  a franchise,  it  could  not  be  alienated  by 
the  corporation,  and  of  course  would  not  be  liable  to  execution. 

In  Inhabitants  of  Worcester  vs.  The  Western  Railroad  Cor- 
poration. 

Shaw,  C.  J.  In  a petition  to  this  court  for  a writ  a certiorari  to 
the  County  Commissioners,  the  inhabitants  of  Worcester  set  forth 
that  they  are  aggrieved  b}7  the  doings  of  the  commissioners,  and 
pray  redress.  The  petition  states  that  the  Western  Railroad  Cor- 
poration have  erected  and  are  the  owners  of  several  valuable  build- 
ings situated  in  the  town  of  Worcester,  to  wit : a house  for  a 
passenger  depot,  a freight-house,  a car-house  and  an  engine-house, 
and  that  said  buildings  stand  partl}T  within  and  parti}7  without  the 
line  of  the  railroad  location  ; that  in  the  year  1841  the  corporation, 
being  owners  and  occupants  of  the  said  buildings,  the  same  were 


Argument  of  Gen.  Butler. 


501 


taxed  by  the  assessors  of  Worcester  their  due  proportion,  with 
other  real  estate,  to  the  town  and  county  taxes.  Upon  an  appeal 
to  the  County  Commissioners  they  abated  all  that  part  of  said  tax 
which  was  assessed  upon  buildings  lying  within  the  limits  of  the 
location  of  the  road,  and  that  they  confirmed  the  tax  upon  the 
buildings  or  such  part  of  the  buildings  as  lay  without  the  limits  of 
such  location.  The  complaint  of  the  inhabitants  of  Worcester  is 
that  no  abatement  ought  to  have  been  made ; that  they  had  a right 
to  tax  said  corporation  for  real  estate,  such  as  depots  for  passen- 
gers or  merchandise  and  buildings  used  for  car  and  engine  houses, 
although  they  lie  in  whole  or  in  part  within  the  limits  of  the  loca- 
tion of  the  railroad,  and  although  used  for  purposes  incident  to 
the  business  of  the  corporation  as  carriers  of  passengers  and  car- 
riers of  freight.  Their  claim  is  that  although  the  mere  franchise 
or  right  of  way  along  the  strip  of  land  appropriated  to  the  track  of 
the  railroad  may  be  exempted  from  taxation,  yet  that  the  real 
estate,  consisting  of  buildings  and  other  structures  connected  with 
it,  is  not  entitled  to  the  same  exemption. 

This  is  a question  of  great  importance  in  its  bearing  upon  the 
rights  and  interests  of  this  class  of  corporations.  To  determine  it 
properly,  it  becomes  necessary  to  consider  the  nature  and  pur- 
poses of  these  corporations,  the  franchises  granted  to  them,  the 
duties  required  of  them,  and  the  objects  they  were  intended  to 
accomplish.  These  are  to  be  sought  in  the  particular  act  of  incor- 
poration, and  in  the  general  provisions  of  law  applicable  to  them. 
By  the  act  of  incorporation  the  persons  named,  etc.,  are  made  a cor- 
poration to  lay  out  and  construct  the  railroad  described  ; authorized 
to  lay  out  their  road  five  rods  wide,  through  the  whole  length,  and 
for  the  purpose  of  cuttings  and  embankments,  and  procuring  stone 
and  gravel,  to  take  as  much  more  land  as  might  be  necessary  for 
the  proper  construction  and  security  of  said  road ; with  a proviso 
stipulating  for  the  payment  of  damages  for  private  property  thus 
taken.  By  section  3,  the  president  and  directors  are  authorized  to 
provide  for  the  transportation  of  persons,  goods  and  merchandise, 
etc. ; to  purchase  and  hold  land,  materials,  engines,  cars  and 
other  necessary  things  for  the  use  of  said  road  and  for  the  trans- 
portation of  persons,  goods  and  merchandise Prom 

this  view  of  the  various  provisions  of  the  law  by  which  the  rights 
and  duties  of  the  Western  Railroad  Corporation  are  regulated,  it 
is  manifest  that  the  establishment  of  that  great  thoroughfare  is 
regarded  as  a public  work,  established  by  public  authority , intended 
for  the  public  use  and  benefit , the  use  of  which  is  secured  to  the  whole 
community , and  constitutes,  therefore,  like  a canal,  turnpike  or 
highway,  a public  easement.  The  only  principle  on  which  the 
legislature  could  have  authorized  the  taking  of  private  property 
for  its  construction,  without  the  owner’s  consent,  is,  that  it  was 
for  a public  use.  Such  has  been  held  to  be  the  character  of  a 
turnpike  corporation,  although  there  the  capital  is  advanced  by 
the  shareholders  and  the  income  goes  to  their  benefit.  Common- 
wealth vs.  Wilkinson,  16  Pick.,  175.  It  is  true  that  the  real  and 
personal  property  necessary  to  the  establishment  and  management  of 
the  railroad  is  vested  in  the  corporation ; but  it  is  in  trust  for  the 


502 


Argument  of  Hon.  J.  G.  Abbott. 


public.  The  company  have  not  the  general  potcer  of  disposal  incident 
to  the  absolute  right  of  property ; they  are  obliged  to  use  it  in  a par- 
ticular manner  and  for  the  accomplishment  of  a well-defined  object. 

Treating  the  railroad,  then,  as  a public  easement,  the  works 
erected  by  the  corporation  as  public  works  intended  for  public 
use,  we  consider  it  well  established  that,  to  some  extent  at  least, 
the  works  necessarily  incident  to  such  public  easement  are  public 
works,  and  as  such  exempted  from  taxation.  Such,  we  believe, 
has  been  the  uniform  practice  in  regard  to  bridges,  turnpikes  and 
highways,  and  their  incidents. 

The  general  principle  is  not  denied  in  the  present  case,  but  the 
question  is,  as  to  the  extent,  etc The  transporta- 

tion of  persons,  goods  and  merchandise,  is  the  object  to  be  accom- 
plished ; and  for  this  purpose  they  may  hold  lands,  materials, 
engines,  cars  and  other  things.  Articles  so  held  are  appropriated 
to  public  use  as  incident  and  necessary  to  the  object  to  be  accom- 
plished. 


CLOSING  ARGUMENT  OF  HON.  J.  G.  ABBOTT 
FOR  THE  PETITIONERS. 

May  it  please  your  Honors,  — A variety  of  objections 
have  been  made  against  the  right  of  the  two  parties  that  I 
represent  here  — Mr.  Faulkner  and  the  Talbots  — to  recover 
in  this  case,  objections  growing  out  of  the  title  which  they 
have  put  in  before  your  Honors,  — growing  out  of  the  fact 
that  both  these  parties  claim  originally  under  the  proprietors 
of  the  Middlesex  Canal.  I believe  almost  all  these  questions 
have  been  argued  before  you,  with  possibly  the  exception  of 
one  of  them,  and  I shall  not  take  up  so  much  of  your  time 
and  attention  with  reference  to  them  as  I should  have 
done  if  they  had  not  been  gone  into  fully  previous  to  this 
point  of  time.  One  matter,  however,  I want  to  suggest  to 
you  at  the  commencement.  Independent  of  any  title  from 
the  Middlesex  Canal,  we  show  possession  of  this  property  — 
and,  Mr.  Chairman,  I propose  rather  to  indicate  the  argu- 
ments here  than  to  follow  them  out  and  enlarge  upon  them 
— we  show  possession  of  this  property  since  1851  on  the 
part  of  Mr.  Talbot,  since  1857  under  deed  from  Mr.  Talbot, 
and  long  previous  to  that  deed  by  Mr.  Faulkner  and  those 
under  whom  Mr.  Faulkner  claims,  not  the  Middlesex  Canal. 

Now  I claim  — and  I desire  you,  Mr.  Chairman,  as  the 
legal  part  of  the  commission,  to  pass  upon  it  — I claim,  as  a 
matter  of  law,  that  that  possession  is  a perfect  title  as  against 


Argument  of  Hon.  J.  G.  Abbott. 


503 


the  City  of  Boston,  or  as  against  anybody  who  does  not 
come  in  here  and  claim  under  a better  title  than  that  posses- 
sion on  the  part  of  my  clients.  And  I claim,  as  the  law  in  this 
case , that  nothing  more  was  necessary  for  me  to  prove . I could 
have  stopped  there,  and  there  has  nothing  been  put  in  upon 
the  other  side  that  would  call  upon  me  in  any  way  to  meet  it, 
no  more  than  to  show  a possession,  a claim  of  ownership, 
such  possession  as  amounts  to  claim  of  ownership  on  the 
part  of  the  Talbots  and  Faulkners  in  these  two  cases,  and 
there  leave  them,  so  far  as  right  to  recover  was  con- 
cerned, because  the  City  of  Boston  have  failed  to  show  any 
connection  with  anybody  claiming  a superior  title  to  that 
title  by  possession.  And  I think  that  would  be  a sufficient 
answer  to  start  with,  and  all  I desire  is  that  you  should  con- 
sider it  in  passing  upon  this  case. 

But  I am  entirely  ready  to  meet  the  suggestions  made  by 
my  friend  on  the  other  side  in  reference  to  the  title  that  we  do 
claim  under.  It  seems,  and  it  has  been  proved  to  you,  that 
in  seventeen  hundred  and  ninety  odd  the  original  charter 
was  granted  to  the  proprietors  of  the  Middlesex  Canal  in  the 
form  then  used,  because  I find  this  almost  exactly  in  the 
form  of  that  granted  to  the  proprietors  of  locks  and  Canals 
on  the  Merrimack  river,  and  the  same  phraseology  used  with 
reference  to  the  right  to  convey  real  estate.  The  right 
in  that  charter  is  given  to  the  Middlesex  Canal  to  hold 
for  themselves  and  successors  forever  certain  real  estate 
deeded  under  that  act.  By  subsequent  act  they  are  autho- 
rized to  buy  and  hold  thirty  thousand  pounds  more  in  real 
estate  ; and  by  a still  subsequent  act,  in  order  to  make  certain 
what  their  rights  are,  it  is  enacted  that  the  proprietors 
of  the  canal,  in  their  corporate  capacity,  shall  be  empowered 
to  purchase  any  mill-seats  on  waters  connected  with  the 
canal,  or  any  lands  to  accommodate  the  same,  and  thereon 
to  erect  mills.  That  is  after  having  a right  to  hold 
lands  up  to  five  thousand  pounds,  and  then  by  a sub- 
sequent act  to  hold  them  up  to  thirty  thousand  pounds, 
an  explanatory  act  is  passed  and  a new  grant  made,  giving 
them  authority  to  purchase  and  hold  any  mill-seats  on  waters 
connected  with  the  canal  and  lands  to  accommodate  the 
same,  and  thereon  to  erect  mills.  Now,  under  this  act  the 
Middlesex  Canal  purchased  of  Thomas  Richardson,  who 
claimed  under  the  grant  from  the  town  of  Billerica  a certain 
mill  privilege,  with  the  lands  upon  which  the  mills  are  situ- 
ated. By  looking  at  that  deed,  sir,  you  will  find  that  it 
covers  forty  acres  of  land  on  the  west  side  of  the  stream  — 
that  is,  where  Mr.  Talbot’s  mills  now  are  — and  a small 
tract  on  the  east  side  where  the  head  of  the  dam  on  the  east 


504 


Argument  of  Hon.  J.  G.  Abbott. 


side  abuts  upon  the  shore  at  that  place.  So  that  you  find  the 
Middlesex  Canal  purchasing  under  this  provision,  that  they 
may  purchase  mill-sites  on  any  stream. 

Mr.  Butler.  On  any , brother? 

Mr.  Abbott.  They  purchased  it,  and  then  the  act  came 
in  afterwards  and  ratified  that  purchase.  They  have  the  right 
to  purchase  and  to  hold  lands  and  mill-sites  on  streams  con- 
nected with  the  canal,  and  to  erect  thereon  and  run  mills  ; so 
that  you  have  this  provision, — in  addition  to  the  rights  to  build 
and  make  a canal  for  the  purposes  of  navigation, — you  have 
the  right  given  to  them  to  purchase  and  hold  mill-sites  and 
land  necessary  for  the  purpose  of  building  mills  on  streams 
connected  with  the  canal.  Under  that  act,  and  by  virtue  of 
that  act  undoubtedly  (for  it  was  passed  for  the  purpose  of 
defining  their  rights),  they  held  the  conveyance  of  land, 
which  was  made  to  them  by  Thomas  Richardson,  of  this 
mill-site  which  was  created  by  the  town  of  Billerica,  1708, 
three-quarters  of  a century  previous  to  that  point  of  time, — 
they  held  this  property  until  1851,  using  it,  as  it  appears 
here,  for  the  purposes  of  a mill-site  and  running  mills,  hav- 
ing sold  to  the  Faulkners  and  to  Mears  certain  rights,  always 
subordinate  to  the  right  of  using  the  water,  or  the  necessity 
of  using  the  water,  for  the  purposes  of  navigation.  They 
held  this  property,  I say,  under  this  deed,  until  1851,  when 
they  sell  the  property  to  Mr.  Talbot  and  his  brother,  who 
appear  here  and  are  petitioners,  subject,  in  the  first  place,  to 
the  reservation  of  all  rights  that  may  be  necessary  for  the 
purpose  of  keeping  up  the  canal  as  long  as  the  canal  is  in 
use,  and  then  upon  a further  condition  that  the  grantees  in 
that  deed  shall  not  draw  the  water  below  a certain  point, 
after  notice  given  them,  until  the  canal  is  discontinued.  In 
fact,  as  it  appears,  at  that  time,  at  the  time  that  the  deed  was 
made  the  canal  had  been  discontinued,  — I say  in  fact,  in 
contradistinction  from  legal  discontinuance.  It  had  been 
partially  filled  up,  so  that  it  was  no  longer  in  use,  and  the 
proprietors  undertook  to  sell  certain  lands  and  certain  mill- 
sites  which  they  had  acquired,  as  I have  called  your  atten- 
tion to  before,  under  this  third  addition  to  their  act  of  incor- 
poration and  their  right  to  hold  mills,  — sold  them  to  Mr. 
Talbot,  subject  to  the  right,  as  against  him,  of  using  all  the 
water  that  might  be  necessary  for  carrying  out  and  exercis- 
ing the  franchise  of  keeping  up  a canal  for  purposes  of  navi- 
gation, so  that  it  does  not  raise  the  question  here  of  their 
attempting  to  sell  any  part  of  the  franchise  of  the  corpora- 
tion, that  is,  any  part  of  that  land  or  that  property  which 
was  clothed  with  the  franchise  of  the  corporation,  so  that 
they  should  be  no  longer  able  to  carry  out  and  discharge  the 


Argument  of  Hon.  J.  G.  Abbott. 


505 


duties  that  were  obligatory  upon  them  as  holders  of  that 
public  franchise. 

Mr.  Butler.  They  sold  the  canal,  didn’t  they? 

Mr.  Abbott.  They  sold  certain  lands,  certain  water- 
rights,  certain  mill-privileges,  subject  at  all  times  to  the 
reservation  and  the  condition  that  they  should  reserve  all 
the  water,  and  the  right  to  use  all  parts  of  the  land  necessary 
for  the  purpose  of  carrying  out  this  public  purpose  and  pub- 
lic object,  to  wit : undertaking  to  run  that  canal.  They  did 
not  undertake  to  sell,  — as  against  their  obligations  and  in 
the  face  of  their  obligations  — they  did  not  undertake  to  sell 
the  land  or  the  water-rights,  so  that  they  should  no  longer 
be  able  to  discharge  their  obligations  to  the  public.  On  the 
contrary,  they  only  sold  what  they  had,  subject  to  this  obli- 
gation which  was  imposed  on  them  by  the  franchise.  They 
did  not  undertake  to  sell  anything  else.  They  sold  that 
which  was  not  necessary,  and  could  not  be  necessary  by  their 
express  reservation,  for  the  purpose  of  discharging  their 
duties  to  the  public  under  this  franchise  which  had  been 
granted  to  them,  — not  the  selling  out  of  the  franchise  of  the 
corporation  or  the  property  of  the  corporation,  — so  that  it 
would  be  impossible  to  discharge  the  duties  imposed  upon 
them  by  that  franchise,  because  that  would  raise  a different 
question;  but  selling  it  out,  Mr.  Chairman,  subject  to  the 
condition  that  at  all  times  the  right  under  this  grant  to  build, 
run,  and  operate  a canal  should  remain  : I say  this  grant  was 
made  subject  to  that  right ; and  that  right  was  above  and 
beyond  the  right  of  the  Talbots,  so  long  as  that  right  should 
exist,  and  no  longer. 

Upon  this  very  point,  of  whether  they  had  the  right  to  sell 
that  which  they  did  sell  (not  to  undertake  to  sell  their  fran- 
chise, or  any  part  of  it,  or  any  part  of  their  property  which 
prevented  them  from  acting  under  and  discharging  all  the 
duties  and  obligations  imposed  upon  them  by  that  fran- 
chise) — upon  this  point,  in  this  very  case  of  Heard  vs.  Tal- 
bot, I would  like  to  have  you,  your  Honors,  look  at  the 
reference  which  I shall  make.  Look  at  it  for  a moment. 
This  deed  was  before  the  Supreme  Court  at  that  time.  The 
charter  was  not  forfeited  in  any  way  whatever.  There  was 
no  claim  at  that  time,  that  the  charter  was  not  in  full  force. 
Why,  if  the  position  taken  by  the  city  was  a right  one, 
the  first  answer  would  have  been,  " What  are  you  keeping 
up  this  nuisance  against  me  for  ? So  far  as  you  are  concerned, 
you  are  undertaking  to  keep  up  the  dam,  and  you  have  no 
rights,  because  the  Middlesex  Canal  could  convey  you  noth- 
ing. They  had  nothing  to  convey,  and  could  convey  you 
nothing.”  On  the  contrary,  this  deed  has  been  sanctioned 


506 


Argument  of  Hon.  J.  G.  Abbott. 


by  this  decision  of  the  Supreme  Court,  because  they  say 
that  the  Talbots,  claiming  under  a deed  from  the  Middlesex 
Canal,  have  a right  to  set  up  the  franchise  and  rights  of  that 
Canal ; that  the  deed  is  not  void,  but  " having  been  made  by 
the  Middlesex  Canal,  the  grantees  have  a right  to  go  farther 
and  set  up  the  franchise  which  they  did  not  purchase,  and 
avail  themselves  of  it  so  long  as  that  franchise  exists.”  How 
could  you  have  a better  judicial  determination  of  the  validity 
of  this  deed  so  far  as  the  Talbots  were  concerned,  than  that 
very  decision  ? because  the  Court  not  only  say  that  the  deed 
passes  what  it  claims  to  pass,  but,  further  than  that,  the  gran- 
tees can  set  up  that  very  franchise  granted  to  the  Middlesex 
Canal. 

Now  I understand  that  it  is  claimed  here  that  by  the 
phraseology  used  in  that  act  there  is  a right  given  to  hold  real 
estate,  and  no  right  to  convey  real  estate.  I mean,  inde- 
pendent of  the  construction  I have  been  calling  your  attention 
to,  that  this  deed  does  not  convey  or  interfere  with  the  public 
franchise  granted  to  the  Middlesex  Canal ; that  by  the  phrase- 
ology of  the  act,  it  is  one  to  hold  and  not  to  convey. 
All  I have  to  say  is,  that  if  you  take  up  one  of  the  volumes 
of  Special  Laws,  where  you  have  a great  many  corporations, 
you  will  find  that  always  the  grant  is,  in  creating  a cor- 
poration, of  a right  to  hold  real  estate  of  such  and  such 
value,  for  the  purposes  of  the  corporation;  and  I don’t  be- 
lieve you  will  find  in  any  of  them  any  power  to  sell.  It  is 
merely  a right  to  hold.  And  who  ever  heard  before,  unless 
there  was  a restriction  or  something  imposed  directly  upon 
the  right  to  hold,  — who  ever  heard  before  that  the  right  to 
hold  the  absolute  and  full  title  would  not  carry  with  it  the  right 
to  sell  that  full  title?  And,  sir,  if  that  phraseology  does  not 
convey  that  right  to  four-fifths  of  all  the  corporations  created 
in  Massachusetts,  why,  then,  with  the  right  to  hold  they  have 
not  the  slightest  right  whatever  to  sell.  It  is  like  the  case 
of  conveyanance  to  a natural  person.  We  have  the  Rich- 
ardsons’ deed,  which  is  all-important  in  carrying  the  water 
and  water-rights.  The  mill-site  runs  to  us  and  our  " succes- 
sors forever,”  precisely  as  a deed  conveying  a fee  would  have 
been  to  you  and  your  "heirs,”  without  putting  in  "assigns.” 
It  is  a conveyance  of  the  fee ; and  unless  there  are  some 
restrictive  words  which  apply  to  the  case  and  do  not  apply 
generally,  why,  merely  because  it  fails  to  put  in  " assigns,”  — 
merely  because  the  provision  is  made  that  your  " heirs  ” may 
hold,  it  does  not  prevent  you  from  selling  the  land.  Pre- 
cisely, in  an  analagous  case,  this  deed  to  parties  "and  their 
successors,”  or  grant  of  privilege  to  hold  "to  them  and  their 
successors  forever,”  is  exactly  the  same  as  a deed  to  you  of 


Argument  of  Hon.  J.  G.  Abbott. 


507 


land, — to  yourself  and  your  "heirs  forever.”  That  would 
he  giving  you  the  right  to  sell,  beyond  all  peradventure, 
unless  there  was  some  condition  or  restriction  imposed  upon 
the  grant  or  the  right  to  purchase  real  estate. 

But,  then,  Mr.  Chairman,  there  is  another  answer  to  all 
this  matter,  it  seems  to  me,  and  a perfect  one,  in  reference 
to  this  right  to  sell.  It  does  not  lie  in  the  mouth  of  the  City 
of  Boston,  if  the  Middlesex  Canal  had  no  right  to  sell,  if 
they,  as  against  their  stockholders  or  as  against  the  original 
owners  of  the  land  (I  mean  the  persons  who  conveyed  to 
them  who  were  the  original  owners),  had  no  right  to  sell,  it 
does  not  lie  in  the  mouth  of  the  City  of  Boston  to  set  up 
that  claim.  That  is  a claim  which,  when  it  comes  up,  can 
be  dealt  with.  Between  persons  ’claiming  (if  there  are  any 
such  persons)  and  ourselves,  it  is  sufficient  (and  I do  not  mean 
to  trouble  your  Honors  longer  on  this  point)  — it  is  suffi- 
cient that  the  title  to  that  estate  was  in  the  corporation.  The 
corporation  have  undertaken  to  convey  that  title  to  us.  Now, 
if  the  stockholders  of  that  corporation  may  have  any  rights 
in  that  estate,  or  if  the  persons  conveying  to  that  corporation 
may  have  any  rights  in  that  estate,  they  are  not  rights  that 
can  be  availed  of  by  the  City  of  Boston.  It  is  sufficient  that 
we  take  title  directly  from  the  corporation,  they  having  a 
right  to  convey,  and  we  can  hold  that  as  against  the  City  of 
Boston,  so  far  as  this  part  of  the  case  is  concerned,  notwith- 
standing there  may  be  outstanding  rights  on  behalf  of  other 
parties. 

Then  I understand  that  the  more  important  objection  made 
by  my  friend  on  the  other  side,  and  which  he  has  elaborated 
at  greater  length  than  the  other  questions,  is  the  fact  that  the 
charter  of  the  Middlesex  Canal  has  been  forfeited  and  declared 
forfeit  for  a non-user.  Well,  sir,  about  the  facts  in  refer- 
ence to  that  part  of  the  case  there  is  no  question  whatever. 
Long  after  the  deed  made  to  the  Talbots  — ten  years  after 
— a resolution  was  passed  by  the  legislature  in  1859,  di- 
recting the  Attorney-General  to  prosecute  a quo  'warranto 
against  the  Middlesex  Canal,  requiring  them  to  appear  before 
the  Justices  of  the  Supreme  Court  and  say  why  the  charter 
of  the  corporation  should  not  be  adjudged  to  be  forfeit. 
Under  that  resolution  proceedings  were  had,  at  the  April 
Term  of  the  Supreme  Court,  in  which  this  judgment  is  given, 
that  it  is  considered  by  the  Court  that  the  proprietors  of  the 
Middlesex  Canal,  or  any  persons  pretending  to  hold  the 
liberties,  privileges,  and  franchises  of  said  corporation  do  not 
in  any  manner  enjoy  those  liberties  under  and  by  virtue  of 
any  authority  conveyed  by  the  act  of  incorporation,  and  that 
the  said  proprietors  of  the  Middlesex  Canal  be  absolutely 


508 


Argument  of  Hon.  J.  G.  Abbott. 


forejudged  and  excluded  from  having,  holding,  using,  exer- 
cising, or  enjoying  said  franchises,  privileges  and  liberties, 
and  that  the  Commonwealth  recover  costs,  etc.  That  is  fol- 
lowed, in  a subsequent  act  in  1860,  which  is  the  common 
way  of  declaring  the  charter  of  a corporation  forfeit. 

Now,  I want  your  Honors’  attention  to  one  thing  to  start 
with.  These  is  no  attempt  (and  if  the  attempt  had  been 
made  it  necessarily  must  have  been  unsuccessful)  to  affect 
the  rights  of  any  human  being  except  the  proprietors  of  the 
Middlesex  Canal.  Nobody  else  is  a party  to  that  proceeding. 
Nobody  else’s  rights  could  be  affected  in  any  way  by  that 
proceeding.  And  your  Honors  wfill  notice  that  neither  the 
legislature  affect  them,  nor  could  the  court  undertake  to,  in 
their  judgment  of  forfeiture,  nor  the  legislature  when  they 
accept  that  forfeiture.  They  undertake  to  affect  in  no  way  the 
rights  of  third  parties,  for  the  very  obvious  reason  that  third 
parties  were  not  parties  to  that  judgment  in  any  way  what- 
ever and  their  rights  could  not  be  affected  by  it  in  any  way  what- 
ever. Now  what  is  the  effect  of  that  judgment?  My  friend 
claims  that  the  effect  of  that  judgment  (and  here  is  the 
reason  for  the  elaboration  of  the  argument  on  the  other  side 
growing  out  of  this  title,  and  for  the  stress  put  upon  the 
case),  is  this  : That  there  was  a grant  of  certain  privileges, 
liberties  and  franchises  to  the  proprietors  of  the  Middle- 
sex Canal ; that  by  non-user  (for  there  is  no  allegation 
farther  than  that)  — by  non-user  on  the  part  of  that  cor- 
poration, those  privileges,  liberties  and  franchises  became 
liable  to  forfeiture,  and  that  they  were  declared  forfeited  and 
resumed  by  the  Commonwealth,  and  therefore  that  the  Com- 
monwealth not  only  gets  the  liberties,  franchises  and  privi- 
leges granted  by  the  Commoirwealth  to.  the  corporation,  but 
they  get,  in  addition  to  that,  all  the  property  that  the  corpo- 
ration acquired  under  their  charter.  Now,  I undertake  to 
say,  may  it  please  your  Honors,  that  you  cannot  find  any- 
where any  such  result  from  a judgment  of  forfeiture  by  a 
court  having  the  authority  to  declare  the  charter  forfeited. 
The  wmrds  of  the  legislature  accepting  this  declaration  and 
this  judgment  of  forfeiture  on  the  part  of  the  court  are  some- 
what significant. 

Mr.  Butler.  Pardon  me ; you  did  not  read  the  wdiole. 
" It  is  considered  by  the  court  here  that  the  proprietors  of 
the  Middlesex  Canal,  or  any  persons  pretending  to  hold  the 
franchises  and  privileges  of  the  said  corporation,  do  not  in 
any  manner  hold,”  etc. 

It  is  not  only  the  Middlesex  Canal,  but  any  persons  pre- 
tending to  hold  their  franchises. 


Argument  of  Hon.  J.  G.  Abbott. 


509 


Mr.  Abbott.  I read  all  this ; and  it  is  now  only  made 
necessary  that  I read  it  again. 

[Reads  it  again.] 

It  is  the  liberty  to  run  a canal,  — there  is  not  anything 
said  about  mill  privileges. 

And  now  follows  the  judgment.  ” It  is  adjudged  that  the 
proprietors  of  the  Middlesex  Canal” — nobody  else  — "be 
absolutely  forejudged  from  holding  and  using  any  such 
franchises  and  privileges.” 

Then  the  act  following  in  1860  upon  this  judgment  of  the 
Supreme  Court,  after  setting  forth  in  the  preamble  this  judg- 
ment of  the  Supreme  Court,  says,  " It  is  enacted  as  follows  : — 

"All  the  privileges,  liberties  and  franchises  granted  or 
given  by  the  21st  chapter  of  the  acts  of  the  legislature  of  the 
year  one  thousand  seven  hundred  and  ninety-three,  incor- 
porating said  proprietors,  or  by  any  subsequent  acts  in  ad- 
dition thereto,  are  hereby  declared  seized  into  the  hands  of 
the  Commonwealth,  forfeited  and  annulled  in  consequence  of 
the  non-feasance  and  mis-feasance  of  said  corporation,  and 
the  neglect  of  their  corporate  duties,  in  accordance  with  said 
judgment  and  decree.” 

Taking  the  first  resolution,  the  judgment  of  the  Supreme 
Court  and  the  act  following  upon  the  judgment  of  the 
Supreme  Court  accepting  the  forfeiture  of  the  charter,  it 
simply  puts  the  forfeit  in  the  neighborhood  of  Billerica,  in 
reference  to  the  Middlesex  Canal,  precisely  as  if  the  grant 
had  not  been  made.  It  is  simply  annulled  for  the  future. 
They  put  an  end  to  it  for  the  future.  It  does  not  undertake 
to  interfere,  Mr.  Chairman,  with  any  grants  made  by  that 
corporation  before  the  legislature  undertook  to  come  in  and 
accept  this  judgment  of  forfeiture  made  by  the  Supreme 
Court.  Why,  there  is  a case  in  New  York  which  I will 
hand  to  your  Honors,  where  there  was  a conveyance  made 
by  a corporation  after  service  upon  them  by  notice  of  quo 
warranto , which  was  prosecuted  to  forfeiture,  and  still  the 
grant  was  holden  perfectly  good, — the  deed  made  after 
service  of  the  quo  warranto  upon  them,  — under  which  their 
charter  was  subsequently  forfeited,  and  the  deed  was  holden 
good  on  the  ground  that  the  forfeiture  accepted  by  the  leg- 
islature is  of  their  corporate  rights  only. 

Now  the  claim  I make,  Mr.  Chairman,  is  this,  — I address 
you,  Mr.  Chairman,  because  this  is  rather  a matter  of  law 
than  a matter  having  to  do  with  the  other  parts  of  the  case, 
— the  effect  of  this  judgment  of  forfeiture  is  this  : it  does 
not  pass  into  the  hands  of  the  Commonwealth  the  property 
of  that  corporation.  The  judgment  of  forfeiture  by  no 
means  ever  passes  into  the  hands  of  the  Commonwealth  any 


510 


Argument  of  Hon,  J.  G.  Abbott. 


property  of  the  corporation,  even  if  it  should  attempt  to  do 
•it.  What,  then,  does  it  do?  It  annuls  the  grants  made  by 
the  legislature  to  that  corporation.  What  are  those  grants? 
The  first  grant  is  the  franchise  to  be  a corporation.  The 
next  grant  is,  in  this  particular  case,  the  franchise  of  holding 
lands,  and  raising  a head  of  water  for  the  purpose  of  making 
a canal,  and  running  and  using  that  canal  for  the  purposes 
of  navigation.  It  is  not  a grant  of  any  property.  It  is  not 
a grant  of  any  water  or  water-right.  It  is  simply  a grant  of 
a franchise  by  which  it  may  go  and  take  from  others  the 
property  of  others  upon  the  payment  of  damages  to  them, 
and  use  that  property  for  certain  public  purposes,  to  wit, 
in  this  case  maintaining  a canal,  — which  they  could  not  do 
except  for  this  franchise.  Now,  Mr.  Chairman,  — pardon 
me  for  going  a little  more  at  large  into  this  than  I ordinarily 
should  have  done,  because  it  has  been  enlarged  upon  mostly 
through  the  morning  by  my  friend  on  the  other  side,  — the 
grant  by  the  legislature  to  the  corporation  is  of  these  two 
franchises,  not  a grant  of  property.  They  do  not  grant  to 
the  Middlesex  Canal,  and  never  have  granted  to  the  Middle- 
sex Canal,  any  property  or  any  right  of  property.  They 
granted  to  them  the  franchise  of  being  a corporation,  and 
the  franchise  exercising  a right  of  building,  maintaining, 
running,  and  operating  a canal,  and  holding  lands  to  a cer- 
tain extent  for  the  purpose  of  running  mills.  The  franchise 
permitted  them  to  take  property  if  they  could  not  buy  it,  — 
take  it,  and  pay  for  it  in  the  way  pointed  out  in  the  statute. 

Now  when  the  court  in  the  first  place  come  in  and  adjudge 
the  charter  forfeit,  and  then  annul  "all”  the  privileges, 
rights,  and  franchises,  and  declare  forfeited  all  the  privileges, 
rights,  and  franchises  granted  to  that  corporation  by  their 
charter,  or  in  acts  in  addition  to  it,  and  when  the  legislature 
come  in  and  declare  the  franchises,  privileges,  and  rights  of 
the  corporation  seized  to  themselves  and  annulled,  wdi}^  what 
does  it  mean  ? Why  simply  that  they  have  taken  back  as 
forfeited  to  the  Commonwealth,  and  annulled  by  the  Com- 
monwealth, the  privileges,  rights,  and  franchises  which  had 
been  granted  to  these  proprietors,  and  nothing  else ; the 
right  to  be  a corporation  ceased  from  that  time,  the  right  to 
operate  a canal  for  the  purposes  of  navigation,  and  the  right 
to  hold  certain  lands  for  mill  purposes.  But  that  judgment 
did  not  undertake  to  deal  with  — and  if  it  had  undertaken 
to  deal  with  it  it  could  not  have  dealt  with  it  legally  — it 
did  not  undertake  to  deal  with  the  property  that  had  been 
acquired  under  these  franchises  by  the  exercise  of  those 
franchises.  That  property  was  to  be  dealt  with  in  other 
ways.  If  there  were  creditors,  it  would  belong  to  the  cred- 


Argument  of  Hon.  J.  G.  Abbott. 


511 


itors.  It  might,  under  certain  circumstances,  revert.  If 
the  property  had  been  sold  to  others,  it  would  belong  to  the 
persons  to  whom  it  had  been  sold.  So  that  when  my  friend 
undertakes  to  claim  here,  on  account  of  this  forfeiture,  that 
the  Commonwealth  have  once  taken  this  land  for  public  pur- 
poses, or  permitted  the  taking  of  it  for  public  purposes  by 
the  proprietors  of  the  Middlesex  Canal,  and  have  then  come 
in  and  seized  the  franchises  granted  to  them,  — seized  this 
right  to  raise  a head  of  water  on  the  Concord  river,  — or 
that  they  hold  that  and  can  grant  it  to  anybody  else  they 
please,  he  entirely  fails,  for  the  reason  that  the  Common- 
wealth have  undertaken  to  seize  no  water  privileges,  no 
rights  to  keep  up  a head  of  water,  no  property  whatever. 
They  have  only  said  to  these  proprietors,  "We  seize  and 
take  back  from  you  the  franchise  of  being  a corporation  and 
the  franchise  of  running  a canal.  We  do  not  undertake  to 
take  from  you  the  property  you  have  acquired  under  this 
franchise.” 

Why,  sir,  they  have  paid  nothing  for  it.  If  you  will  ex- 
amine carefully  the  Chase  & Sutton  Manufacturing  case,  as 
I have  no  doubt  you  will,  and  as  I have  no  doubt  you  have, 
you  will  find  that  it  is  no  authority  whatever  to  give  the 
Commonwealth,  after  the  forfeiture  of  a charter  by  a canal 
company,  the  right  to  grant  the  property  acquired  under  that 
franchise  to  somebody  else  without  his  paying  for  it.  That 
case  only  goes  to  this  extent.  When  the  Blackstone  Canal 
for  one  public  purpose  under  their  franchise  had  acquired 
property  and  paid  for  it,  that  corporation  might  be  per- 
mitted to  use  it  or  sell  it  for  another  public  purpose  without 
paying  anew  for  it  to  the  persons  whom  they  had  paid  for  it 
once.  But  it  does  not  pretend  or  claim  in  any  shape  what- 
ever the  right  on  the  part  of  the  Commonwealth  to  make 
this  grant  to  a third  party  to  take  and  use  this  property  be- 
cause the  Blackstone  Canal  had  once  taken  and  paid  for  it 
for  the  purposes  of  navigation.  "The  case  does  not  touch 
this  particular  matter  that  we  are  dealing  with  at  this  time. 
It  does  not  reach  or  touch  it  in  any  way  whatever.  I claim, 
therefore,  Mr.  Chairman,  that  so  far  as  the  right  claimed 
here  on  behalf  of  the  City  of  Boston,  that  they  can  take  the 
waters  of  the  Sudbury  river  from  Mr.  Talbot,  who  claims 
them  under  a deed  from  the  Middlesex  Canal,  because  the 
charter  of  the  proprietors  of  the  Middlesex  Canal  was  de- 
clared forfeit  and  was  a right  of  property  of  the  Middlesex 
Canal  taken  back  to  the  Commonwealth,  and  they  could 
grant  it  anew,  fails,  and  fails  because,  in  the  first  place, 
the  Commonwealth  had  no  right  to  do  that,  and  in  the  next 
place  they  didn’t  undertake  to  do  it.  There  is  no  consider- 


512 


Argument  of  Hon.  J.  G.  Abbott. 


ation.  There  is  nothing  paid  by  the  Commonwealth  to  the 
original  owners  of  that  property  for  the  property  taken  and 
appropriated  by  the  proprietors  of  the  Middlesex  Canal. 
There  is  no  consideration  paid  for  it,  and  nothing  ever  came 
into  the  hands  of  the  Commonwealth ; only  they  simply  did 
this  : they  simply  took  back  the  grant  that  they  had  made, 
to  wit,  the  franchise  and  rights  to  do  certain  things  and 
exercise  certain  privileges. 

Mr.  Butler.  And  one  was  the  right  to  keep  up  the 
dam. 

Mr.  Abbott.  I find,  upon  looking  at  the  answer  (I  don’t 
propose  to  enlarge  farther  upon  this  part  of  the  case,  except 
that  when  I come  to  look  at  these  authorities  which  are  to  be 
printed,  I will  furnish  an  answer) , there  is  one  other  objec- 
tion made  to  our  right  to  recover,  and  that  is,  that  we  have 
not  attempted  to  agree  and  failed  to  agree.  The  answer  to 
that  was  made  in  the  Essex  Company’s  case,  and  made  by 
the  citation  of  an  authority  where,  in  substantially  a case  like 
this,  the  court  have  decided  that  the  bringing  of  an  action 
was  sufficient  evidence  that  they  could  not  agree,  and  that  it 
was  not  necessary  to  put  in  evidence,  beyond  the  bringing  of 
the  petition,  that  the  parties  could  not  agree.  I don’t  propose 
to  trouble  you  upon  that  subject  farther,  because  it  seems  to 
me  that,  aside  from  this  authority,  upon  the  reason  of  the 
thing,  the  bringing  of  the  petition  by  one  party  is  the  strongest 
possible  evidence  that  can  be  furnished,  — it  taking  two  par- 
ties to  agree.  It  says  that  the  parties  cannot  and  have  not 
agreed  upon  the  subject  in  reference  to  which  the  petition 
is  brought.  As  I understand  it,  that  is  a matter  which 
has  been  directly  adjudicated  upon.  I do  not  propose  to 
trouble  you  further  upon  it  than  to  say  this  : That,  while 
the  answer  in  this  case  is  full  of  all  manner  of  points,  I 
think  there  is  not  in  any  part  of  the  answer  that  objection, 
"that  the  parties  have  failed  to  agree.” 

Mr.  Butler.  I guess  you  are  mistaken.  I will  bet  a 
thousand  dollars  it  is  there.  It  has  dropped  out  if  it  is 
not. 

Mr.  Abbott.  My  brother  gives  me  a citation  of  the  case 
Bird  vs.  Brigham  and  Bird  vs.  Goddard.  I think  those 
cases  were  cited  to  you  by  Mr.  Merwin,  and  the  statute  was 
given  under  which  they  were  decided,  which  seems  to  be 
identical  with  this  : "If  the  agent  or  agents  employed  by  the 
United  States,  and  the  persons  owning  or  interested  in  such 
estate,  cannot  agree  upon  the  damages  to  be  paid  therefor.” 
In  our  statute  it  is  almost  precisely  the  same,  so  I will  not 
pursue  this  matter  further. 

There  is  another  objection  made  in  the  answer,  that  we, 


Argument  of  Hon.  J.  G.  Abbott. 


513 


that  is,  these  two  parties,  the  Talbots  and  the  Faulkners,  had 
not  joined  in  one  petition.  That  has  not  been  argued  to  you 
by  my  friend  upon  the  other  side,  and  if  he  does  not  intend 
to  insist  upon  it  I should  be  glad  to  know  it. 

Mr.  Butler.  I do.  I have  argued  it  once  before,  and  I 
don’t  think  it  is  necessary  to  insist  upon  it  again.  I argued 
it  in  the  Essex  Company’s  case,  and  when  this  case  began  it 
was  opened  expressly. 

Mr.  Abbott.  I understood  that  he  claimed  it,  but,  as  it 
was  not  argued,  I understood  that  it  was  abandoned.  Well, 
I shall  not  detain  you  long  upon  that  subject.  The  claim  is 
here  that  the  Talbots  and  Faulkners  do  not  join  in  one  peti- 
tion against  the  City  of  Boston,  because  it  is  claimed  that 
between  them  they  own  the  right  to  the  use  of  the  water  in 
Concord  river,  and  that  the  City  of  Boston  should  pay  one 
sum  in  the  gross  for  the  diversion  of  the  water  from  that 
particular  place  where  these  parties  have  the  right  to  use  it. 
I have  no  doubt  that  it  would  be  true  if  Mr.  Talbot  and  his 
brother  and  the  Messrs.  Faulkner  were  joint  owners  in  com- 
mon of  land  and  water  rights,  if  they  were  tenants  in  common 
or  joint  owners  of  that  water-right,  it  might  be  true  that  they 
must  necessarily  commence  their  petition  together  and  all 
join  in  it,  because  they  would  then  be  the  owners  of  the 
property  that  was  alleged  to  be  injured.  One  would  not  be 
the  owner  severally,  but  each  jointly  would  be  the  owner 
of  the  whole.  Of  course,  they  must  join  in  such  a case  as 
that.  But  that  is  not  this  case.  They  own  land  separately 
and  independent  of  each  other.  Mr.  Faulkner  owns  the 
distinct,  separate  and  independent  right,  disconnected  from 
Mr.  Talbot  entirely,  of  using  57^  cubic  feet  of  water  under 
certain  circumstances,  drawing  it  from  the  river  and  using 
it  under  certain  circumstances.  Mr.  Talbot  claims  and  owns 
the  right  to  use  all  the  rest  of  the  water  to  any  extent,  as 
much  as  he  desires,  until  the  water  gets  down  to  a certain 
point,  and  then  he  has  the  right  to  use  a certain  specified 
amount  of  water,  which  is  measured  by  the  size  of  certain 
gates  which  have  been  before  you.  Well  now,  these  two 
rights,  although  they  are  carved  out  of  the  water-power 
which  exists  at  this  point  in  Billerica  mills,  are  entirely  sepa- 
rate and  distinct,  the  one  from  the  other.  There  is  no  joint 
ownership  which  would  entitle  the  city  to  claim  that  the 
petitioners  must  join.  They  are  distinct  and  separate.  The 
damages  may  be  very  large  in  one  case,  and  very  slight  in 
the  other,  depending  upon  the  circumstances  of  the  property 
owned  by  the  two  parties,  and  to  which  these  different  rights 
are  attached.  But  this  matter  has  been  settled,  as  I think, 
substantially  by  authorities,  and  authorities  familiar  to  you, 


514 


Argument  of  Hon.  J.  G.  Abbott. 


Mr.  Chairman,  undoubtedly.  Under  the  original  highway 
act,  going  back,  I think,  previous  to  the  present  century, 
there  was  a provision  that  the  owners  of  land  and  the  owners 
of  buildings  taken  for  a highway  should  be  entitled  to  their 
remedy  before  the  old  Court  of  Sessions.  The  words  used 
are  " owners  of  land  or  owners  of  buildings.”  Well,  the 
question  came  up  in  the  very  first  volumes  of  Massachusetts 
Reports  — I think  in  the  sixth  volume ; I cannot  give  you 
the  page,  but  it  is  the  case  of  somebody  against  Welsh,  I 
think.  I will  give  it  to  you  hereafter.  Welsh  was  the 
lessee  of  certain  lands  and  certain  buildings  which  had  been 
taken  for  laying  out  a street,  and  the  question  came  up 
whether  he  was  entitled  to  maintain  the  process  provided  by 
the  statute  for  the  purpose  of  getting  his  damages,  and  the 
court  held  in  that  case  this  substantially : That  the  term 
" owner  of  the  land  ” or  " owner  of  the  buildings  ” was  large 
enough  to  cover  the  case  of  every  person  who  claimed  an  in- 
terest in  the  land  or  in  the  buildings  ; and  that  the  owner  of 
the  land  and  the  men  who  owned  the  remainder,  after  the 
carving  out  of  a life  estate,  or  an  estate  for  years,  were  both 
entitled  to  remedy  against  the  city  for  the  taking. 

Then,  farther,  in  the  case  of  Parks  against  Boston,  which  is 
in  the  15th  of  Pickering,  the  words  of  the  statute  had  become 
altered  by  that  time,  and  instead  of  the  owners  of  the  land 
being  alone  entitled  to  a remedy,  all  persons  were  entitled  to.it 
who  should  be  damaged  in  their  property.  It  is  almost  word 
for  word  the  expression  used  here  in  this  act.  I think  it  is 
to  the  efiect  that  all  persons  damaged  in  their  property  are 
entitled  to  certain  proceedings, — going  before  the  County 
Commissioners,  and  so  on,  and  getting  a jury.  Parks  was 
the  owner,  I think,  of  the  property.  Paterson  had  a lease 
for  three  or  four  years,  and  each  one  commenced  separate 
proceedings  before  the  court,  and  the  question  came  up, 
whether  under  the  act  providing  that  all  persons  damaged  in 
their  property,  as  in  this  case,  were  entitled  to  remedy, — 
whether  they  were  entitled  to  separate  proceedings,  or 
whether  they  should  join  ; and  the  court  held  that  each  party, 
the  lessee  as  well  as  the  lessor,  was  entitled  to  separate  pro- 
ceedings ; and  that  decision,  I fancy,  was  the  occasion  of  the 
act  being  passed  upon  which  my  friend  seems  to  have  formed 
this  objection  mainly,  — the  act  being  passed  in  reference  to 
highways,  and  also  in  reference  to  railways,  that  you  must 
join  all  parties  having  any  interest  in  the  land,  either  estate 
for  life  or  estate  for  years,  or  any  estate  less  than  the  abso- 
lute fee.  They  may  all  be  compelled  to  join* and  the  verdict 
of  the  jury  shall  be  for  one  gross  sum,  which  is  to  be  divided 
afterwards  between  the  parties,  and  then  the  provision  was 


Argument  of  Hon.  J.  G.  Abbott. 


515 


made  that  the  holder  of  any  other  estate  than  a lease  for  years 
or  for  life  should  join  in  the  remedy,  which  makes  it  a little 
troublesome  at  times.  But  these  provisions  have  not  been 
adopted  in  this  statute,  by  which  the  city  are  entitled  to  take 
land  and  water.  Therefore,  under  this*  statute,  under  which 
the  city  are  entitled  to  take  water-rights  and  land,  under  this 
as  under  the  old  highway  acts,  every  person  who  has  been 
damaged  in  his  property,  although  it  is  a smaller  estate  carved 
out  of  a larger  one,  must  necessarily  be  entitled  to  his  sev- 
eral petition,  and  he  cannot  join,  as  there  is  no  provision 
made  in  the  statute  for  him  to  do  so. 

I believe  now  I have  gone  over  the  objections  made  by  my 
friend  on  the  other  side,  all  of  them,  as  far  as  I recollect ; not 
at  length,  and  perhaps  not  quite  so  much  at  length  as  it 
would  be  well  for  me  to  do,  but  perhaps  at  sufficient  length 
for  the  purposes  of  this  trial.  I believe  I have  alluded 
to  every  one  of  the  objections,  so  far  as  the  matters  of  law 
are  concerned,  with  the  exception  of  one  which  is  applicable 
to  the  damages ; and  while  I am  upon  matters  of  law,  per- 
haps I had  better  take  it  up  here  and  consider  it,  although  it 
is  a matter  which  has  reference  entirely  to  the  quantum  of 
damages ; and  that  is  the  claim  made  by  my  friend  here, 
that  you  are  to  give  damages  for  the  diversion  of  the  natural 
flow  of  the  stream  and  for  nothing  else,  i,  e.,  you  are  to  travel 
back  somewhat. 

If  you  are  to  take  the  natural  flow  of  the  stream,  you  are  by 
no  means  to  go  back  for  half  a century  or  a century,  because 
then  the  stream  had  been  affected  more  or  less  by  artificial 
means.  You  are  to  travel  back  to  the  settlement  of  the 
country  and  ascertain  if  you  can  exactly  what  the  natural 
condition  of  the  stream  was,  and  then  you  are  to  give 
us,  not,  sir,  what  we  have  suffered  by  any  means,  which 
is  the  diversion  of  water  as  it  was  in  1872,  but  you  are 
to  give  us  damages  which  we  should  have  suffered  pro- 
vided the  water  had  been  in  1872  as  it  had  been  two  hundred 
and  odd  years  ago  when  it  was  in  a state  of  nature.  You 
are  really  to  forget  the  fact  that  we  have  had  some  kind  of 
civilization  here  for  the  last  two  hundred  years.  You  are  to 
refuse  to  ascertain  and  say  what  the  damages  were  in  1872, 
when  the  act  Was  done  for  which  we  are  seeking  damages 
from  the  defendant.  You  are  to  go  back  and  say  what  they 
would  have  been  provided  that  had  not  happened  which  has 
happened — provided  we  had  not  been  settled  here  for  two 
hundred  years,  living  upon  the  banks  of  the  river  and  more 
or  less  affecting  the  flow  of  water  in  the  river.  Why,  the 
proposition's  preposterous.  You  cannot  do  it  to  start 
with,  as  the  Chairman  or  some  one  of  your  Honors  had 


516 


Argument  of  Hon.  J.  G.  Abbott. 


occasion  to  say  at  one  time  — and  there  was  no  occasion 
that  you  should  do  it.  But  you  should  be  asked  to  give 
damages  for  that  which  we  had  suffered,  and  not  damages 
for  that  which  we  might  have  suffered  provided  that  had 
not  happened  which  has  taken  place.  Indeed,  gentlemen, 
it  is  forgetting  the  fact  that  the  value  of  all  property  depends 
upon  the  use  of  other  property  by  other  people  in  the  neigh- 
borhood, and  that  you  have  no  legal  right  in  reference  to  any 
property  that  you  own  in  the  world  to  say  that  your  neighbor 
should  use  his  property  in  a certain  way,  or  live  upon  it. 
You  have  no  legal  right  to  compel  him  to  do  it ; and 
still  the  value  of  your  property  to  a very  large  extent,  if 
it  is  taken  from  you,  depends  upon  the  fact  that  your  neigh- 
bor does  use  his  property  in  a certain  way,  and  that  he  will 
in  all  reasonable  probability  continue  to  use  it  in  a certain 
way.  I believe  the  illustration  was  made  by  my  friend  who 
argued  the  first  case,  Mr.  Merwin,  that  the  value  of  every 
foot  of  land  in  Boston  depends  absolutely  or  almost  absolutely 
upon  the  fact  that  other  people  shall  do  certain  things  which 
the  owner  of  the  land  has  not  a particle  of  right  to  compel 
them  to  do  ; and  you  might  with  just  as  much  propriety  say, 
when  the  City  of  Boston  should  take  the  most  valuable  piece 
of  land  on  State  street  for  widening  the  street,  you  should  go 
back  to  its  condition  when  in  a state  of  nature,  and  ascertain 
what  the  value  of  that  land  was  when  Blackstone  first  came 
here  to  the  city  of  Boston,  because  you  could  not  compel 
the  inhabitants  to  live  here,  as  to  say  that  you  shall  not  give 
us  the  damages  for  that  which  was  taken  from  us  ; although 
we  have  no  right,  I grant,  to  compel  the  people  who  have 
built  dams  on  the  stream  above  us  to  keep  them  up. 

But,  aside  from  the  reason  of  the  matter,  I think  there 
are  authorities  which  bear  so  substantially  upon  it  that 
they  settle  the  question.  And  the  first  is  really  a decision 
(half  decision  and  half  dictum)  of  Chief  Justice  Shaw,  from 
the  4th  of  Gray,  Tourtelot  and  Phelps ; and  a dictum  from 
this  jurist  is  equal  to  a decision  from  a great  many  courts. 
I will  only  read  that  portion  which  I specially  refer  to.  It 
is  upon  pages  374  and  375. 

Here  you  have  the  principle  enunciated  by  the  authorita- 
tive  declaration  of  the  late  Chief  Justice. 

In  addition  to  that  I desire  to  refer,  as  bearing  upon  the 
same  matter  and  upon  some  of  these  other  matters  which  I 
have  been  discussing,  to  the  case  of  White  vs.  The  South 
Shore  Railroad,  in  the  5th  of  Cushing,  412.  That  was  this 
case : the  legislature  had  granted  to  White  the  right  to 
build  a dam  upon  a navigable  stream  where  the  tide  ebbed 
and  flowed,  with  the  reservation  and  condition  attached  to 


Argument  of  Hon.  J.  G.  Abbott. 


517 


it,  that  a certain  sluice-way  for  the  passage  of  vessels,  and 
another  sluice-way  for  the  passage  of  herring,  should  always 
he  kept  open.  The  South  Shore  Railway  located  their  rail- 
way over  the  pond  created  by  the  dam  which  was  thus  granted 
under  the  act  of  the  legislature.  It  turned  out  from  the  very 
beginning  that  the  dam  had  been  built  without  the  slightest 
right,  as  against  the  public  or  the  Commonwealth.  They  had 
never  complied  with  the  provisions  of  the  statute.  They  had 
built  no  sluice-way  and  no  place  for  the  passage  of  herring ; 
and  the  claim  was,  when  the  South  Shore  Railway,  under 
another  grant  from  the  Commonwealth  under  the  right  of 
eminent  domain,  for  public  purposes,  came  in  and  located 
their  road  over  this  pond,  — the  claim  was,  "You  have 
lessened  our  water-rights  by  filling  up  part  of  the  pond.” 
It  was  answered:  "You  cannot  complain.  You  do  not 
own  anything  there.  You  have  no  right  there  whatever. 
You  have  no  right  to  keep  your  dam  there  whatever. 
You  have  no  right  to  keep  that  dam  up.  It  is  a nui- 
sance.” It  was  true  that  it  was  a nuisance.  In  that 
case  the  sheriff  ruled  against  the  objection ; a verdict  was 
rendered;  the  case  came  up  before  Judge  Hoar,  who  was 
then  on  the  Common  Pleas  bench.  He  held  that  it  was  a 
good  objection,  and  set  aside  the  verdict.  The  Supreme 
Court  accepted  the  verdict.  They  said  that  the  South  Shore 
Railroad  must  pay  damages,  and  the  fact  that  the  Common- 
wealth could  interfere,  or  perhaps  anybody  else  could  get 
them  indicted  for  a nuisance,  was  none  of  the  business  of  the 
South  Shore  Railway ; so  I say  with  reference  to  the  City 
of  Boston,  " Whatever  dealings  we  may  have  had  under  this 
act  in  reference  to  the  Middlesex  Canal,  is  none  of  your  busi- 
ness. We  will  deal  with  you  in  reference  to  your  rights 
here.” 

Again,  there  is  another  case  bearing  upon  this  point.  It 
is  that  of  Tufts  vs.  Charlestown,  in  the  4th  of  Gray,  537. 
That  case  was  this  : A street  was  laid  out  by  the  City  of 
Charlestown  over  land  over  which  there  was  a right  of  way 
in  a third  party.  The  petitioner  owned  the  land  subject  to 
this  right  of  way.  He  had  built  upon  that  land  a house.  He 
had  no  right  to  keep  it  there,  as  against  the  owner  of  the 
right  of  way,  and  that  was  attempted  to  be  availed  of  by  the 
City  of  Charleston  in  reference  to  a question  of  damages,  — 
as  they  say  to  us  here,  " You  have  no  right  that  the  Saxonville 
dam,  and  these  other  dams,  should  be  kept  up.  You  cannot 
compel  the  owners  of  these  dams  to  keep  them  up  for  a 
day.”  So  the  the  City  of  Charlestown  said  in  that  case, 
"You  cannot  keep  your  house  there  for  a day.  Somebody 
else  can  compel  you  to  take  it  away  at  any  moment  of  time. 


518 


Argument  of  Hon.  J.  G.  Abbott. 


Therefore  you  have  no  right  to  claim  damages  for  that.  You 
have  a right  to  claim  damages  for  what  you  have  a legal  right 
to,  and  nothing  else.”  The  court  below  ruled  the  other  way, 
and  it  was  sustained  by  the  Supreme  Court,  — that  the  party 
had  a right  to  obtain  damages  from  the  City  of  Charlestown 
for  the  moving  of  the  house. 

Then  I have  the  case  of  Parker  vs.  The  Boston  and  Maine 
Railroad,  in  the  3d  of  Cushing,  114.  One  of  the  claims  in 
that  case  was  for  draining  a well. 

Commissioner  Russell.  [Interrupting.]  Here  is  a case 
to  which  I would  call  the  attention  of  both  counsel, — Marsden 
vs.  The  City  of  Cambridge. 

Mr.  Abbott.  [After  reading  the  head-note.]  I should 
say  from  this  head-note  that  he  had  no  legal  right  to  have 
that  part  stay  there.  Still,  the  court  says,  that,  as  against 
the  city  the  plaintiff  may  recover  damages  for  removing  that 
which  he  has  no  legal  right  to  have  kept  where  it  was,  when 
removed. 

Commissioner  Russell.  It  would  seem  to  carry  the 
doctrine  a good  way. 

Mr.  Abbott.  I don’t  think  it  would  carry  it  any  farther 
than  the  case  which  I have  just  cited  from  the  3d  of  Cush- 
ing. That  case  was  this  : The  petitioner  claimed  damages 
for  draining  a well  upon  his  own  land,  by  the  act  of  the  de- 
fendants in  locating  their  railway  and  digging  a deep  cut  on 
somebody  else’s  land  that  they  had  taken,  — not  his  land. 
But  in  making  this  cut  they  had  interfered  with  these  under- 
ground springs  which  filled  his  well  on  his  own  land ; and 
his  claim  against  them  was  for  damages  for  destroying  this 
well.  The  answer  on  the  part  of  the  railroad  was  this : 
It  is  perfectly  well  settled  that  you  have  no  right  to  have 
water  run  under  another  man’s  land  into  your  wells.  It 
is  well  settled,  that  if  I have  a well  on  my  land,  you  on  yours 
may  dig  a deeper  well  and  drain  my  well,  and  there  is 
no  legal  claim  for  damages  for  that  act.  The  owner  of 
the  well  drained  has  no  right  to  have  the  water-springs 
feeding  his  well  run  through  his  neighbor’s  land.  They 
may  be  cut  off  at  any  time,  so  far  as  his  well  is  concerned. 
Now  come  the  railway  company  and  locate  their  railway 
upon  the  neighbor’s  land  and  dig  their  trench,  and  it  cuts  off 
the  underground  springs  from  the  petitioner,  which  fed  his 
well  upon  his  own  land. 

Mr.  Butler.  [Interrupting] . Oh,  no,  they  opened  on  the 
other  side  and  drained  his  well.  That  was  the  trouble.  I 
cited  a case  the  other  day,  from  the  6th  of  Cushing. 

Mr.  Abbott.  They  cut  down  upon  somebody  else’s  land. 
Now  the  claim  was  true,  as  between  individuals,  beyond  all 


Argument  of  Hon.  J.  G.  Abbott. 


519 


question,  — "You  have  no  easement  in  the  flowing  of  water 
through  your  neighbor’s  land  to  your  own  land  or  well. 
Therefore,  when  that  is  interfered  with,  to  which  you  have 
no  legal  right,  it  is  not  a cause  for  damages.  You  cannot 
maintain  any  action  for  damages  for  that  reason.”  Still,  in 
that  case,  the  Chief  Justice  gives  the  opinion  of  the  court 
and  holds  that  railways,  or  anybody  coming  in  and 
claiming  under  a grant  from  the  public  by  right  of  eminent 
domain,  upon  condition  that  they  shall  pay  damages  to  any 
person  injured  in  his  property,  must  pay  for  the  well.  I 
think  the  principle  of  that  case  would  sustain  this  case  which 
you  have  just  cited,  which  I agree  goes  a little  farther.  It 
seems  to  me  the  principle  of  it  would  sustain  that  case.  The 
railway  did  not  take  any  of  the  petitioner’s  land  when  they 
drained  the  well.  The  taking  of  land  was  of  a neighbor’s 
land  ; and  if  the  neighbor  had  done  those  very  acts  he  would 
have  had  a perfect  right  to  do  them.  And  when  this  railway 
company  come  in  claiming,  under  a grant  of  the  legislature, 
upon  condition  that  they  shall  pay  all  damages,  they  are 
to  pay  damages,  when  as  private  individuals  and  owners  of 
the  land,  they  would  not  be  compelled  to  pay.  The  question 
is  one  of  damages,  and  of  damages  alone.  I believe  that  is 
all  I desire  to  say  upon  that  subject. 

I have  gone  over  these  matters  as  briefly  as  I possibly  could, 
and  perhaps  too  briefly,  but  I think  not ; because  for  you 
who  are  to  pass  upon  this  question  of  law  it  is  sufficient  to 
indicate  the  answers  to  the  positions  taken  by  my  friend  on 
the  other  side.  I think  I have  established  this  right,  — the 
right  on  the  part  of  the  two  clients  that  I represent  here,  the 
Talbots  and  Faulkners,  to  be  paid  their  damages  for  the 
taking  of  the  water  of  Sudbury  river,  such  as  they  have  been 
proved  to  be,  and  all  that  they  are  fairly  and  reasonably  en- 
titled to  for  the  deprivation  of  the  amount  of  water  taken. 
The  cases  of  course  depend  very  much,  almost  entirely, 
upon  the  same  evidence ; and  the  rights  are  such  that 
it  so  happens  that  Mr.  Faulkner  must  be  damaged,  and  dam- 
aged in  the  first  place  before  Mr.  Talbot  is  reached ; i.  e. , 
the  moment  the  water  gets  down  to  a certain  point,  the  right  of 
Mr.  Faulkner  to  use  ceases.  It  destroys  him  while  still  there 
is  some  water  left  for  Gov.  Talbot.  So  that  while  their  rights 
depend  upon  the  same  act  and  grow  out  of  the  deprivation 
of  water  at  the  same  place,  still  the  rules  applicable  to 
them  of  course  will  be  somewhat  different.  Now  to 
commence,  with  a single  exception  to  which  I shall  call  your 
attention,  in  the  case  of  Mr.  Faulkner,  I am  prepared  to  say 
that  I do  not  claim  damages  except  for  the  deprivation  for 
about  six  months  in  the  year.  I do  not  mean  that  the  de- 


520 


Argument  of  Hon.  J.  G.  Abbott. 


fendants  would  not  be  liable  to  pay  damages  for  the  depriva- 
tion of  water  through  the  whole  year,  as  a matter  of  law. 
But  when  you  come  to  see  what  the  damages  are,  I think, 
looking  at  the  case  fairly,  that  with  the  single  exception  to 
which  I shall  call  your  attention  directly,  the  claim  for  dam- 
ages grows  out  substantially  of  what  will  happen  within  six 
months  of  the  year.  And  it  is  for  this  reason,  as  I un- 
derstand it.  Taking  the  346  miles  of  water-shed  that 
furnishes  water  to  the  river  at  Billerica  dam,  and  depriving 
us  of  72t3Q  miles,  which  is  the  proof  here  (although  the  city 
say  it  is  77  miles),  taking  the  one-fifth  out  it  will  leave 
water-shed  enough  to  supply  us  somewhere  about  six  months 
in  the  year.  Of  course  I cannot  fix  it  with  exactness, 
neither  can  any  human  being.  I say  it  will  leave  water-shed 
enough  to  furnish  for  about  six  months  in  the  year  all  the 
water  that,  situated  as  Billerica  dam  is,  can  be  retained  and 
used  at  that  fall.  The  reservoir  is  limited,  as  I agree. 
Gov.  Talbot  has  testified  to  you  that  ordinarily  in  low  water, 
shutting  down  the  dam  at  the  end  of  work,  it  would  ordi- 
narily fill  up  the  next  morning.  The  reservoir  is  so  limited 
that  for  about  six  months  in  the  year  I have  no  doubt,  upon 
looking  at  the  premises,  it  would  be  quite  apparent  that  the 
two  hundred  odd  miles  of  water-shed  left  would  furnish  us 
with  all  the  water  that  we  could  retain  and  use  with  any 
degree  of  profit  at  that  dam.  So  that  the  damages  must  be 
substantially  confined  to  the  deprivation  of  water  for  six 
months  in  the  year.  Of  course  two  of  you  gentlemen  know 
better  than  any  of  us  can,  precisely  when  the  six  months 
should  commence  and  when  they  should  end,  though  I don’t 
believe  any  human  being  can  tell  precisely  whether  you 
should  begin  the  first  of  May  and  end  the  last  of  October, 
or  whether  you  can  begin  a little  earlier  and  end  a little 
earlier,  or  begin  a little  later  and  end  a little  later.  But, 
coming  at  it  as  nearly  as  we  can,  it  is  about  six  months  that 
we  shall  be  affected  by  this  deprivation  of  water,  and  six 
months  when  we  shall  not  be. 

Now,  what  is  the  quantity  of  water  taken?  How  much 
is  it  that  we  are  deprived  of?  Fortunately  upon  this 
matter  I think  (and  I am  aware  that  I am  addressing  two 
gentlemen  here  who  know  practically  about  it  more  than 
almost  any  one  else,  and  were  selected  for  that  reason,  and 
another  gentleman  who  thoroughly  knows  the  law  in  refer- 
ence to  it)  — I say  fortunately  we  can,  I think,  approximate 
in  this  case  as  nearly  to  the  amount  of  water  taken  (we  will 
come  to  the  damages  for  the  taking  afterwards  when  we  have 
shown  how  much  is  taken)  as  we  can  ever  in  any  case  where 
the  taking  water  is  the  subject  of  the  action  and  where  the  pre- 


Argument  of  Hon.  J.  G.  Abbott. 


521 


cise  water  taken  lias  not  been  absolutely  measured  for  a great 
length  of  time,  so  that  you  know,  from  the  measurements  of 
five  or  six  years,  exactly  what  the  amount  taken  is.  That 
we  do  not  pretend  has  been  done  in  this  case.  But  we  get 
at  it  in  this  way  (and  I desire  you  to  follow  me  and  see  if  I 
am  not  right)  — we  get  at  it  in  this  way:  There  are  72^ 
miles  of  water-shed  to  the  Sudbury  river  taken  by  the  City  of 
Boston.  All  the  water  is  taken.  By  the  terms  of  the  act, 
and  by  the  terms  of  the  taking,  all  the  water  is  taken  — not 
a portion  of  it,  but  the  whole.  The  whole  water-shed  to  the 
Billerica  mills  is  346  miles.  So  that  you  have  one-fifth  of 
that  which  supplies  the  water,  and  from  which  the  supply 
must  come,  taken  by  this  act  of  the  City  of  Boston,  and 
which  will  affect  us  practically  in  the  use  of  the  water,  as  I 
claim,  — and  I think  I can  show  you  clearly,  for  six  months 
in  the  year. 

Now,  upon  another  matter,  I am  not  going  to  claim  that 
the  water-shed  taken  is  any  better,  but  upon  all  the  evi- 
dence in  the  case,  it  is  as  good  as  the  water-shed  that  is 
left.  My  proposition  now  is  only,  that  in  getting  at  the 
amount  of  water  taken,  the  water-shed  is  as  good  and 
productive  as  that  which  is  left.  To  prove  that,  sir,  you 
have  but  to  look  at  the  rain-gauges  taken  at  different 
points  put  in  the  Essex  Company’s  case, — the  Cochit- 
uate,  which  is  the  nearest  to  the  water-shed  taken  by  the 
City  of  Boston,  and  which  is  the  only  one  in  that  neighbor- 
hood, the  one  at  Cambridge  and  the  one  at  Lowell,  both  of 
which  are  less ; and  I think,  Mr.  Francis,  the  one  at  Lowell 
is  nearly  seven  or  eight  inches  less  than  the  Cochituate, 
which  is  nearest  this  water-shed.  So  that  from  some  reason 
or  other  (why  it  is  we  don’t  know ; it  is  sufficient  that  we 
take  the  fact)  — for  some  reason  or  other  the  rainfall  at  or 
near  the  water-shed  taken  is  larger,  and  has  been  larger  for 
the  last  ten  or  twenty  years,  or  since  any  gauge  has  been 
taken,  than  it  is  in  any  part  of  this  water-shed.  I am  right, 
therefore,  in  saying  this  — that  the  water-shed  taken  is  as 
good  and  productive  as  any  portion  of  the  water-shed  left. 
More  than  that,  taking  the  testimony  of  Mr.  Mills  and  Mr. 
Storrow  and  others  — Mr.  Mills  especially  — as  to  the  charac- 
ter of  the  land,  he  puts  the  water-shed  taken  upon  the  Sud- 
bury river  as  more  productive  and  better  (I  mean  so  far  as 
the  character  and  lay  of  the  land  is  concerned,  and  the  char- 
acter of  the  soil)  than  the  water-shed  below  the  taking ; 
because  below  there  are  very  broad  and  large  meadows  where 
the  water  from  the  upland  is  liable  to  spread  out  upon  the 
meadows,  and  is  much  more  liable  to  evaporation  than  it  is 


522 


Argument  of  Hon.  J.  G.  Abbott. 


above.  I then  have  the  right  to  say  that  the  water-shed 
taken  is  as  productive  as  the  water-shed  that  is  left. 

We  have  two  means  of  getting  at  the  amount  of  water 
which  that  water-shed  will  yield.  In  the  first  place  you  have 
the  experiments  of  the  Essex  Company,  measuring  for  five 
years  the  water  which  they  actually  had.  That,  I suppose, 
is  an  approximation,  and  a pretty  close  approximation,  to 
the  water  which  they  actually  get  out  of  their  whole  water- 
shed. That  is,  the  water-shed  in  New  Hampshire,  and  that 
in  Massachusetts  of  the  Sudbury  river  and  the  Assabet  river ; 
and  there  being  -fa  part  taken  of  all  the  water-shed  that  the 
Essex  Company  have  at  their  dam,  provided  the  same  rules 
and  the  same  laws  should  apply  to  each  part  of  the  4,126 
miles  of  their  water-shed,  you  then  get  at  practically  what 
this  water-shed  would  produce  at  different  points  of  time.  I 
have  gone  into  that,  and  I only  intend  to  use  that  calculation 
for  this  purpose,  — to  say  that  it  brings,  taking  the  average, 
slightly  the  largest  product  from  this  water-shed  taken.  Then, 
the  other  method  which  I have  taken  (and  which  I propose 
to  put  before  you  now)  — the  other  method  of  getting  at  the 
amount  of  water  yielded  by  that  water-shed  during  the  six 
months  which  we  claim  that  it  injures  us  and  affects  our  prop- 
erty— is  this  : You  take  the  rainfall  at  the  Cochituate,  which 
is  the  only  one  kept  in  that  neighborhood,  for  the  last  ten  years 
preceding  1875  ; you  get  the  average  of  the  six  months  be- 
ginning with  May  and  extending  to  October,  inclusive  (in 
the  taking  of  those  months,  I think  you  can  see  the  practical 
difficulty,  — while  I agree  that  some  years  it  will  begin 
earlier  in  the  spring  and  extend  later,  and  that  other  years  it 
will  end  earlier,  still,  adopting  some  rule,  the  taking  the  six 
months  beginning  with  May  and  ending  with  October,  and 
thus  taking  the  six  dry  months,  would  be  about  as  fair  a way 
of  getting  at  it  as  you  could  adopt. ) I claim  that  upon  the 
evidence  in  this  case  from  Mr.  Mills,  and  upon  what  is  known 
to  some  of  you,  because  it  has  been  testified  to  so  often  that 
it  is  known  to  everybody  who  has  ever  tried  any  water  cases, 
so  as  to  become  almost  common  knowledge,  you  get  into  the 
streams  ordinarily  in  Massachusetts  and  in  New  England 
fifty  per  cent,  of  the  rainfall  of  the  whole  year. 

Mr.  Mills  testifies  to  you  that  it  is  from  25  to  30  per  cent, 
for  the  summer  months,  July,  August,  and  September. 
The  New  York  experiments  give  you  28  per  cent.,  but 
for  the  three  summer  months,  say  25  or  30  per  cent. 
Well,  now,  gentlemen,  to  make  the  matter  as  sure  as  you  can 
any  matter  of  this  kind,  where  you  can  get  only  an  approx- 
imation (you  can  by  no  possibility  do  anything  more  than  get 
an  approximation  to  the  actual  result),  in  order  not  to 


Argument  of  Hon.  J.  G.  Abbott. 


523 


make  it  too  large,  I have  taken  for  the  ten  years  previous 
to  this  time  the  average  of  the  six  months,  at  25  per 
cent,  only  of  the  rainfall  of  these  months,  — 25  per  cent, 
saved  into  the  .streams,  which  I believe  those  gentle- 
men who  are  acquainted  with  such  matters  will  say  is 
liberal  against  myself.  I then  take  the  four  summer  months 
from  June  to  September,  inclusive,  and  I take  but  20  per 
cent,  of  the  rainfall  of  those  months  saved,  — although  the 
testimony  is  here  that  it  is  25  to  30  per  cent.  ; still,  in  order 
to  make  the  thing  as  nearly  right  as  I can,  and  be  sure  that 
I do  not  overestimate  it,  I take  the  lesser  sum  of  20  per  cent, 
only  of  the  rainfall.  I then  take  the  average  of  each  of  the 
months  of  June,  July,  August,  and  September,  for  the  ten 
years  separately,  and  take  20  per  cent  of  the  rainfall  during 
those  months,  separately,  and  see  what  each  one  of  them  will 
give  for  the  72t3q  miles  taken,  and  for  the  whole  346  miles. 
You  will  see,  gentlemen,  that  I take  the  six  months  at  25 
per  cent,  of  the  rainfall ; I take  four  months  at  20  per  cent, 
of  the  rainfall  saved,  and  then  I take  each  of  the  four  sum- 
mer months  separately,  at  20  per  cent,  of  the  rainfall  saved, 
and  see  what  the  result  is,  and  how  much  water  there  is,  — 
taking  20  and  25  per  cent,  of  the  amounts,  so  as  to  ascertain, 
if  I can,  what  water  we  are  absolutely  deprived  of. 

Well,  now,  gentlemen,  I ^ want  to  deal  with  one  other 
matter,  at  this  point, — the  matter  of  evaporation  and  loss 
in  getting  from  the  point  where  it  is  taken  down  to  our  pond, 
which  is  twenty  odd  miles.  I think  that  was  dealt  with 
substantially  by  the  testimony  of  Mr.  Storrow,  and  in  this  way  : 
There  is  water  enough  below  the  taking,  coming  in  from  the 
other  sources,  fully  to  supply  the  loss  from'soakage  and  evap- 
oration ; that  as  you  pour  it  in,  sir,  at  the  point  where  it 
is  taken  you  do  not  pour  it  in  in  sufficient  quantities 
to  flash  over  the  meadows  below  so  as  to  increase  the  surface 
exposed  to  the  sun  and  air,  or  increase  the  surface  exposed 
to  soakage  into  the  soil.  You  do  not  lose  any  more  by 
evaporation  when  you  have  the  whole  amount  of  this  water, 
that  is  taken  at  the  dam  by  the  City  of  Boston,  in  the  stream, 
than  you  lose  without  its  being  poured  into  the  stream.  In 
other  words,  you  do  not  increase  the  surface  exposed  to  the 
sun  and  air  by  pouring  in  this  amount  from  above,  or  taking 
it  away.  It  remains  the  same.  Neither  do  you  increase,  to 
any  extent,  the  surface  to  soak  away  into  the  soil.  It 
keeps  in  the  stream,  and  the  surface  is  in  both  cases  the 
same  substantially.  So  that  whether  you  have  really  the  20 
or  25  per  cent,  taken  by  the  City  of  Boston,  you  have  the 
same  loss  by  evaporation  below.  Whether  you  have  this 


524 


Argument  of  Hon.  J.  G.  Abbott. 


quantity  from  the  above  or  not,  you  have  the  same  loss 
below.  That  is  a constant  quantity. 

And  I believe,  as  Mr.  Storrow  said,  so  long  as  you  keep 
the  quantity  (as  you  do  in  the  summer  months)  so  small 
that  it  will  not  overflow  the  banks,  or  increase  the  sur- 
face exposed  to  sun  and  air  and  soakage  of  the  banks,  there 
is  no  increased  loss  from  evaporation.  If  the  water  put  in 
above  has  any  effect,  it  rather  decreases  the  quantity  lost  from 
evaporation,  — because  as  you  increase  the  depth  of  the 
water,  to  a certain  extent  you  decrease  the  temperature,  and 
evaporation  depends  to  a certain  extent  upon  the  tempera- 
ture. The  warmer  the  water  the  more  will  evaporate.  In 
increasing  the  volume  you  decrease,  in  summer,  the  amount 
due  to  evaporation,  because  the  temperature  would  be  some- 
what colder  ; but  I suppose  that  is  an  inappreciable  quantity. 
So  that  all  we  have  a right  to  say  is  this  : that  there  is  no 
loss  of  this  water  by  evaporation,  from  the  fact  that  under 
the  circumstances  of  the  case  the  loss  from  evaporation  is  a 
constant  quantity,  and  the  pouring  in  of  this  quantity  from 
above  does  not  add  to  that,  or  increase  it  in  any  way  what- 
ever. It  remains  the  same. 

I have  myself  gone  over  these  matters  shown  in  these  written 
statements  in  my  hand.  They  have  involved  a considerable 
amount  of  calculation,  and  I have  had  them  verified  after- 
wards by  somebody  else  who  knew  better  about  figures  than 
I do.  I only  give  you  the  results. 

The  first  table  is  in  reference  to  the  six  months  and  the 
whole  water-shed  of  346  square  miles ; and  taking  25  per 
cent,  of  the  rainfall  saved,  it  gives  442  cubic  feet  per  second 
at  the  Billerica  mills,  for  the  24  hours.  That  is,  the  aver- 
age, taking  the  whole  six  months,  and  taking  25  per  cent, 
for  ten  years  of  the  rainfall  saved,  gives  you,  for  the 
whole  water-shed  of  346  miles,  442  cubic  feet  per  second. 

Take  the  same  problem  for  the  72.3  miles  taken  (and  here 
let  me  say  to  you  that  the  city,  in  one  of  those  documents 
which  we  have  had  here  before  us,  for  another  purpose,  puts 
this  water-shed  at  78)  — 

Mr.  Butler.  Allow  me  to  say  a single  word  about  that. 
It  is  in  one  of  the  documents.  Mr.  Davis  made  it  78,  and 
all  the  witnesses  for  the  plaintiff  make  it  72.5.  That  differ- 
ence is  explained  in  this  way : the  map  has  contracted,  since 
it  was  made,  by  drying,  and,  as  it  turned  out,  just  enough  to 
make  that  difference.  Mr.  Davis  measured  upon  the  same 
map,  and  then  took  the  various  points  in  the  water-shed  (for 
he  was  anxious  to  find  out  how  it  was) , and  surveyed  it  and 
ascertained  the  area,  as  compared  with  the  area  of  the  map ; 
and  he  found  he  had  to  increase  it  about  that  amount. 


Argument  of  Hon.  J.  G.  Abbott. 


525 


Mr.  Abbott.  What  we  are  after  is,  what  they  have 
taken ; and  the  result,  if  we  got  at  the  real  measurement, 
would  be  that  it  would  give  us  six  square  miles  more  by 
their  measurements.  I make  the  area  72.3,  and  have  based 
all  my  calculations  upon  it ; and  in  all  these  calculations,  in 
getting  at  the  approximate  result,  I have  endeavored  to  have 
them  made  against  my  client,  — and  therefore  I took  the 
72.3  miles,  because  Mr.  Mills  and  Mr.  Wooster  testified  to 
it,  although  I was  aware  that  the  city  claimed  78. 

For  six  months,  taking  the  average  of  ten  years,  for  the 
72.3  miles  taken,  it  would  give  91.67  cubic  feet  per  second 
for  the  24  hours,  reckoning  at  25  per  cent,  saved  for  the  six 
months.  You  see  that  is  little  more  that  one-fifth;  — I say 
it  in  order  that  you  may  not  be  misled  by  that  in  any  of  the 
figures  ; 72.3  is  a , little  more  than  one-fifth  of  the  whole  346 
miles  taken.  ♦ 

Now  I might  as  well  go  through  with  the  results  for  the 
six  months.  I get  the  formula  of  8.8  cubic  feet  per  second 
over  a one-foot  fall,  which  is  the  exact  measurement  for  a 
horse-power,  as  I understand  ; it  gives  you,  for  the  six 
months,  for  the  whole  346  miles,  over  an  eleven-feet  fall  (which 
is  our  fall),  562.81  gross  horse-powers.  If  you  could  get 
the  whole  power,  you  would  have  that  amount ; and  for  72.3 
miles,  using  the  same  formula,  you  have  115.36  gross  horse- 
power, for  the  twenty-four  hours ; all  these  estimates  are 
made  for  the  twenty-four  hours.  The  number  of  cubic 
feet  of  water  left,  after  deducting  the  72.3,  is  350.33, 
and  of  horse-powers  447.45;  i.  e.,  the  part  of  the  water- 
shed not  taken  will  give  you  that  number  of  gross  horse- 
powers for  the  part  left,  for  the  twenty-four  hours.  I 
then  deduct  25  per  cent,  from  that  result,  waste,  etc.  Mr. 
Holmes  has  testified  that  it  is  75  to  80  per  cent,  that 
you  get  practically  and  effectively  out  of  the  gross ; and  I 
take  75  per  cent,  as  I have  heard  it  testified  to  by  persons 
upon  whose  judgment  I put  a great  deal  of  reliance,  as  what 
you  get  practically  out  of  the  gross  horse-powers.  That 
gives  you  335.55  as  the  effective  horse-powers  for  the  water- 
shed, left  after  deducting  the  72.3.  The  same  rule,  sir,  gives 
86.52  horse-powers  effective,  for  the  six  months,  for  the 
twenty-four  hours  for  the  72.3  miles  taken. 

1 went  through  these  calculations  myself,  and  then  had 
them  verified,  so  that  the  figures  might  be  right,  and  I think 
I have  given  you  them  correctly. 

Mr.  Butler.  Will  you  tell  me  how  much  you  reckon  a 
cubic  foot  over  your  eleven-foot  fall?  we  reckon  it  at  ^ 
of  a horse-power. 

Mr.  Abbott.  It  may  be  that ; I have  not  measured  it. 


526 


Argument  of  Hon.  J.  G.  Abbott. 


Now,  you  might  as  well  take  into  consideration,  in  this 
connection,  other  facts.  Mr.  Talbot’s  gates,  by  his  deed, 
when  the  water  is  below  the  bolt,  taken  from  Mr.  Wilson’s 
deposition,  require  405  cubic  feet  per  second.  Mr.  Talbot, 
when  the  water  is  below  the  bolt,  has  a right  to  draw  405 
cubic  feet.  And  after  deducting  the  amount  for  the  72.3 
square  miles  taken,  it  leaves  but  350.3  cubic  feet  on  an 
average  through  the  six  months.  That  is  to  say,  he 
has  not  by  50.1  cubic  feet  as  much  as  he  has  a right  to  draw 
after  the  water  gets  below  the  bolt.  Now,  sir,  the  amount 
required  for  Mr.  Talbot’s  present  wheels,  measured  by  Mr. 
Holmes,  is  420.5  cubic  feet  per  second.  Mr.  Faulkner’s 
right  by  his  deed  is  57.3.  That  makes  Mr.  Talbot's  present 
works,  and  Mr.  Faulkner’s  present  works,  when  the  water 
is  above  the  height  of  fths  of  an  inch  below  the  bottom  of  the 
bolt,  require  477.8  cubic  feet  per  second. 

Commissioner  Francis  You  are  assuming  that  the  mills 
run  night  and  day  ? 

Mr.  Abbott.  Yes,  sir,  I am  taking  the  twenty-four  hours. 
I am  taking  the  average  of  six  months.  I am  aware  that  a 
portion  of  the  time  we  may  hold  back  at  nights.  That  I 
will  come  to  afterwards.  Then  taking  the  average  of  six 
months, — after  the  city  have  taken  their  72.3  miles,  and 
got  fairly  at  work,  so  that  it  will  be  effective  for  six  months, 
we  have  but  350.3  cubic  feet,  making  a deficiency  for  the 
six  months  of  127.5, — taking  the  averages,  so  that  Mr. 
Faulkner  would  be  out  of  the  question  entirely.  You  have 
not  enough,  on  the  average  for  the  six  months,  to  run  as 
much  as  Mr.  Talbot  has  the  right  to  run  when  his  water  is 
below  the  bolt.  And  I am  obliged,  Mr.  Chairman  and 
gentlemen,  as  you  see,  to  deal  with  averages  to  a great  ex- 
tent, as  there  is  no  other  possible  way  in  which  you  can  get 
at  results. 

Now,  take  the  four  summer  months,  — June,  July, 
August,  and  September,  — take  the  average  for  ten  years 
ending  with  1875.  We  do  not  take  this  year,  because  it  was 
not  completed.  Taking  the  years  previous  to  1875,  and 
taking  the  average  rainfall  of  those  four  months,  and  taking 
but  20  per  cent,  of  that  rainfall  as  the  effective  quantity 
which  that  water-shed  will  yield  to  us  of  water-power,  I fi nd 
that  for  the  whole  346  miles,  averaging  it,  it  will  give  343 
cubic  feet  per  second  for  the  twenty -four  hours,  and  apply- 
ing the  same  rule  to  the  72.3  taken,  it  gives  71.72.  The 
resul  t is  left,  after  taking  out  the  72.3  miles,  of  271.28. 

By  adopting  this  course,  you  find  for  four  months  that  you 
have  left  271.28  cubic  feet  only,  after  taking  out  the  72.3 
square  miles,  and  that  will  produce  254.15  horse-powers 


Argument  of  Hon.  J.  Gr.  Abbott. 


527 


effective,  and  some  little  fraction;  and  the  72  miles  taken 
will  produce  67.32  horse-powers  effective  for  the  four  months, 
that  is,  for  twenty-four  hours.  Mr.  Talbot’s  and  Mr.  Faulk- 
ner’s wheels  requiring  about  480  cubic  feet  per  second,  you 
find  the  amount  of  water  actually  furnished  leaves  a very 
large  deficiency.  So,  applying  this  calculation,  and  going 
through  the  four  months,  you  find  there  is  a deficiency  of 
water  to  furnish  Mr.  Faulkner  anything, 

Then  I have  gone  through  each  of  the  four  months  of 
June,  July,  August  and  September,  with  precisely  the  same 
calculations,  and  the  results  are  very  nearly  alike,  except 
that  you  will  find,  as  you  wTould  expect,  in  the  month  of 
August,  it  being  in  the  average  of  years  the  rainiest  month 
of  the  year,  considerable  gain.  You  will  find  that  in  the 
month  of  August  the  effective  horse-powers  amount  to  85.66 
for  the  part  taken.  Taking  that  particular  item,  the  amount 
in  J une  would  be  58.85  ; in  July  it  would  be  65.08,  and  in 
September  60.72, — for  the  average  of  ten  years.  That  is 
for  the  amount  taken,  — the  effective  horse-powers.  The  re- 
sult of  it  is  that,  for  the  four  months,  you  get,  for  the 
amount  taken,  for  the  twenty-four  hours,  by  taking  twenty 
per  cent.,  seventy-one  and  some  hundredths  cubic  feet,  and 
of  effective  horse-powers,  67.32.  Now,  in  order  to  make 
the  approximation  as  certain  as  I can,  I have  gone  to  work 
and  obtained  the  results  from  the  Essex  Company  of  the 
amount  of  water  absolutely  saved  for  five  years.  I found  the 
result  of  averages  there,  by  taking  one  fifty-seventh  part 
of  them  (because  they  say  the  land  taken  is  but  one  fifty- 
seventh  part  of  the  whole  water-shed)  gives  a larger 
amount  in  cubic  feet  per  second  than  the  rainfall.  Apply 
to  it  the  rule  which  I have  applied  before  ; for  example  : the 
Essex  Company,  for  six  months,  for  72.3  square  miles,  taking 
the  average  for  five  years,  would  give  you  121.46  cubic  feet, 
against  hi. 6 given  by  the  rainfall.  And  for  the  four 
months  the  Essex  Company’s  experiment  gives,  taking 
the  average  of  all  the  years  together,  86.76  ; while  the  rain- 
fall for  the  same  time,  taking  the  saving  at  twenty  per  cent, 
for  the  average  of  ten  years,  gives  71.72.  The  121.46  was 
in  the  Essex  Company’s  experiment,  where  they  measured 
the  exact  quantity  of  water  they  had.  I take  one  fifty- 
seventh  of  that,  and  then  for  the  four  months  the  Essex  ex- 
periment gives,  by  applying  the  same  rule  to  it,  86.76,  and 
the  twenty  per  cent,  of  the  rainfall  gives  71.72.  I do  this 
for  the  purpose  of  showing  that,  as  far  as  you  can  get  at  any 
rule  for  approximation,  the  rule  I have  adopted  for  rainfall 
does  not  produce  too  large  an  amount.  I am  aware  that  you 
cannot  say  positively  that  this  one  fifty-seventh  should  pro- 


528 


Argument  of  Hon.  J.  G.  Abbott. 


duce  precisely  in  the  same  time  the  same  proportion  as  all 
the  other  parts  ; but  I say,  adopting  it  as  a rule,  it  produces 
larger  results. 

Then  I want  to  go  farther  and  take  the  minimum  of  the 
Essex  Company’s  water  for  the  72.3  miles.  Mr.  Mills  testi- 
fied that  that  minimum  was  45  cubic  feet  per  second  for  the 
twenty-four  hours.  I find,  taking  that  as  given  in  those 
tables  as  the  lowest  amount  that  ^yth  part  of  the  Essex 
Company’s  water-shed  will  produce  per  second  — the  lowest 
amount  it  ever  gets  down  to  — is  45  cubic  feet  per  second. 
And  I find  that  out  of  the  five  years  there  are  only  a few 
days  when  it  will  get  down  as  low  as  that  for  the  72.3  miles, 
and  that  is  for  the  twenty-four  hours.  That  is  ^yth  part  of 
the  2,300  cubic  feet  per  second.  I take  the  smallest  amount 
— the  minimum;  and  you  will  find  only  a very  few  days 
when  it  is  anywhere  down  in  that  neighborhood  for  the 
twenty-four  hours. 

Now,  I think  I have  a right  to  put  it  to  you,  gentlemen, 
practically  to  say,  that  when  there  is  furnished  from  that 
water-shed  but  45  cubic  feet  per  second  for  the  twenty-four 
hours,  and  that  is  the  minimum,  and  but  a few  days  in  five 
years  — that  we  can  use  the  whole  twenty -four  hours  in 
twelve  hours.  You  can  effectively  use  that  amount  in 
twelve  hours.  You  can  use  the  whole  twenty-four  hours’ 
supply  in  twelve  hours,  which  would  double  it.  When  you 
get  down  to  the  minimum,  — and  I am  now  dealing  with  the 
very  smallest  amounts  which,  according  to  the  Essex  Com- 
pany’s experiments  are  ever  yielded, — you  get  90  cubic 
feet  for  a working  day  of  twelve  hours  (not  calling  it  ten), 
and  that  will  give  you  84.34  effective  horse-powers  for  the 
twelve  hours  net. 

In  these  calculations  there  is  nothing  else  but  exactly  fol- 
lowing out  what  I went  over  at  the  first ; and  from  these  cal- 
culations we  are  brought  to  this  result  substantially  (and  you 
will  see  whether  I am  right  or  not)  in  attempting  to  get  at 
the  damages.  You  take  six  months,  and  you  find  by  the 
averages  (and  I must  deal  with  averages  because  it  is  utterly 
impossible  to  go  farther  into  particulars),  — you  find  by 
the  averages  that  we  have  not  water  enough  left  for 
those  six  months  to  run  during  the  whole  time,  — not 
enough  by  a large  amount.  You  have  not  water  enough  to 
run  the  wheels  that  Mr.  Talbot  now  has,  and  has  a right  to 
run  when  the  water  is  running  over  the  dam.  There 
is  quite  a large  deficiency,  a calculation  of  which  you 
will  have  here  in  the  tables  now  in  my  hand,  and  which  I 
shall  hand  to  your  Honors.  You  find  also  that,  taking  the 
amount  of  water  that  Mr.  Talbot  has  the  right  to  use,  when 


Argument  or  Hon.  J.  G.  Abbott. 


529 


the  water  is  below  the  bolt,  and  when  Mr.  Faulkner  is' 
stopped,  for  the  six  months  on  the  average  there  is  a defi- 
ciency of  water  there,  to  run  the  power  that  he  has  a right  to 
use,  of  something  over  50  cubic  feet  per  second. 

Now  I want  to  deal  with  Mr.  Faulkner,  just  at  this  mo- 
ment. Of  course  the  deficiency  is  very  much  larger 
when  you  take  the  four  months,  or  when  you  take  each 
of  the  summer  months,  with  the  exception  of  August. 
There  is  a deficiency  if  you  take  the  average  of  the  six 
months,  of  the  four  months,  or  of  each  of  the  summer 
months  separately.  There  is  a deficiency  of  water,  on 
the  average,  to  run  the  whole  of  the  machinery  of  Mr. 
Faulkner  and  of  Mr.  Talbot. 

Now  Mr.  Talbot  testifies  to  you  (and  he  knows  probably 
as  much  about  it  as  any  one  else,  or  as  any  one  can  know 
from  observation) , in  his  belief,  and  from  the  best  of  his  obser- 
vation, it  would  increase  the  time  that  Mr.  Faulkner  is 
without  water,  by  depriving  him  of  one-fifth  substantially 
from  forty  days  in  the  year  to  six  months.  That  was  but  an 
opinion  formed  from  observation  of  the  running  of  the  water 
as  it  has  been  before  him  for  years  since  he  has  owned  it. 
Now,  by  taking  in  all  these  results,  — the  Essex  Company’s 
exact  measurement,  or  taking  the  measurements  which  I 
have  given  you  of  the  rainfall,  twenty-five  per  cent,  for  six 
months,  twenty  per  cent,  for  four  months,  and  for  each  of  the 
four  months, — you  will  find  that  on  the  average  by  taking 
one-fifth,  and  there  is  not  wTater  enough  left  to  run  what  Mr. 
Talbot  himself  has  the  right  to  run  when  the  water  is  dowrn 
below  the  bolt.  Therefore,  I say,  that  as  near  as  it  can  be 
proved  for  practical  purposes,  1 do  establish  this  fact  by  the 
opinion  of  Gov.  Talbot.  Then  that  opinion  is  sustained  and 
strengthened  by  the  deductions  from  the  rainfall,  taking 
them  as  I have  made  them,  and  from  the  Essex  Company’s 
experiments,  — that  if  you  have  one-fifth  part  of  that  water- 
shed taken  away,  supposing  it  is  not  more  productive  ; taking 
it  away  as  the  city  will  take  it  away  when  they  get  fairly  into 
operation,  you  will  deprive  Mr.  Faulkner  of  water  for  six 
months  at  least.  He  is  now  deprived  of  water  for  the  last 
twenty -three  years,  for  an  average  of  thirty-three  days  in  the 
year.  It  will  increase  that  deprivation  from  thirl y- three 
days  up  to  six  months,  beyond  all  peradventure. 

Let  me  say  this  also  : That  from  the  necessity  of  the  case 
we  are  dealing  and  must  deal  with  approximations,  I was 
going  to  say  with  guesses,  to  a certain  extent,  and  we  must 
deal  with  them  carefully  for  this  reason,  that  we  never  can 
get  anything  for  Mr.  Faulkner  except  what  we  get  now  ; and 
if  we  should  happen  to  carry  approximations  beyond  the 


530 


Argument  of  Hon.  J.  G.  Abbott. 


mark,  and  it  should  happen  that  this  deprivation  of  one-fifth 
would  extend  the  time  when  there  would  be  a deficiency  to 
Faulkner’s  mills,  for  more  than  six  months,  why  it  is  a 
loss  to  him  without  any  possibility  of  its  being  made  up  to 
him.  Therefore  I say  that  in  all  these  calculations  I should 
have  been  justified  in  taking  a little  more  liberal  rule 
than  I have  adopted,  for  the  reason  that  this  is,  after  all, 
approximation  and  guessing,  and  that  if  the  guesses  are 
against  us  now  they  never  can  be  remedied  in  any  shape 
whatever.  I only  allude  to  this  in  order  that  you  may 
properly  apply  the  rule  and  see  that  everything  fair  is  given 
to  both  these  gentlemen.  Now  in  this  matter  of  Mr. 
Faulkner  I said  that  besides  the  six  months  there  was  one 
other  matter  applying  to  him  which  I wanted  to  call  your 
Honors’  attention  to,  and  that  is  that  in  the  winter  Mr. 
Faulkner  has  been,  and  very  probably  will  be  again, 
affected  by  this  deprivation  of  one-fifth  of  this  water. 

The  winter  months,  as  you  will  find  by  taking  the 
average  for  the  last  ten  years,  are  the  dryest  months  in  the 
whole  season,  i.  e.,  there  is  less  rainfall  in  the  three  winter 
months  than  in  any  three  months  of  the  whole  season.  Take 
the  last  ten  years,  the  average  of  rainfall  for  December, 
January  and  February  amounts  to  a little  less  than  ten 
inches,  at  the  same  time  the  average  for  the  year  is  a little 
over  fifty,  making  one-fifth  for  that  quarter  of  the  year. 
The  average  for  December  is  a little  over  three,  for  January 
a little  over  three,  and  for  February  three  and  six-tenths. 
They  are  the  dryest  months  in  the  year.  Now  it  so  hap- 
pens that  more  of  the  water  is  saved  for  those  months  than 
during  any  other  months  in  the  year.  If  it  should  happen, 
as  it  sometimes  does,  and  as  it  did  in  1875,  that  there  is ’'a 
dry  winter,  — a very  hard  winter,  where  it  freezes  up  and 
there  is  no  January  thaw,  which  ordinarily  keeps  tilings 
right  in  winter,  — you  will  certainly  have  Mr.  Faulkner  cut 
off  during  the  winter  months,  as  he  was  in  1875,  wheu  all 
these  things  occured. 

Now  I said  that,  with  the  exception  of  something  which 
was  applicable  to  Mr.  Faulkner,  the  damages  would  be  con- 
fined to  deprivation  for  six  months.  1 think  in  that  case,  in 
order  thoroughly  to  protect  him  against  what  has  occurred 
and  what  will  occur  again,  you  should  make  some  allowance 
for  loss  of  water  in  the  winter  months  ; because  if  it  should 
so  happen  that  we  should  have  such  a winter  as  we  had  in 
J875,  cold,  hard,  and  without  any  thaw  to  bring  down  the 
water,  you  would  just  as  certainly,  for  the  months  of  Jan- 
uary and  February,  have  him  deprived  of  water,  as  such  an 
event  should  happen.  Therefore  there  should  some  allow- 


Argument  of  Hon.  J.  G.  Abbott. 


531 


ance  he  made  to  him  for  loss  of  water  in  the  winter  months. 
I put  it  to  you,  gentlemen,  whether  there  is  not  that  degree 
of  probability  to  it  that  compels  you  to  make  allowance  on 
his  behalf  for  some  loss  in  the  winter.  I do  not  claim  that 
during  the  six  months,  so  far  as  Mr.  Talbot  is  concerned, 
it  will  affect  him,  although  it  may  somewhat. 

Now,  gentlemen,  what  damages  shall  be  given  to  these 
gentlemen  for  a deprivation,  such  as  I have  endeavored  to 
prove  before  you,  and  of  the  result  of  which  you  will  have 
an  exact  estimate  rendered.  Taking  Mr.  Talbot’s  case  first, 
you  have,  I think,  reasonably  ascertained,  or  as  nearly  as  an 
approximation  can  be  made,  and  verified  the  result,  that 
there  are  sixty  odd  effective  horse-powers,  for  twenty-four 
hours,  that  he  is  deprived  of.  You  have  the  fact,  by  this 
approximation,  shown  you  as  well  as  it  possibly  can  be  from 
the  nature  of  the  case,  that  all  the  power  and  all  the  surplus 
power  for  six  months  can  be  used  by  him  ; because,  taking 
the  average  of  it,  his  present  means  and  appliances  will  use 
up  all  the  power  there  is  for  six  months  (1  don’t  mean  that 
at  some  days  there  may  not  be  a freshet  when  there  will 
some  water  run  to  waste,  but,  taking  the  average,  you  find 
that  his  present  appliances  and  wheels,  with  Mr.  Faulkner’s, 
will  more  than  use  up  all  the  water  that  is  furnished)  ; 
therefore  I say  that  as  far  as  he  is  concerned,  for  six  months 
in  the  year,  he  can  use,  and  will  use,  all  the  water.  Yes, 
one-fifth  of  the  water  that  the  City  of  Boston  will  have  taken 
when  they  fairly  get  to  work  and  have  their  three  dams 
"built  and  their  three  reservoirs  so  as  to  do  that  which  they 
have  a right  to  do,  to  wit : take  all  the  water  of  Sudbury  river 
above  that  point,  — they  will  take  it  for  six  months,  perhaps 
tfiey  will  take  it  for  the  whole  year  round,  — but  for  six 
months  he  can  use  all  that  water-power,  and  use  it  efficiently 
and  effectively.  How  much  can  he  use  ? I have  shown  you, 
to  start  with,  that  for  six  months  that  water-shed  taken  will 
give  you  eighty  odd  effective  horse-powers  for  the  twenty -four 
hours,  or  for  the  four  months,  sixty-five  horse-powers  and 
some  odd,  for  the  twenty-four  hours.  I have  shown  to  you 
that  by  the  Essex  Company’s  experiment,  at  the  mini- 
mum, i.  e.,  taking  the  lowest  time  that  for  five  years  has 
ever  been  known,  it  will  give  him,  say,  eighty-five  effect- 
ive horse-powers,  from  that  water-shed,  for  twelve  hours. 
All  the  others  would  be  for  twenty-four  hours.  That,  sir, 
happens  for  not  more  than  four  days  in  the  whole  five  years. 
I doubled  that,  from  the  fact  that  when  it  gets  down  to 
forty-five  cubic  feet,  nobody  will  claim  that  the  mill-owners 
could  not  use  that  forty-five  cubic  feet  in  twelve  hours. 

To  recapitulate ; I have  shown  you  that  for  six  months 


532 


Argument  of  Hon.  J.  G.  Abbott. 


the  72.3  miles  taken  will  give  eighty  odd  horse-powers  for 
twTenty-four  hours.  For  four  months  it  will  give  you  sixty- 
five  horse-powers  for  twenty-four  hours.  I have  shown 
you  that  the  minimum,  which  does  not  come  but  for 
a few  days  in  the  five  years,  will  give  you  for  twelve  hours 
eighty-five  effective  horse-powers.  And  now,  sir,  I ask,  is 
it  unfair,  is  it  claiming  too  much,  when  you  claim,  as  I claim 
here  in  Mr.  Talbot’s  behalf,  that  as  to  the  effective  use  of 
that  water,  we  have  a right  to  say,  that,  year  in  and  year 
out,  for  the  working-days  of  the  year,  situated  as  he  is, 
seventy-two  miles  of  water-shed  (or  seventy-eight  miles,  or 
whatever  it  may  be)  will  yield  him  for  the  working  hours 
of  the  day  100  horse-powers.  It  gives  him,  for  the  four 
months,  sixty-five  or  sixty-seven  horse-powers  for  the 
twenty-four  hours.  And  for  twelve  of  the  hours,  at  the 
minimum,  where  it  is  at  the  lowest  amount  that  it  ever 
reaches,  it  gives  him  for  the  twelve  hours  eighty-five  horse- 
powers. 

Now,  my  belief  is,  that  a claim  larger  than  that  could  be 
fairly  justified  upon  the  evidence.  You  have  this  claim  for 
twenty-four  hours,  and  you  can  use  it  for  twelve  hours,  and 
so  you  will  increase  it  to  a certain  extent.  Do  not  these 
results,  gentlemen,  give  you  substantially  a deprivation  for 
Mr  Talbot,  six  months  in  the  year,  of  100  horse-powers, 
which  he  could  use,  undoubtedly,  during  twenty-fours  hours 
in  the  day. 

They  laugh  at  the  idea  of  taking  seventy-five  miles  of 
water-shed  causing  damage.  Why,  four  miles  of  water-shed 
in  Arlington  was  taken,  — and  I believe  two  of  you,  gentle- 
men, gave  some  $120,000,  or  more,  for  it.  It  was  a larger 
fall,  I agree.  They  come  here  and  take  seventy-eight  miles  of 
water-shed  and  would  make  you  believe  that  it  amounted  to 
nothing,  — as  my  brother  Butler  says,  even  less  than  $5,000, 
or  something  of  that  sort;  when,  in  point  of  fact,  gentlemen, 
anybody  who  knows  about  the  use  of  water,  and  knows  the 
purposes  to  which  it  is  applied  in  the  neighborhood  where 
these  works  are,  would  know  that  it  is  not  only  valuable, 
but  the  more  valuable,  if  you  please,  from  the  fact  that  water 
can  be  afforded  at  twenty  dollars  a horse-power,  wdieu  steam 
will  cost  $100  a horse-power  to  produce  it. 

Now,  as  far  as  the  Talbots  are  concerned,  I say  that  from 
the  results  of  those  calculations  (and  I ask  you  to  examine 
them  carefully,  and  see  if  I have  not  been  liberal  in  favor  of 
the  city  and  against  my  clients),  I say,  I have  the  right  to 
claim  a deprivation  of  what  will  amount  to  him,  practically, 
as  a manufacturer  and  the  owner  of  those  works,  of  a 


Argument  of  Hon.  J.  G.  Abbott. 


533 


hundred  horse-powers,  independent  of  Mr.  Faulkner.  And 
he  is  to  be  paid  for  that. 

Now,  what  is  he  to  be  paid  for  it?  Why,  gentlemen,  you 
cannot  undertake  to  give  him  damages  for  that  in  any  other 
way  than  this  : Here  is  a plant,  as  it  is  called,  on  which 

he  has  expended  $400,000,  which,  in  the  ordinary  state  of 
things,  would  be  worth  that  undoubtedly ; and  if  he  is 
obliged  to  give  that  up,  or  to  give  a portion  of  that  up,  why, 
the  damages  to  the  whole  concern  would  be  such  that  you 
cannot  give  those  damages.  It  would  be  too  large  a sum. 
Taking  away  one  hundred  horse-power  would  substantially 
destroy  Mr.  Talbot’s  works.  He  occupies  them  altogether. 
If  he  has  to  remove  one  he  would  the  whole.  I only  put 
in  the  fact  that  there  was  a $400,000  investment  in  the  plant 
for  the  purpose  of  showing  you  that  the  damages  must  be 
made  up  upon  the  basis  of  supplying  the  power  to  that 
manufactory  and  to  those  works  which  had  been  taken  by 
the  act  of  the  city,  i.  e.,  supplying  the  one  hundred  horse- 
power. 

Well,  now,  upon  this  subject,  my  friend,  instead  of  bring- 
ing evidence,  has  told  you  that  you  know,  and  everybody 
knows,  what  the  cost  of  steam-power  is.  I should  rather 
have  had  some  evidence,  and  somebody  to  contradict  Mr. 
Holmes,  instead  of  the  mere  saying  that,  "you  know  better, 
and  everybody  knows  better,”  and  that  it  does  not  cost  as 
much  as  Mr.  Holmes  testified  to  maintain  steam-power. 
Mr.  Holmes  tells  you,  that,  to  maintain  steam-power,  it 
will  cost  from  $110  to  $115  a year  per  horse-power,  which 
includes  the  reproduction  of  it.  That  is  calling  the  depre- 
ciation ten  per  cent.  Nobody  has  testified  to  the  contrary  ; 
and  I can  say  that,  so  far  from  " everybody  knowing  that 
that  is  not  the  truth,”  having,  fortunately  or  unfortunately 
for  my  clients,  been  called  upon  to  try  a great  many  cases 
within  six  months  where  this  question  was  involved, 
and  where  there  was  a sharp  and  close  contest,  I have  never 
heard  anybody  put  the  cost  of  a horse-power  under  $100, 
including  depreciation,  anywhere  in  the  neighborhood  of 
Boston.  Placing  coal  at  $8  a ton,  I have  never  found  any- 
body that  ever  put  the  cost  of  maintaining  a horse-power, 
at  less  than  $100,  including  depreciation;  and  more  fre- 
quently it  goes  up  to  $125  than  comes  down  to  $100.  Mr. 
Holmes  has  put  it  at  $110  to  $115. 

Now,  I maintain,  gentlemen,  and  you  are  to  say  whether 
it  is  not  a fair  claim,  — it  is  the  only  way  you  can  get  at  the 
damages,  — that  they  have  deprived  us  of  a working-power 
of  one  hundred  horses  during  the  working  hours  of  the  day. 
They  are  to  give  us  a sum  which  will  reproduce  that  one 


534 


Argument  of  Hon.  J.  G.  Abbott. 


hundred  horse-power  which  they  have  taken  from  us.  Apply 
to  it  the  rule,  and  the  only  rule  which  you  have  here  — the 
rule  given  by  Mr.  Holmes  — and  it  will  give  you,  say  $60  a 
year  per  horse-power.  For  six  months,  or  one  hundred  and 
fifty  days,  take  it  upon  the  basis  of  $110  per  horse-power  per 
year  for  half  a year,  it  would  he  $50  per  horse-power  — the 
depreciation  being  admitted  to  be  the  same  whether  the 
engine  is  running  or  not  running.  The  depreciation  added 
gives  us  $60  per  horse-power!  Then,  in  addition  to  that, 
Mr.  Talbot  has  not  any  steam.  He  is  not  now  obliged  to  put 
in  any  steam.  He  can  run  and  get  on  at  present  without  any 
steam.  He  can  run  his  mill.  It  has  never  been  stopped  or 
interfered  with  but  twice  since  he  built  it.  Once  was  when 
the  city  took  his  water  in  1875.  He  was  then  disturbed  a 
little  with  his  machinery.  The  other  time  was  when  we  went 
up  to  view  it  this  fall.  He  has  always  managed  to  run  his 
mill  and  his  dye-works  part  of  the  time,  and  run  them  at 
night.  He  has  managed  to  get  on  without  steam,  and  he  has 
none,  and  therefore  you  are  to  pay  him  for  the  cost  of  putting 
a 100  horse-power  steam-engine  in.  A 100  horse-power 
engine,  according  to  Mr.  Holmes,  who  is  the  only  witness 
on  that  point,  would  cost  $20,000.  And  another  condition 
is,  that  in  applying  the  steam  to  the  mill,  there  will  be  an 
interference  with  the  use  of  the  mill,  which  Mr.  Talbot  esti- 
mates at  $10,000  ; i.  e.,  he  would  not  have  that  interference 
with  a mill  of  the  size  of  his  present  mill  for  that  amount. 
Then  capitalize  the  sum  wdiich  he  is  entitled  to  — 100  horse- 
power at  the  rate  of  $60  a horse-power  per  year  — take  it  at 
five  or  six  per  cent,  as  you  may  think  best,  which  is  the  only 
way  we  can  get  at  it,  and  I say  we  are  entitled  fairly  to  that 
amount.  And  I defy  any  one,  going  over  this  matter,  and 
approximating  it  as  we  necessarily  must,  to  get  at  any  fairer 
or  better  result.  I claim  that  you  have  taken  so  Audi 
powder  from  us.  Our  works  are  the  losers  by  so  much,  and 
we  must  have  that  power  restored  to  us  or  else  the  works 
will  be  completely  ruined.  And  you  must  supply  us  with 
the  power.  It  is  not  one  of  those  cases  where  you  can  under- 
take to  estimate  the  damages  without  supplying  the  mill  Avith 
steam-power,  because  the  damage  done  will  substantially 
destroy  the  whole  property,  except  the  machinery,  from  the 
loss  of  powrer.  That  is  the  claim  on  his  part ; and  I ask  your 
attention  candidly  to  it  to  say  Avhether,  taking  the  only  evi- 
dence that  you  have  to  deal  av i t h , there  has  been  any  error 
in  my  calculations,  or  if  there  has,  whether  I have  not  erred 
against  myself  in  these  estimates  that  I have  made,  I am 
quite  sure  that  you  Avill  come  to  that  result. 

Noav  I want  to  come  to  Mr.  Faulkner’s  claim  and  deal  a 


Argument  of  Hon.  J.  G.  Abbott. 


535 


little  with  that.  His  claim  for  damages  depends  upon  differ- 
ent principles  somewhat.  He  is  entitled  to  57.3  cubic  feet 
of  Avater  per  second,  while  the  water  is  up  to  a point  three 
quarters  of  an  inch  below  the  bolt,  and  then  he  is  entitled  to 
draw  nothing.  Well  that  57.3  cubic  feet  of  water,  taking  75 
per  cent,  of  the  gross  result  as  the  effective  result,  produces 
in  round  numbers  54  horse-powers  on  an  eleven-feet  fall.  It 
is  a fraction  short  of  54,  but  near  enough  for  all  ordinary 
purposes.  You  take  the  effective  75  per  cent,  from  the 
gross  and  it  gives  you  for  him  54  horse-powers.  He  has 
just  about  that  amount  of  machinery  running  in  his  mill. 
He  is  requiring  55  horse-powers  as  running  at  the  present 
time.  Well,  I agree  that  in  his  case  — it  is  not  like  Mr. 
Talbot’s,  who  now  has  no  engine  and  is  not  required  to  have 
any  — I agree  that  Faulkner  under  his  right  at  the  present 
time,  in  order  to  run  his  mill  constantly,  is  obliged  to 
have  an  engine.  This  bears  upon  the  question  — because  in 
this  smaller  mill  of  Mr.  Faulkner,  for  thirty-three  days  per 
year,  rather  than  give  up  the  mill,  he  uses  his  engine  to 
supplement  the  water-power.  It  shows  that  I am  right  in 
saying  that  you  must  give  us  an  amount  which  will  furnish 
steam-power  for  this  water-power  which  we  lose.  He 
must  use  steam-power,  when  now  he  can  get  water  and  run. 
It  turns  out  by  the  records  kept,  that  for  the  last  eleven 
years  there  have  been  forty  days  on  the  average  in  each 
year  when  he  has  been  obliged  to  run  his  steam-engine.  If 
you  go  back  twenty-three  years  the  average  will  be  about 
thirty-three  days.  It  is  just  thirty,  I think,  for  the  last  ten 
or  eleven  years. 

Well,  now,  I suppose  it  will  be  claimed  on  the  other  side, 
that  Mr.  Faulkner  is  not  entitled,  at  your  hands,  to  start 
with,  to  the  expense  of  a steam-engine.  It  may  be  claimed 
that  he  is  not  entitled  to  the  expense  of  depreciation ; i.  e., 
that  dealing  with  him,  as  the  city  find  him,  — they  go  there 
when  they  take  the  water,  and  they  find  that  he  has  already 
been  obliged  to  get  an  engine,  because  there  are  forty 
days  in  the  year  when  he  must  run  an  engine,  — therefore, 
when  they  come  and  require  him  to  run  an  engine,  as  I have 
shown  you,  for  six  months,  and  something  more  to  be  allowed 
in  the  winter,  that  you  are  not  to  do  as  in  Mr.  Talbot’s  case,  — 
pay  him  for  getting  that  engine  new  (Mr.  Talbot  never  hav- 
ing had  any)  ; that  you  only  require  that  engine  to  be  run 
a greater  number  of  days  ; to  wit : during  the  six  months, 
which  would  be  155  days,  taking  the  holidays  and  all,  which 
would  be  about  112  days  more  than  he  now  runs  the 
engine,  aside  from  the  winter  months.  Now,  I want 
to  call  your  attention  to  this  fact : Taking  the  matters 


536 


Argument  of  Hon.  J.  G.  Abbott. 


just  as  they  are  in  Mr.  Faulkner’s  case,  he  claims  this, 
and  I think  with  a great  deal  of  propriety  and  justice, — 
he  says,  " running  forty  days  in  the  year,  my  old  engine 
will  do  my  work.  I can  get  along  very  well  with  it.  It  is 
as  good  now  as  it  was  when  it  was  new.  By  repairs  I have 
kept  it  up,” — and  that  undoubtedly  is  true.  He  will  run 
with  his  old  engine,  if  you  let  him  work  as  before,  forty 
odd  days  in  the  year.  But  if  you  bring  about  a state  of 
things  where  he  has  to  have  his  mill  run  more  than  half  the 
time  by  steam,  he  has  got  to  make  new  appliances,  and  con- 
nect it  in  a different  way,  and  under  different  circumstances  ; 
so  that  you  compel  him  now  to  make  a new  expenditure  in 
reference  to  that  matter,  which  he  would  not  be  obliged  to 
make  if  it  were  not  for  the  act  of  the  city.  There  is  cer- 
tainly truth  and  justice  in  that  claim.  Practically,  it  is  true 
beyond  all  question.  Practically,  Mr.  Faulkner  would  not 
think,  at  the  present  time,  of  obtaining  a new  and  larger  en- 
gine. He  would  keep  on  as  he  has,  for  forty  days  in 
the  year,  if  he  could  be  let  alone.  If  he  has  got  to  turn  that 
into  155  days,  he  would  be  obliged  to  make  new  arrange- 
ments. The  same  observation  applies  to  his  case  as  to 
that  of  Mr.  Talbot.  His  investment  is  so  large,  that  his 
works  are  substantially  worth  nothing  after  this  taking, 
unless  he  runs  by  steam.  He  must  be  supplied  wTith 
steam.  He  has  a right  to  claim,  writh  an  investment  of 
that  sort,  that  if*  you  take  away  his  power  to  that  extent, 
you  must  supply  him  with  steam-power  to  fully  compensate 
for  it.  The  damages  would  be  larger  the  other  way,  than  they 
would  be  if  they  were  met  by  supplying  him  with  steam. 

Now,  what  shall  be  the  measure  of  damages  for  him  for 
this  additional  length  of  time  during  which  he  is  com- 
pelled  to  use  steam?  For  clearly  in  his  case  he  will 
be  compelled  to  use  steam  six  months,  and  more  than  six 
months,  because  it  will  run  into  the  winter,  where  here- 
tofore he  has  used  it  but  forty  days  in  the  year.  You 
have  again  the  testimony  of  Mr.  Holmes  (which  is  not  con- 
troverted or  quarrelled  with  by  my  friend  on  the  other  side)  — 
you  have  his  testimony  that  the  cost  of  running  a fifty  horse- 
power engine  (fifty-four  horse-power  is  the  amount  that  he  is 
deprived  of)  is  $13.60  for  coal,  engineer  and  oil,  — simply 
for  the  cost  of  running,  with  one  man,  who  supplies  the  place 
of  fireman  and  engineer.  You  add  twenty-five  cents  a day 
for  repairs  (which  were  not  included),  and  it  amounts  to 
$13.85  ; and  then  if  you  add  four  horse-powers  more  (mak- 
ing fifty-four  horse -powers),  it  is  $1.08  more,  making  $14.98 
per  day  as  the  actual  expense  of  running  an  engine,  and  the 


Argument  of  Hon.  J.  G.  Abbott. 


536a 


daily  repairs,  without  any  depreciation,  or  expense  of  putting 
an  engine  in. 

Now,  for  the  balance  of  the  six  months,  after  deducting 
the  thirty-three  days,  you  have  122  days,  which,  multiplied 
by  $14.96,  gives  $1,825.12,  which  will  be  his  additional  ex- 
penditure, without  any  depreciation,  without  any  expense  for 
building  and  putting  in  the  new  engine,  or  any  trouble  of 
that  sort,  and  without  any  allowance  for  stoppages  that  would 
certainly  come,  perhaps  in  every  year,  but  at  any  rate  from 
time  to  time  in  the  winter,  and  for  which  an  allowance  should 
be  made  to  him.  That,  capitalized  at  five  per  cent.,  will 
give  you  thirty-six  thousand  dollars  and  over. 

Now,  in  addition  to  that,  I claim  in  Mr.  Faulkner’s  case, 
that  he  should  be  allowed  something  (I  don’t  claim  the  yearly 
depreciation  of  ten  per  cent.,  because  I don’t  think  it  would 
be  fair  to  claim  that,  and  I don’t  think  he  would  want  me  to 
claim  anything  I did  not  believe  was  fair),  — but  I do  claim 
something  for  him  for  this  : That  whereas,  by  the  act  of  the 
city,  he  is  compelled  to  make  new  and  larger  expenditures 
than  he  would  be  compelled  to  make  without  the  act  of  the 
city,  that  some  allowance  should  be  made  for  those  expendi- 
tures. No  human  being  can  tell  you  the  precise . amount. 
That  must  be  approximated.  But  that  he  is  entitled  to 
something  on  that  ground,  I claim  beyond  all  peradventure. 

Then  one  other  matter.  I claim  that  for  the  winter  (again, 
I say,  I cannot  measure  the  claim  as  I can  in  the  case  of  the 
122  days)  — I claim  that  for  the  winter  he  should  be  allowed 
something  additional ; because  I think  it  is  as  certain  as 
anything  can  be  in  the  future,  that  in  every  year  he  will  be 
stopped  in  the  winter.  He  will  be  stopped  a few  days,  and 
be  obliged  to  run  his  steam-engine  ; and  as  he  is  to  receive 
pay  now  for  damages  sustained,  I think  something  should  be 
given  him  on  this  account  at  the  present  time.  Again  I say 
some  allowance  should  be  made  to  him  for  that  stoppage  in 
the  winter  time.  I only  call  your  Honors’  attention  to  it, 
and  to  the  evidence  bearing  upon  it,  and  your  Honors  must 
fix  it  as  well  as  you  can. 

Then  there  is  one  other  matter  that  I think  he  is  entitled 
to  receive  pay  for,  and  that,  I think,  Mr.  Talbot  is,  to  a 
certain  extent,  entitled  to  receive  pay  for,  though  not  to  the 
same  extent  as  Mr.  Faulkner ; because  Mr.  Talbot,  in  the 
case  of  a break-down  of  his  steam,  can  always  apply  water 
to  some  of  his  works.  It  is  this  : That  with  one  engine,  and 
the  constant  liability  of  the  engine  to  break  down,  there  is 
something  to  be  allowed  to  him  for  that  additional  lia- 
bility in  122  days.  Well,  you  may  say  that  that  is 
going  into  the  region  of  guessing.  I agree  that  it  is 


5366 


Argument  of  Hon.  J.  G.  Abbott. 


not  measured  by  any  certain  rule.  You  cannot  tell  how 
much  time  he  will  lose  by  the  greater  liability  to  stoppage 
from  the  use  of  steam-power  than  there  is  with  such  mill-dam 
and  wheels  as  he  has  now.  But  then,  I take  it  that  nothing 
is  more  certain  in  this  world,  — and  I think  that  every  man- 
ufacturer who  has  ever  used  steam  and  water  power  will  tell 
you  that  it  is  perfectly  true  that  there  is  a greater  liability  to 
stoppage,  and  to  losses  from  stoppage,  where  you  depend 
upon  only  a single  steam-engine,  than  where  you  depend  upon 
water-power,  as  that  water-power  is  used  here.  As  it  turns 
out,  I believe  that  in  investigating  this  matter  it  will  be  found 
that  there  has  been,  for  the  last  twenty  odd  years,  only  three 
days  of  delay  from  back-water  in  that  stream. 

Now  these  are  the  elements  that  I desire  your  Honors  to 
look  at  carefully.  In  the  case  of  Mr.  Faulkner,  the  122 
days  is  certainly  a matter  from  which  there  is  no  escape.  The 
other  elements,  I think,  are  fair.  I think  it  is  right  that  he 
should  have  some  compensation  for  them.  I cannot  measure 
them  as  I can  other  things  in  relation  to  this  mill.  They 
must  be  left  to  you.  But  I claim  that  the  court  should  make 
some  allowance  to  him  for  the  winter  deprivation,  — more  or 
less,  as  the  case  may  be,  — from  the  fact  that  he  is  obliged 
to  make  new  appliances,  and  put  in  new  and  larger  steam- 
engines,  boilers,  etc.,  than  he  would  if  it  had  not  been  for 
the  act  of  the  city,  and  the  increased  liability  to  breaking 
down  from  the  use  of  steam-power,  over  and  above  that  re- 
sulting from  the  use  of  water. 

I am  sorry  to  have  detained  your  Honors  so  long ; but  I 
have  been  as  brief  as  I possibly  could  be,  and  go  over  these 
matters  in  such  a manner  as  to  do  justice  to  my  clients. 


Akgument  of  Hon.  J.  G.  Abbott. 


536c 


No.  1. 

24  hours. 
Cu.  ft.  per  sec. 

6 months,  346  miles  of  water-shed,  taking  25  per  cent,  of  rain- 
fall saved,  gives  average  of  10  years  ending  1875  . . . 442.00 

Same  time  for  72.3  miles  taken,  same  rate 91.67 


Amount  left  after  taking 350.33 

Horse-powers. 

8.8  cubic  feet  per  second  on  1-foot  fall,  gives 
1 horse-power,  and  gives  for  the  whole  346 
miles,  on  11-feet  fall,  horse-powers  . . . 562.81  gross. 

For  72.3  miles  taken,  it  gives  gross  horse-powers,  115.36 


For  the  water-shed  left 

From  this  deduct  25  per  cent,  for  waste,  etc. 

447.45 

111.90 

335.55  effective. 

72.3  miles  taken  gives  gross  horse-powers  . 
Deduct,  as  above,  25  per  cent,  for  waste 

115.36  gross. 
28.84 

Gives  effective  horse-powers  .... 

86.52  effective. 

Talbot’s  gates,  by  his  deed,  when  water  below 
bolt,  require 

405.  cub.  ft.  p. 

Amount  required  for  present  works  . 
Faulkner’s 

420.5  cub.  ft. 
57.3 

Amount  left  after  taking 

477.8 

350.3 

Deficiency 

127.5 

If  you  take  78  miles  as  water-shed,  taken  as  by  City  Engineer’s 
report,  it  adds  6.7  cubic  feet  per  second  for  water-shed  taken,  or  98.37 
instead  of  91.67  cubic  feet  per  second,  or  6 horse-powers  net  in 
addition. 


No.  2. 

24  hours. 
Cu.  ft.  per  sec. 

4 months  (June,  July,  August  and  September)  on  346  miles 
water-shed,  taking  20  per  cent,  of  rainfall  saved  for  average 

of  10  years  ending  1875  343.00 

Same  time  for  72.3  miles  taken 71.72 


Amount  of  water  left  after  taking 271.28 


Horse-powers. 

8.8  cubic  feet  of  water  on  1-foot  fall  gives  1 
horse-power,  gross,  and  on  11-feet  fall  for 
whole  346  acres,  gives  gross  horse-powers  . 428.62  gross. 
For  72.3  miles  taken,  it  gives  gross  horse-powers,  89.96  “ 


Horse-powers  for  water-shed  left,  gross  . . 338.86 

Deduct  25  per  cent,  for  waste  to  get  effective 
horse-powers 84.71 


You  have  effective  horse-powers  left  . 


254.15  effective. 


536c? 


Argument  of  Hon.  J.  G.  Abbott, 


Horse-power. 

72.3  miles  taken  gives  gross  horse-powers,  as 

above 89.76 

Deduct  25  per  cent,  for  waste  . . . .22.44 


Gives  for  water-shed  left  effective  horse-powers  . 67.32  effective. 

Talbot’s  gates,  by  deed,  when  water  below  bolt, 
require  . - 405.00  cub.  ft.  p.  sec. 

Talbot’s  present  wheels  require  ....  420.50 
Faulker’s 57.30 


477.80 

Amount  of  water-power  left  after  taking  . . 271.28 


Deficiency 206.52 

If  you  take  water-shed  at  78  miles,  as  per  City  Engineer’s  report, 
instead  of  72.3  miles,  it  gives  77.32  cubic  feet  per  second  instead  of 
71.72,  or  5 net  horse-powers  in  addition. 


No,  3. 

24  hours- 
Cu.  ft.  per  sec. 

June  average  10  years  ending  1875,  346  square  miles  water- 
shed, taking  20  per  cent,  of  rainfall  saved  ....  296.18 

72.3  miles  taken  same  time 61.89 


234.29 


Horse-powers. 

8.8  cubic  feet  per  second  on  1-foot  fall  gives  1 
gross  horse-power,  and  on  11-feet  fall  gives 
for  whole  346  acres  gross  horse-powers  . . 369.6  gross. 

72.3  miles  taken  gives,  gross  ....  77.5 


292.1 

Deduct  25  per  cent,  for  waste,  to  get  effective 
horse-powers 73.0 

Effective  horse-powers 219.3  effective. 


72.3  miles  taken  gives  gross  horse-powers  . 77.5 

Deduct  25  per  cent,  for  waste,  as  above  . . 19.4 


Effective  horse-powers 58.1  effective. 

Talbot’s  gates,  by  his  deeds,  require  when  water 
below  bolt 405.00  cu.  ft.  p.  sec. 


Talbot’s  present  wheels  take  ....  420.50 
Faulkner’s 57.30 


477.80  “ " “ 

. 234.29 


Amount  left  after  taking 
Deficiency  . 


. 243.51 


Akgument  of  Hon.  J,  Gt.  Abbott. 


536e 


No.  4. 


24  hours. 
Cu.  ft.  per  sec. 

July  average  10  years  ending  1875  for  346  miles  water-shed, 


taking  20  per  cent,  of  rainfall  saved 
72.3  miles  taken  gives,  same  time 

• 

. 334.93 
. 69.93 

Amount  left  after  taking 

. 

. 265.00 

8.8  cubic  feet  per  second  on  1-foot  fall  gives  1 
gross  horse-power,  on  11-feet  fall  for  346  acres 
gives  gross  liorse-powers  .... 

72.3  miles  taken  gives  gross  horse-powers  . 

Horse-powers. 

418.00  gross. 
87.47 

Gross  horse-powers  for  water-shed  left 
Deduct  25  per  cent,  for  waste  .... 

330.53 

82.63 

Gives  effective  horse-powers  .... 

247.90 

effective. 

72.3  miles  taken  gives  gross  horse-powers  . 
Deduct,  as  above,  25  per  cent,  for  waste 

87.47 

22.39 

gross. 

Gives  effective  horse-powers  for  land  taken 

65.08 

effective. 

Talbot’s  gates,  by  his  deed,  when  water  below 
bolt  require 

405.00 

cu.  ft.  p.  sec. 

Talbot’s  present  wheels  require  .... 
Faulkner’s 

420.50 

57.30 

Amount  left  after  takin-g 

477.80 

265.00 

Deficiency 

212.80 

No.  5. 

24  hours. 
Cu.  ft.  per  sec. 

August,  for  10  years  ending  1875,  average  for  whole  water-shed, 

346  acres,  at  20  per  cent,  of  rainfall  saved  ....  437.35 

72.3  miles  taken  same  time 91.38 


Amount  of  water  left  after  taking 345.97 

Horse-powers. 

8.8  cubic  feet  per  second,  on  1-foot  fall,  gives  one 
horse-power  gross,  and  on  11-feet  fall  gives  for 

346  miles,  powers 546.4  gross. 

72.3  miles  taken  gives  gross  horse-powers  . . 114.21  “ 


Amount  of  gross  horse-powers  for  water-shed  left,  432. 
Deduct  25  per  cent,  for  waste,  to  get  effective  horse- 
powers   108. 


Effective  horse-powers 324.  effective. 

72.3  miles  taken,  gives,  as  above,  gross  horse- 
powers   114.21  gross. 

Deduct,  as  above,  25  per  cent,  for  waste  . . 28.55  effective. 


Effective  horse-powers  . 


. 85.66 


536/ 


Argument  of  Hon.  J.  G.  Abbott. 


Horse-powers. 

Talbot’s  gates,  as  per  deed,  when  water  below 
bolt,  take 405.  cu.  ft.  p.  sec. 

Talbot’s  present  wheels 420.5  cu.  ft.  p.  sec. 

Faulkner’s 57.3  “ 


477.8 

Amount  after  taking 345.97 


Deficiency 131.83 


* No.  6. 

24  hours. 
Cu.  ft.  per  sec. 

September  average  for  ten  years  ending  1875,  for  346  miles, 

taking  20  per  cent,  of  rainfall  saved 310.62 

72.3  miles  taken  for  same  time 64.78 

Amount  of  water  after  taking 245.84 


Horse-powers. 

8.8  cubic  feet  per  second,  on  1-foot  fall,  gives 
one  gross  horse-power,  and  on  11-feet  fall,  on 
whole  346  miles,  gives  gross  horse-powers  . 387.2  gross 

72.3  miles  gives  gross  horse-powers  . . . 80.96  “ 


306.24  “ 

Deduct  25  per  cent,  for  waste,  to  get  effective 


horse-powers 

76.56 

Effective  horse-powers 

229.68  effective 

72.3  miles  taken  gives  gross  horse-powers  . 
Deduct  25  per  cent,  for  waste,  for  effective  horse- 
powers   . . 

80.96  gross 
20.24  “ 

Effective  horse-powers 

60.72 

Talbot’s  gates,  as  by  his  deed,  when  water  below 
bolt,  require 

405.5  cu.  ft.  p.  sec. 

Talbot’s  present  wheels  require  .... 
Faulkner’s 

420.5  cu.  ft.  p.  sec. 
57.3 

Amount  left  after  taking 

477.8 

245.84 

Deficiency  ........ 

231.96 

No.  7. 

6 months,  25  per  cent,  of  rainfall  saved  : — 

Talbot’s  present  mills  require  cubic  feet  per 

second 420.5 

Add  Faulkner’s  57.3 


Total  required  . 


. 477.8  cu.  ft.  p.  sec. 


Akgument  of  Hon.  J.  G.  Abbott.  536g 


Actual  amount  after  deducting  72.3  miles  . 350.3  cu.  ft.  p.  sec. 
Actual  deficiency 127.5  “ 


Talbot  requires  when  water  below  bolt  . . 405. 

Actual  amount  supplied 350.3 


54.7  deficiency. 


June,  July,  August,  September,  4 months,  at  20 
per  cent,  saved : — 

Talbot’s  wheels  require 420.5 

Faulkner’s 57.3 


477.8 

Actual  amount  supplied  after  deducting  72.3 
miles 271.28 


Deficiency 207.52 

Talbot’s  right  when  water  below  bolt  requires,  405.  cu.  ft.  p.  sec. 
Actual  amount  supplied  after  deducting  72.3 
miles 271.28 


Deficiency 133.72 

June  at  20  per  cent,  saved : — 

Talbot’s  wheels  require 420.5  cu.  ft.  p.  sec. 

Faulkner’s 57.3 


477.80 

Actual  amount  after  deducting  72.3  miles  taken,  234.29 


Deficiency 243.51 

Talbot’s  rights  when  water  below  bolt  requires,  405.  cu.  ft.  p.  sec. 
Amount  actually  furnished  after  taking  . . 234.29 


Deficiency 170.71 

July  at  20  per  cent. : — 

Talbot’s  wheels  require  . . . . . 420.5 

Faulkner’s 57.3 


477.8 

Amount  actually  supplied  after  deducting  72.3 

miles 265. 


Deficiency 212.8 

Talbot’s  right  when  water  below  bolt  requires,  405. 
Actual  amount  furnished  when  72.3  miles  were 
taken 265. 


Deficiency 


. 140. 


536k 


Argument  of  Hon.  J.  G.  Abbott. 


Talbot’s  wheels  require 
Faulkner’s 

. 420.0 
. 57.3 

Amount  furnished  after  taking  . 

477.80 
. 345.97 

Deficiency 

. 131.83 

Talbot’s  rights  when  water  below  bolt  requires,  405. 
Amount  furnished  ......  345. 

Deficiency 

. 60. 

September  at  20  per  cent. : — 
Talbot’s  wheels  require 

. 420.5 

Faulkner’s 57.3 


477.80 


Amount  furnished  after  taking  . 

. 245.84 

Deficiency  .... 

. 231.96 

Talbot’s  rights  when  water  below  bolt 
Amount  actually  furnished 

. 405. 
. 245. 

Deficiency  .... 

. 160. 

Essex  Company’s  Experiments. 

Average  for  5 years ; average  of  6 months,  from 
May  to  October  inclusive,  gives  for  72.3  square 

miles 121.46  cu.  ft.  p.  sec. 

The  rainfall  per  average  10  years  at  the  rate  of 

25  per  cent,  saved,  gives  for  72.3  square  miles  91.6  “ 

Essex  Co.’s  for  4 months,  June,  July,  August  and 

September,  for  5 years,  average  gives  . . 86.76  “ 

The  rainfall  same  time,  taking  saving  at  20  per 

cent,  for  average  of  10  years  gives  . . . 71.72  “ 

Essex  Co.’s  minimum  of  water  for  72.3  miles,  taken  as  testified  by 
Mills,  gives  45  cubic  feet  per  second  for  24  hours,  and  this  only 
for  a very  few  days  in  five  years. 

This  for  12  hours  gives  90  cubic  feet  per  second,  or  84.34  effective 
horse-powers  for  12  hours. 

Rainfall  for  December,  January  and  February,  average  10  years, 
9.97  inches. 

December,  average  10  years 3.040  inches. 

January,  “ “ 3.274  “ 

February,  “ “ 3.668  “ 

9.972  “ 

Average  of  rainfall  for  10  years,  between  50  and  51  inches. 


Argument  of  Hon.  J.  G.  Abbott. 


536/ 


Essex  Co.,  minimum  of  water  as  testified  to  by  Mills  ; and  this  only  for 
a few  days  in  5 years  for  the  72.3  miles  taken,  gives  45  cu.  ft.  per 
second  for  24  hours. 

This  for  12  hours  gives  90  cu.  ft.  per  hour,  or  84.34  net  horse-powers  for 
12  hours. 


Talbot’s  Claim  for  Damages. 

100  horse-powers  engine,  and  ready  to  run,  cost  $20,000. 

Costs  $100  per  year  per  horse-power  to  run  engine. 

Costs  $10  for  depreciation,  or  $110  per  year  for  whole  cost  per  horse- 
power per  year. 

6 months’  cost  of  running, $50  00 

Depreciation  same,  whether  running  the  whole  or  part  of 

the  year 10  00 

Cost  of  running  and  maintaining  per  horse-power  for  6 months,  $60  00 

Yearly  cost  for  each  6 months  for  100  horse-power  engine,  $6,000. 

At  5 per  cent,  this  requires  a capital  of $120,000 

Cost  of  engine,  etc. 20,000 

Injury  to  mill  by  applying  horse-power  ....  10,000 


$150,000 

At  6 per  cent.  $20,000  less,  or  $130,000. 


Faulkner’s  Claim  for  Damages. 

His  power  lost  for  six  months  amounts  to  54  net  horse-powers,  being 
57.3  cubic  feet  per  second  on  11-feet  fall. 

For  the  last  23  years  they  have  used  an  engine  on  an  average  for  32.5 
days  per  year ; for  the  last  11  years,  40.8  days  per  year. 

By  Holmes’s  testimony,  50  horse-power  engine  costs  $13.60  for  coal, 
engineer,  and  oil ; add  25  cents  for  ordinary  repairs,  makes  $13.85  per 
day;  for  an  addition  of  4 horse-powers,  $1.11,  making  for  a 54  horse- 
power engine,  $14.96  per  day. 

Faulkner  is  deprived  of  this  6 months  in  dry  months  ; 6 months,  from 
May  to  October  inclusive,  gives  156  working  days ; deducting  the  aver- 
age of  the  last  11  years,  40.8  days  run  by  steam,  it  leaves  115  days  addi- 
tional days  to  run  by  steam ; or  at  average  for  21  years,  32.5  days,  it 
leaves  123  days  to  be  run  by  steam. 


115  days,  at  $14.96  per  day,  gives  ....  $1,714.14  per  year 
123  “ “ “ 1,834.08 


At  5 per  cent.,  115  days  requires  a capital  of 
“ 123 


$34,283 

36,681 


Add  to  this  some  part  of  cost  of  new  engine  and  larger  one. 
Add  some  part  of  winter  months’  stoppage. 

Add  for  greater  liability  for  stopping  by  breaking  down. 


536; 


Argument  of  Hon.  J.  G.  Abbott. 


Memoranda  of  days  J.  R.  Faulkner  & Co.  have  run  their  mill  at  North 
Billerica  with  steam-power  from  1853  to  1864  inclusive — 12  years. 

1853,  in  July  14|  days 14£ 

1854,  no  steam. 

1855,  in  Aug.,  3 days;  Sept.,  23£ ; Oct.,  15 41| 

1856,  in  July,  2£  ; Aug.,  4 6£ 

1857,  no  steam. 

1858, 

1859,  in  Aug.,  18 18 

1860,  no  steam. 

1861,  in  July,  24£  ; Aug.,  9;  Sept.,  19  ......  52£ 

1862,  in  June,  19£ ; Sept.,  10;  Oct.,  12;  Nov.,  24*;  Dec.,  12.  . 77£ 

1863,  in  March  3 days 3 

1864,  in  June,  2 ; July,  24;  Aug.,  26;  Sept.,  24;  Oct.,  11  . . 87 

300 h 

300  days  in  12  years  average  25  days  per  year. 


Argument  of  Shattuck. 


537 


Boston,  Tuesday,  Oct.  10,  1876,  10.20  A.M. 
THE  STERLING  MILL,  PARKER,  WILDER  & CO., 
PETITIONERS  FOR  ASSESSMENT  OF  DAMAGES, 
vs.  THE  CITY  OF  BOSTON. 

Opening  Argument  of  George  O.  Shattuck,  Esq.,  for 
the  Petitioners. 

This  is  the  case  of  the  Sterling  Mills,  of  Marshall  P.  Wil- 
der and  others.  The  peculiarity  of  this  case  as  suggested  by 
the  counsel  for  the  city,  at  the  view,  is,  that  it  is  based 
on  lease,  but  it  is  a lease  for  the  term  of  fifty  years  from  the 
first  day  of  January,  1865,  so  that  it  had  on  the  first  day  of 
January,  1875,  forty  years  to  run.  I do  not  represent  the 
owner  of  the  reversion,  and  therefore  we  shall  be  entitled  to 
recover  the  value  of  the  damage  to  the  leasehold  for  the  term 
of  about  forty  years,  which,  I suppose,  will  be  between 
ninety  and  a hundred  per  cent,  of  the  whole  value.  The 
petition  is  in  the  usual  form.  I have  the  petition  and 
answer.  The  answer  is  similar  to  the  answer  in  the  other 
cases. 

Commissioner  Russell.  We  will  print  the  petition  and 
the  answer,  if  you  please. 

To  the  Honorable  the  Justices  of  the  Superior  Court , within  and  for 
the  County  of  Middlesex : — 

Respectfully  represent  your  petitioners  Marshall  P.  Wilder,  Ezra 
Farnsworth,  William  H.  Wilder,  all  of  Boston,  in  the  County  of 
Suffolk  and  Commonwealth  of  Massachusetts ; Benjamin  Phipps, 
Jr.,  of  Chelsea,  in  said  County  of  Suffolk;  Samuel  B.  Rindge  and 
William  H.  Sherman,  both  of  Cambridge,  in  said  County  of  Mid- 
dlesex; and  John  Byers  and  Ezra  Farnsworth,  Jr.,  both  of  the 
city,  county  and  State  of  New  York,  doing  business  as  copartners 
under  the  firm  name  of  Parker,  Wilder  & Company  ; that  the  said 
Marshall  P.  Wilder,  Ezra  Farnsworth,  Samuel  B.  Rindge,  William 
II.  Wi’der,  Benjamin  Phipps,  Jr.,  and  John  Byers  were  on  the 
eighth  day  of  April,  A.D.  1872,  associated  together  as  copartners 
under  the  firm  name  of  Parker,  Wilder  & Company,  and  so  con- 
tinued until  the  first  day  of  June,  A.D.  1873,  and  during  that  time 
were  the  owners  of  the  unexpired  residue  of  a term  of  fifty  years, 
ending  on  the  first  day  of  January,  A.D.  1915  (renewable  at  their 
pleasure  as  hereinafter  set  forth),  of  and  in  the  real  estate  and 
right,  privilege  and  easement  to  take  water  hereinafter  described. 
And  on  said  first  day  of  June,  A.D.  1873,  they  associated  with 


538 


Sterling  Mill. 


themselves  as  copartners  under  said  firm  name,  said  Ezra  Farns- 
worth, Jr.,  and  said  William  H.  Sherman,  and  that  said  Ezra 
Farnsworth,  Jr.,  and  W.  H.  Sherman,  at  the  same  time,  became 
jointly  and  equally  interested  with  tne  other  petitioners  above 
named,  in  said  term  of  years  and  right,  privilege  and  easement  to 
take  water,  and  that  ever  since  said  first  day  of  June,  A.D.  1873, 
your  petitioners  have  been  and  now  are  the  owners  of  the  unexpired 
residue  of  said  term  of  fifty  years  [renewable  at  the  pleasure  of 
your  petitioners,  at  a rent  not  exceeding  six  per  cent,  on  the  ap- 
prised value  of  the  said  real  estate  and  water  right,  not  including 
buildings,  structures  or  improvements,  made  after  the  ninth  day  of 
July,  A.D.  1864],  of  and  in  a certain  parcel  of  land  situated  in 
said  Lowell,  near  the  Concord  river  and  upon  both  sides  of  River- 
meadow  Brook,  near  the  mouth  of  the  same  and  thus  described, 
viz. : Beginning  at  the  northwesterly  corner  of  the  premises  at  a 

stake  in  the  ground  thirty  feet  easterly  from  the  northeasterly 
corner  of  land  of  Smith,  Meadowcroft  and  Sherman,  in  the  range 
of  their  northerly  line,  said  point  being  upon  the  southerly  side  of 
a street  running  from  Lawrence  street  along  the  northerly  line  of 
their  land  ; thence  southeasterly  ninety-two  feet,  at  a right  angle 
with  said  street ; thence  at  a right  angle  northeasterly,  ten  feet ; 
thence  at  a right  angle  southeasterly,  one  hundred  and  thirty  feet ; 
thence  at  a right  angle  northeasterly,  forty  feet ; thence  at  a right 
angle  southeasterly,  fifty  feet ; thence  at  a right  angle  north- 
easterly, one  hundred  feet ; thence  at  a right  angle  northwesterly, 
fifteen  feet ; thence  at  an  angle  of  about  seventy-five  degrees 
westerly,  one  hundred  and  four  feet ; thence  at  a right  angle 
northerly,  eighty-seven  feet ; thence  at  an  angle  of  about  one 
hundred  and  thirty-one  degrees  northwesterly,  ninety-two  feet ; 
thence  at  an  angle  of  about  one  hundred  and  fifty  degrees  westerly, 
seventy-seven  feet ; thence  at  an  angle  of  about  two  hundred  and 
twenty-eight  degrees,  thirty  minutes  northwesterly,  ninety-six. 
feet  to  a street ; thence  on  said  street  at  an  angle  of  about  one 
hundred  and  seven  degrees,  one  hundred  and  thirty-two  feet  to  the 
point  of  beginning : containing  fifty-five  thousand  four  hundred 
and  sixty  square  feet,  more  or  less. 

2.  And  your  petitioners  further  represent  that  they  have  been 
and  are  owners  for  the  same  times  upon  the  same  terms,  and  in  the 
same  proportions  and  manner  as  hereinbefore  set  forth,  as  to  said 
land,  of  an  unexpired  residue  of  a term  of  fifty  years,  renewable 
as  aforesaid,  of  and  in  a valuable  right,  privilege  and  easement 
connected  with  the  use  of  said  land,  to  take  water  from  the  Con- 
cord river  in  said  Commonwealth,  through  a canal  now  or  formerly 
of  Oliver  M.  Whipple,  of  said  Lowell,  lying  southerly  of  your 
petitioners’  said  land,  to  an  amount  equal  to,  but  not  exceeding, 
thirty-six  cubic  feet  per  second,  for  eleven  and  one  quarter  hours 
per  day  for  six  days  of  the  week,  except  when  the  water  in  said 
canal  does  not  equal  two  hundred  and  eighty-eight  cubic  feel  per 
second,  during  the  time  aforesaid,  and  then  and  at  such  times  to  an 
amount  equal  to,  but  not  exceeding,  one-eighth  of  the  quantity  of 
water  in  said  canal,  and  the  water  in  said  canal  has  always  equalled 
and  would  always  equal,  except  in  very  unusual  and  rare  instances, 


Petition. 


539 


two  hundred  and  eighty-eight  cubic  feet  per  second,  but  for  the 
taking,  withdrawal,  diversion  and  obstruction  of  the  same  herein- 
after set  forth. 

3.  And  your  petitioners  further  represent,  that  they  now  are 
and  have  been  the  owners,  and  in  possession  for  the  same  time  and 
in  the  same  proportions  hereinbefore  set  forth  with  regard  to  said 
real  estate,  of  a large  mill  or  factory  situated  upon  said  land,  and 
containing  a large  number  of  sets  of  costly  machinery,  each  adapted 
to,  and  used  for,  the  manufacture  of  flannels,  which  said  mill  or 
factory,  and  sets  of  machinery  were  all  erected  at  great  cost,  for 
the  purpose  of  using  the  aforesaid  right,  privilege  and  easement  to 
take  water,  and  together  with  said  term  of  years  and  property  are 
wholly  dependent  for  their  value  upon  the  said  water,  which  your 
petitioners  have  the  right  to  take,  as  aforesaid  — by  which  alone 
said  mill  or  factory  and  machinery  can  be  used. 

4.  And  your  petitioners  further  represent  that  Sudbury  river,  so 
called,  in  said  Commonwealth,  is  one  of  the  natural  sources  and 
tributaries  of  said  Concord  river,  and  the  waters  thereof  are  the 
principal  means  of  supply  of  said  Concord  river  and  that  the 
waters  of  said  Sudbury  river,  when  undisturbed  and  unobstructed, 
and  left  to  their  natural  course  and  current,  flow  into  said  Concord 
river,  above  said  land  and  mill  or  factory  of  your  petitioners,  and 
with  the  waters  of  said  Concord  river,  have  been  accustomed  to, 
and  of  right  ought  to,  flow  through  the  canal  aforesaid,  and  to  pass 
by  and  through  the  said  land  and  mill  or  factory,  and  furnish  the  water- 
power on  which  said  mill  or  factory  and  machinery  are  dependent 
for  their  use  and  value  as  aforesaid.  And  your  petitioners  are  en- 
titled to  have  their  said  share,  viz.,  thirty-six  cubic  feet  per 
second,  of  the  water  in  said  canal,  undiminished  and  unabated. 
And  your  petitioners,  if  deprived  of  the  right  to  the  waters  of  said 
Sudbury  river,  flowing  as  aforesaid,  would  lose  substantially  the 
whole  of  their  said  right,  privilege  and  easement  in  the  waters  of  the 
said  Concord  river  and  in  said  canal,  and  the  value  of  their  said 
property,  term  of  years,  mill  or  factory,  and  machinery,  would  be 
greatly  reduced. 

5.  And  your  petitioners  further  represent  that  under,  by  virtue 
of,  in  accordance  with,  and  for  the  purposes  of  an  act  of  the 
Legislature  of  the  Commonwealth  of  Massachusetts,  passed  on  the 
eighth  day  of  April,  A.D.  1872,  entitled  “ An  act  to  authorize  the 
City  of  Boston  to  obtain  an  additional  supply  of  pure  water,”  and 
by  and  through  the  agency  ordained  by  said  act,  the  City  of  Bos- 
ton, in  the  County  of  Suffolk,  in  said  Commonwealth,  within  three 
years  last  past,  previous  to  the  filing  of  this  petition,  has  taken  all 
the  water  of  said  Sudbury  river,  at  and  above  the  dam  built  by  the 
City  of  Boston  in  1872,  five  hundred  feet,  more  or  less,  below  the 
crossing  of  the  said  Sudbury  river,  by  the  Boston,  Clinton  & 
Fitchburg  Railroad,  in  the  town  of  Framingham  in  the  County  of 
Middlesex,  and  near  the  brook  which  is  the  outlet  from  Farm  pond 
into  said  river,  and  all  the  water  in  the  said  dam  to  the  source  or 
sources  of  said  river ; also  all  the  water  in  Farm  pond,  so  called, 
in  said  town  of  Framingham,  and  all  the  water  in  the  brook  con- 
necting Farm  pond  with  the  Sudbury  river ; also  all  the  water  in 


540 


Sterling  Mill. 


all  streams,  brooks  and  rivulets,  or  water-courses  of  any  kind, 
■whether  natural  or  artificial,  that  may  flow  into  or  from  said  Farm 
pond,  and  into  or  from  said  Sudbury  river,  at  any  point  or  points 
above  said  dam  ; subject  to  the  restrictions  set  forth  in  Section  4 
of  Chapter  177  of  the  Laws  of  1872,  with  reference  to  said  water. 
To  have  and  to  hold  the  said  waters  to  the  said  City  of  Boston, 
and  its  successors  and  assigns,  to  its  and  their  sole  use  and 
behoof,  agreeably  to  the  provisions  of  the  said  act  of  the  year 
eighteen  hundred  and  seventy-two.  And  the  said  city  has  taken 
the  whole  right,  title  and  interest  in  said  waters,  and  has  become 
the  sole  and  absolute  owner  of  the  same,  subject  to  the  restrictions 
aforesaid.  And  by  and  as  a part  of  the  aforesaid  taking,  the  said 
city  has  taken  and  your  petitioners  have  been  deprived  of  sub- 
stantially the  whole  of  their  said  right,  privilege  and  easement,  to 
take  water  from  said  Concord  river,  and  the  value  of  their  said 
property,  term  of  years,  mill  or  factory,  and  machinery  has  been 
greatly  reduced. 

6.  And  your  petitioners  further  say  that  said  City  of  Boston  by 
the  authority  and  agency,  and  for  the  purposes  hereinbefore  set 
forth,  and  within  three  years  last  past,  from  the  day  of  the  date  of 
this  petition,  has  first  actually  withdrawn,  diverted  and  obstructed, 
and  has  ever  since  continued,  and  still  continues  and  intends 
henceforth  to  withdraw,  divert  and  obstruct  the  waters  of  said 
Sudbury  river,  and  said  other  waters  in  the  fifth  paragraph  of  this 
petition  described,  from  and  in  what  has  always  been  heretofore, 
and  what  would  have  always  been  hereafter,  their  natural  and 
accustomed  flow  into  and  through  said  Concord  river,  and  by, 
through  and  over  the  aforesaid  land,  and  mill  or  factory  of  j^our 
petitioners.  All  of  which  past,  present  and  intended  withdrawals, 
diversions  and  obstructions  are  against  the  rights  of  your  petition- 
ers, and  have  deprived  and  will  henceforth  deprive  your  petitioners 
of  the  water-power  to  which  they  are  entitled  as  aforesaid,  and 
have  greatly  diminished,  and  will  henceforth  greatly  diminish  or 
destro}',  the  value  of  your  petitioners’  rights  in  the  same,  and  in 
said  property,  term  of  years,  mill  or  factory,  or  machinery. 

7.  And  your  petitioners  further  represent  that  by  reason  of  said 
taking  of  the  waters  of  said  Sudbury  river,  and  the  other  waters 
aforesaid,  and  by  reason  of  said  past,  present  and  intended, 
withdrawals,  diversions  and  obstructions  ; and  by  reason  of  all  the 
acts,  matters  and  things  of  said  City  of  Boston  and  its  agents 
hereinbefore  set  forth,  your  petitioners  have  suffered  great  damage 
in  their  property,  and  that  they  have  not  agreed  and  have  not  been 
able  to  agree  with  the  said  City  of  Boston,  upon  the  damages  to  be 
paid  therefor,  and  that  said  city"  has  not  offered  to  pay  them  as 
such  damages  any  sum  whatever. 

Wherefore,  your  petitioners  (not  waiving  any  right  to  take  ad- 
vantage b}^  petition  for  a writ  of  certiorari  or  otherwise,  of  the 
great  and  manifold  errors  and  irregularities  in  the  aforesaid  acts 
and  proceedings,  but  expressly  reserving  the  right  so  to  do),  pray 
for  the  assessment  of  the  damages  by  it  sustained  as  aforesaid, 
and  for  such  other  relief  as  your  petitioner  may  be  entitled  to  have 


Petition. 


541 


in  this  court,  and  for  a summons  to  said  City  of  Boston  conformably 
to  the  statutes  in  such  case  made  and  provided. 

MARSHALL  P.  WILDER, 
SAMUEL  B.  RINDGE, 
WILLIAM  H.  SHERM1IN, 
JOHN  BYERS, 

EZRA  FARNSWORTH,  Jr. 
EZRA  FARNSWORTH, 

BENJ.  PHIPPS,  Jr. 

WM.  H.  WILDER, 

By  their  Attorney , O.  W.  HOLMES,  Jr. 

SHATTUCK,  HOLMES  & MONROE, 

Attorneys  and  of  Counsel. 


COMMONWEALTH  OF  MASSACHUSETTS. 

Middlesex , ss. 

Marshall  P.  Wilder  et  als.,  Petitioners  for  Damages  against 
the  City  of  Boston. 

1.  And  now  come  said  City  of  Boston,  and  for  answer  to  the 
allegations  of  said  petitioners  say,  that  they  admit  it  to  be  true,  as 
therein  averred,  that  the  petitioners  were  in  possession  of  the  land 
therein  described  at  the  times  therein  set  forth  ; but  said  defendants 
deny  that  the  petitioners  were  the  lawful  owners  of  the  water-power 
therein  described,  and  require  them  to  make  such  proof,  as  they 
are  advised,  of  the  ownership  of  such  water-power  on  the  Concord 
river. 

2.  And  the  defendants,  further  answering,  admit  that  the  Sud- 
bury river  is  one  of  the  branches  and  tributaries  of  said  Concord 
river,  and  the  waters  thereof,  and  the  streams  running  into  the 
same  would  naturally  flow  into  said  Concord  river,  and  flow  into 
and  make  a part  of  a head  of  water  raised  by  a dam  at  Lowell,  as 
set  forth  in  said  Wilder,  and  others’  petition. 

3.  The  defendants,  further  answering,  aver  that  said  Wilder, 
et  als.,  do  not  own  any  rights  in  said  water-power,  except  it  may 
be  certain  indefinite  rights  in  common  with  other  parties  who  have 
suffered  damages  jointly  with  them,  if  any,  by  the  alleged  taking, 
or  any  taking  of  the  water  of  Sudbury  river  by  the  City  of  Boston, 
and  the  defendants  claim  that  this  petition  for  damages  for  the 
taking  of  the  water  of  Sudbury  river  by  said  Boston,  under  and  by 
virtue  of  the  act  of  the  Legislature,  as  set  out  in  the  petition, 
should  have  been  brought  by  the  petitioners  jointly  with  the 
Wamesit  Power  Company,  the  Lowell  Bleachery,  Samuel  N.  Woods, 
Jonathan  Hope,  Robert  H.  Butcher,  James  Minter,  the  Belvidere 
Woollen  Manufacturing  Company,  C.  B.  Snyder,  Luther  W. 
Faulkner,  and  others  to  the  defendants  unknown,  who  claim  to  owm 
rights  in  said  water-power,  subject  to  certain  rights,  reservations 
and  conditions  therein,  who  are  all  jointly  owners,  or  jointly  in- 
terested in  common,  and  not  in  severalty  in  said  water-power  with 


542 


Sterling  Mill. 


said  petitioners  ; and  said  petition  of  said  Wilder,  et  als.,  if  it  may 
be  sustained  at  all,  should  be  jointly  with  the  other  owners,  in 
common  of  said  waters  and  water-power,  who  claim  damages 
against  city,  because  of  the  taking  of  said  water,  and  not  severally 
by  each,  because  the  defendants  say  that  the  water-power  of  said 
Concord  river,  at  said  Lowell,  being  undivided,  it  would  be  exceed- 
ingly burdensome  and  expensive  to  said  defendants  to  be  called 
upon  to  divide  and  show  how  the  taking  of  said  water  of  Sudbury 
river  would  affect  the  owners  and  claimants  of  the  water  severally, 
so  as  to  protect  themselves  against  the  several  claims  of  each  own- 
er therein.  And  they  therefore  pray  the  Court  that  this  petition 
may  be  dismissed  for  non-joinder  of  the  other  owners  of  said  water- 
power, or  that  all  the  owners  of  any  rights  in  said  water-power, 
created  by  said  dam  at  said  Lowell,  may  be  ordered  to  come  in  and 
join  as  parties  in  said  petition,  so  that  there  shall  be  but  one  assess- 
ment of  damages  for  one  act  of  taking  by  said  city  of  said  water, 
and  for  a joint  injury  thereby  to  said  water-power  owned  by  the 
parties  aforesaid  at  said  Lowell. 

4.  And  the  defendants,  further  answering,  deny  that  they  have 
taken  and  diverted  and  withdrawn  any  of  the  waters  of  Sudbury 
river  before  the  filing  of  said  petition  under  the  authority  conferred 
by  said  act,  set  forth  in  said  petition,  in  the  manner  and  form 
therein  set  forth,  or  otherwise  by  said  city  acting  under  and  by 
virtue  of  the  authority  of  said  act. 

5.  And  the  defendants,  further  answering,  say  that  said  peti- 
tioners, and  the  owners  of  said  water-power  at  said  Lowell,  on  the 
Concord  river,  are  not,  and  will  not  be  damnified  by  the  taking  of 
the  water  of  Sudbury  river  under  said  act,  nor  do  they  have  any 
right  therein  or  thereto,  because  they  say  that  by  the  act  of  the 
General  Court  of  Massachusetts,  passed  June  22,  1793,  to  which, 
with  the  acts  additional  thereto,  the  defendants  beg  leave  to  refer 
as  part  of  their  answer,  certain  persons  therein  named  were  incor- 
porated by  the  name  of  the  Proprietors  of  the  Middlesex  Canal,  as 
a perpetual  corporation  for  the  sole  object  of  uniting  the  waters  of 
the  Merrimack  river  in  said  Middlesex  county,  with  the  waters  of 
the  Medford  river  and  Charles  river  in  said  county,  by  cutting  a 
canal  for  that  purpose,  “ provided  that  whereas  it  maybe  necessary 
in  the  prosecution  of  the  foregoing  business  that  the  property  of 
private  persons  may,  as  in  the  case  of  highways,  be  appropriated 
to  public  use.” 

It  was  also  enacted  therein  that  in  the  case  where  any  person 
shall  be  damaged  in  his  property  by  said  proprietors  in  anjr  manner, 
if  said  proprietors  do  not  make  or  tender  reasonable  satisfaction  to 
the  acceptance  of  the  person  damaged  by  them,  such  person  may 
apply  within  one  year  for  a committee  to  estimate  the  damages  so 
done,  and  such  proceedings  shall  be  had,  that  a committee  should 
be  appointed  to  estimate  the  damages  and  make  return  thereof  to 
the  next  Court  of  General  Sessions  of  the  Peace,  and  that  ex- 
ecution should  issue  thereon  with  a right  of  appeal  to  a jury  for  an 
increase  of  said  damages. 

And  the  jury  or  committee,  as  the  case  might  be,  were  empowered 
to  give  either  a sum  in  gross  for  damages,  or  annual  damages 


Petition. 


543 


during  the  continuance  of  said  damage,  and  when  the  party  injured 
was  to  have  judgment  and  execution  thereof. 

And  it  was  also  further  enacted  that  the  proprietors  were  author- 
ized and  empowered  to  purchase  and  hold  to  themselves  and  tlieir 
successors  forever,  so  much  land  and  real  estate  as  may  he  necessary 
for  the  purpose  aforesaid,  not  exceeding  the  value  of  five  thousand 
pounds  ; “ provided  that  no  water-course  shall  be  turned  or  altered, 
where  any  mill  is  erected,  so  as  to  injure  such  mill,  without  license 
therefor  first  had  and  obtained  from  the  General  Sessions  of  the 
Peace  in  the  county  through  which  said  water-course  may  pass. 
And  that  the  said  Court,  on  application  made  to  it  by  said  pro- 
prietors, shall  observe  the  same  rules  as  are  now  prescribed  by  law 
when  application  is  made  to  them  for  granting  a public  highway.” 

And  the  defendants  further  say  that  by  an  act  in  addition  to  the 
act  above  referred  to,  passed  on  the  28th  day  of  February  in  the 
year  1795,  it  was  enacted  that  “ the  property  of  said  proprietors  in 
said  canal,  and  in  any  other  canal  connected  therewith  which  they 
shall  effect  pursuant  to  the  authority  of  the  government,  and  all 
real  estate  of  said  corporation  of  which  the  said  corporation  shall  be 
seized,  shall  be  divided  into  eight  hundred  shares,”  which  were  to 
be  personal  property  for  certain  purposes  only  ; and  it  was  further 
therein  enacted  by  the  second  section  of  said  act  “ that  said  cor- 
poration shall  have  power  to  receive  and  hold  real  estate  as  append- 
ant to  said  canal,  and  for  the  purpose  of  facilitating  its  business , to 
the  sum  of  £30,000,  over  and  above  the  value  of  the  canal  itself, 
simply  considered  and  they  were  further  empowered  to  make  the 
waters  of  the  Concord  river  boatable  as  far  as  Sudbury  causeway, 
and  as  much  further  as  the  same  can  be  usefully  improved  for  that 
end  ; and  to  open  any  canal  in  any  place  in  said  County  of  Middle- 
sex that  may  be  necessary  to  connect  the  Concord  river  with  said 
Middlesex  Canal  for  that  purpose,  and  that  the  proprietors  shall  be 
liable  to  have  damages  recovered  against  them  by  any  individual 
who  shall  be  injured  or  damnified  in  his  property  in  such  new  canal, 
by  the  same  mode  of  process  and  in  the  same  manner  as  is  in  the 
same  act  provided. 

And  said  defendants,  further  answering,  say  that,  under  said 
act  of  incorporation,  surveys  being  made,  it  was  found  impossible, 
without  great  and  inordinate  expense,  to  take  the  waters  of  the 
Merrimack  river  through  a canal  to  unite  with  the  waters  of  the 
Medford  river  near  said  Boston,  because  it  appeared  that  the  waters 
of  said  Merrimack  river,  at  a point  where  they  were  to  come  into 
said  canal,  were  some  twenty  or  more  feet  lower  than  the  waters 
of  the  Concord  river  at  said  Billerica,  at  the  point  where  said  canal 
must  pass  the  same. 

And  the  defendants,  further  answering,  say,  that  by  an  act,  in 
addition  to  the  several  acts  respecting  the  proprietors  of  the 
Middlesex  Canal,  passed  June  25,  1798,  it  appears  that  “ whereas 
by  an  act  passed  February  28th,  1795,  it  is  provided  and  enacted 
that  the  corporation  of  the  said  Middlesex  Canal  shall  be  empowered 
to  hold  real  estate,  as  appendant  to  said  canal,  for  the  purpose  of 
facilitating  the  business  of  the  same  to  the  value  of  30,000  pounds 
over  and  above  the  value  of  the  canal  itself.  And  the  proprietors 


544 


Sterling  Mill. 


of  said  canal,  having  expressed  their  doubts  whether  in  virtue  of 
said  act  they  may  erect  and  hold  mills  on  the  same  canal,  and  on 
the  waters  with  which  it  is  or  shall  be  connected  ; it  is  enacted  that 
the  corporation  of  the  Middlesex  Canal,  or  the  proprietors  of  said 
canal,  in  their  corporate  capacity,  shall  be  empowered  to  purchase 
and  hold  any  mill  seats  on  the  waters  connected  with  the  same 
canal,  and  lands  to  accommodate  the  same,  and  thereon  to  erect 
mills.” 

And  the  defendants,  further  answering,  say,  that  by  an  act, 
in  addition  to  the  several  acts  passed  respecting  the  Middlesex 
Canal,  passed  January  26,  1800,  it  is  recited  “ that  the  proprietors 
of  the  canal  have  in  their  petition  set  forth  that  from  a reservation 
in  the  acts  already  passed  in  their  favor,  the  government  has  a 
right  to  regulate  the  toll  of  goods  carried  on  the  canal  anew  after 
the  expiration  of  forty  years,  from  which  provision  great  discour- 
agements and  embarrassments  have  resulted  in  the  execution  of 
that  project ; therefore  be  it  enacted  that  a toll  of  one-sixteenth 
part  of  a dollar  for  each  ton  carried  one  mile  on  the  same  canal  be 
established  for  said  proprietors  and  their  successors  forever.” 

And  that  afterwards,  by  an  act,  in  further  addition  to  the  acts 
incorporating  the  proprietors  of  the  Middlesex  Canal,  passed  March 
2,  1803,  said  proprietors  were  allowed  the  term  of  three  years  from 
and  after  the  2 2d  day  of  June  the  next,  to  complete  the  same  canal 
to  Charles  river,  and  to  effectuate  means  of  communication  between 
said  canal  and  the  town  of  Boston  across  said  Charles  r iver  by 
boats,  and  were  allowed  the  further  term  of  six  years  to  render 
Concord  river  boatable  and  navigable,  and  for  cutting  their  canals 
in  the  County  of  Middlesex. 

And  the  defendants,  further  answering,  say  that  in  1798,  after 
the  passage  of  said  act  of  that  year,  the  proprietors  of  the  Middle- 
sex canal  purchased  said  mill  privileges  on  the  Concord  river  at 
Billerica,  and  erected  a dam  for  the  purpose  of  raising  a head  of 
water  to  supply  their  canal,  using  the  surplus  to  operate  their  mills, 
the  grist-mill  formerly  on  said  stream  having  the  first  right ; that 
in  1804  they  completed  their  canal  from  Merrimack  river  to  Charles 
river,  and  opened  it  for  public  navigation,  taking  toll  therefor, 
using  the  head  of  water  so  raised  in  Concord  river  to  feed  their 
canal,  and  the  surplus,  whenever  any  there  was,  to  run  their  said 
mills. 

And  the  defendants,  further  answering,  say,  that  in  1826,  finding 
their  dam  insufficient  to  raise  the  water  for  their  purposes,  said 
proprietors  built  a new  and  more  permanent  dam  in  connection 
with  the  old  one,  which  is  the  dam  now  maintained  by  said 
Faulkner  and  others,  the  petitioners  for  damages  against  said  city. 

And  the  defendants,  further  answering,  say  that  from  the  year 
1804  down  to  the  year  1851,  the  proprietors  carried  on  their  canal, 
using  in  the  dry  seasons  of  the  year  all  the  water  of  the  river  for 
keeping  up  the  navigation  on  their  canal,  and  the  surplus  for  their 
own  mills,  the  canal  retaining  the  first  right  thereto,  and  said  pro- 
prietors claim  to  hold  and  have  the  right  to  use  all  the  water  of  said 
Concord  river  for  the  purposes  of  navigation,  and  the  rights  of  the 
pubic  therein  until  the  same  may  be  lawfully  discontinued ; and 


Petition. 


545 


that  afterwards  they  applied  for  leave  to  wind  up  their  affairs  to 
the  Supreme  Judicial  Court  sitting  in  and  for  the  County  of  Suffolk, 
which  leave  was  refused  and  their  petition  dismissed,  and  said  cor- 
poration still  exists  and  holds  all  said  water  for  a public  use. 

And  the  defendants,  further  answering,  say  that  all  the  water  of 
the  Concord  river,  including  that  of  Sudbury  river,  was  taken,  held 
and  appropriated  forever  for  a public  use  ; to  wit,  to  be  diverted 
from  said  Concord  river,  and  was  so  diverted  into  Charles  river, 
and  into  Merrimack  river,  to  furnish  means  of  navigation  in  a public 
canal,  opening  above  said  dam  at  Lowell,  to  wit,  at  Billerica,  and 
that  damages  were  paid  for  such  public  use  of  said  water,  to  all 
persons  having  any  right  therein,  and  injured  by  such  diversion, 
and  especially  to  those  under  whom  the  petitioners  claim. 

And  the  defendants,  further  answering,  say  that  the  proprietors 
of  said  Middlesex  Canal  had  not,  under  their  charter  and  the  several 
acts  in  addition  thereto,  any  right  or  power  to  sell  or  convey  or 
assign  any  right  to  any  person  whomsoever,  to  use  said  water  as 
against  any  other  public  use  of  the  same,  which  taking  of  said 
water  by  the  City  of  Boston  is  for  a public  use. 

And  said  defendants,  further  answering,  say  that  said  water  of 
the  Concord  river  was,  in  the  manner  and  for  the  purposes  and  use 
aforesaid,  and  by  the  proprietors  of  said  canal,  taken,  used  and  di- 
verted from  the  Concord  river  during  the  greater  part  of  the  year, 
and  especially  in  the  dry  season  thereof  (when  alone  said  petition- 
ers would  or  could  suffer  any  loss  or  damage  by  the  taking  of  the 
waters  of  Sudbury  river),  at  Billerica,  into  said  canal  to  Charles 
and  Merrimack  river,  the  said  Concord  river  being  used  at  said 
Billerica,  which  is  a point  four  miles  above  the  dam  at  said  Lowell, 
as  a feeder  to  said  canal.  And  that  the  quantity  of  water  so  taken 
and  diverted  was  at  all  times  much  greater  than  the  whole  natural 
flow  of  water  received  into  said  Concord  river  from  said  Sudbury 
river. 

And  that  those  under  whom  said  petitioners  claim  to  hold  said 
water-power  received  compensation  for  all  damages  sustained  to 
said  mill-privileges  and  dam  and  water-power  at  said  Lowell  by 
reason  of  the  taking  and  diversion  of  said  water  for  public  use ; 
and  the  petitioners  are  not  entitled  again  to  receive  damages  for 
any  diversion  of  said  water  for  any  other  public  use. 

Wherefore  the  defendants  ask  to  be  dismissed  of  this  petition, 
and  go  thereof  without  day,  and  for  their  reasonable  costs  in  this 
behalf  sustained. 

BENJAMIN  F.  BUTLER, 
Attorney  and  of  Council  for  the  City  of  Boston. 

Mr.  Shattuck.  The  original  grant  to  the  party  who 
holds  the  reversion,  or  whose  representatives  hold  the  rever- 
sion, is  contained  in  a deed  made  by  Oliver  M.  Whipple,  of 
Lowell,  to  Joshua  Mather,  dated  the  18th  day  of  May, 
1857.  These  rights  must  depend  upon  the  paper  titles, 
because  they  have  not  been  used  for  twenty  years,  and 
therefore  in  the  trial  we  shall  proceed  upon  the  strength  of 


546 


Sterling  Mill. 


the  paper  titles.  I say  this,  because  if  the  matter  is  gone 
into,  it  will  appear  that  some  mill-owners  have  their  flumes 
lower  than  others,  ancl  probably  get,  some  of  them,  an  undue 
proportion  of  the  writer.  Some  of  them,  for  instance,  the 
Bolt  Company,  and  some  other  mills  have  their  flumes 
higher,  and  some  of  them  have  them  lower. 

Mr.  Butler.  Yours  is  the  lowest  of  all. 

Mr.  Shattuck.  I believe  the  Sterling  mill  is  the  lowest 
of  all. 

Mr.  Butler.  The  Sterling  mill  flume  is  so  arranged  that 
you  can  draw  longer  than  anybody  else.  That  is  the  exact 
condition  of  things. 

Mr.  Shattuck.  But,  as  I say,  they  all  depend  upon  the 
paper  titles  now,  and  of  course  they  may  be  adjusted  at 
any  time  until  rights  have  been  acquired  by  adverse  use  by 
the  parties.  We  must  proceed  of  course  and  prove  the  title, 
and  all  of  these  mills  upon  the  Wamesit  dam,  depend  upon 
a grant  which,  I believe,  is  in  the  same  terms,  and  which  I 
will  now  read  : — 

Know  all  men  by  these  Presents , that  I,  Oliver  M.  Whipple,  of 
Lowell,  in  the  County  of  Middlesex,  and  Commonwealth  of  Massa- 
chusetts, in  consideration  of  fifteen  thousand  dollars  to  me  paid  by 
Joshua  Mather,  of  the  same  Lowell,  the  receipt  of  which  sum  is 
hereby  acknowledged,  do  hereby  give,  grant,  bargain,  sell,  and 
convey  unto  the  said  Joshua  Mather  a certain  parcel  of  land  situ- 
ate in  said  Lowell,  near  the  Concord  river,  and  upon  both  sides  of 
River  Meadow  brook,  near  the  mouth  of  the  same,  and  thus  de- 
scribed, viz. : — 

Beginning  at  the  northwesterly  corner  of  the  premises,  at  a stake 
in  the  ground  thirty  feet  easterly  from  the  northeasterly  corner  of 
land  of  Smith,  Meadowcroft  and  Sherman,  in  the  range  of  their 
northerly  line,  said  point  being  upon  the  southerly  side  of  a 
street  running  from  Lawrence  street  along  the  northerly  line  of 
their  land,  thence  southeasterly  ninety-two  feet  at  a right  angle 
with  said  street,  thence  at  a right  angle  northeasterly  ten  feet, 
thence  at  a right  angle  southeasterly  one  hundred  and  thirty  feet, 
thence  at  a right  angle  northeasterly  forty  feet,  thence  at  a right 
angle  southeasterly  fifty  feet,  thence  at  a right  angle  northeasterly 
one  hundred  feet,  thence  at  a right  angle  northwesterly  fifteen 
feet,  thence  at  an  angle  of  about  75°  westerly  one  hundred  and 
four  feet,  thence  at  a right  angle  northerly  eight}r-seven  feet,  thence 
at  an  angle  of  about  131°  northwesterly  ninety-two  feet,  thence  at 
an  angle  of  about  150°  westerty  seventy-seven  feet,  thence  at  an 
angle  of  about  228°  30'  northwesterly  ninety-six  feet  to  a street, 
thence  on  said  street  at  an  angle  of  about  107°  one  hundred  and 
thirty-two  feet  to  the  point  of  beginning,  containing  fifty-five 
thousand  four  hundred  and  sixty  square  feet,  more  or  less.  Also, 
the  right,  privilege,  and  easement  to  take  water  by  means  of  the 
caual  of  the  grantor,  lying  southerly  of  the  premises,  and  lead- 


Deed. 


547 


ing  out  of  the  Concord  river,  and  by  means  of  head  race-ways 
to  enter  the  said  canal  at  any  point  opposite  the  premises, 
and  to  conduct  the  water  to  the  premises,  to  be  used  thereon, 
the  same  to  be  done  in  such  a manner  as  in  no  wise  to  injure 
or  weaken  the  banks  of  said  canal,  or  interrupt  the  flow  of 
water  therein.  Also,  the  right  for  said  water  to  enter  said  canal 
from  the  said  Concord  river  to  the  extent  hereinafter  specified, 
and  the  right  forever  hereafter  to  have  said  canal  and  the  banks 
thereof  and  the  permanent  dam  owned  by  the  grantor  across  Con- 
cord river  continued  for  the  purpose  of  affording  a water-power, 
and  to  the  extent  and  with  the  exceptions  and  reservations  here- 
inafter contained  and  set  forth,  the  quantity  of  water  which  may 
be  drawn  from  the  canal  by  grantee,  his  heirs  and  assigns,  is 
strictly  limited  to,  and  shall  not  exceed,  thirty-six  cubic  feet  per 
second  for  eleven  and  one-quarter  hours  per  da}r  of  six  days  of  the 
week,  and  if  at  any  time  the  quantity  of  water  in  the  canal  shall 
not  equal  two  hundred  and  eighty-eight  cubic  feet  per  second 
during  the  time  aforesaid,  then  the  grantee,  his  heirs  and  assigns, 
shall  during  such  time  be  restricted  to  one-eighth  of  the  quantity 
of  the  water  in  the  canal ; meaning  that  the  quantity  of  water 
which  may  be  drawn  from  the  canal  by  the  grantee,  his  heirs  or 
assigns,  shall  never  at  any  time  exceed  thirty-six  cubic  feet  per 
second  for  the  above  specified  time,  however  great  may  be  the 
supply  of  water  from  the  said  canal,  and  that  the  quantity  of 
water  which  may  be  taken  by  the  grantee,  his  heirs  and  assigns, 
shall  be  restricted  to  such  an  amount  less  than  thirty-six  cubic 
feet  per  second  during  the  above  specified  time,  as  shall  be  equal 
to  one-eighth  of  the  supply  afforded  from  the  canal,  whenever  the 
water  in  the  canal  shall  be  less  than  two  hundred  and  eighty-eight 
cubic  feet  per  second  for  eleven  and  one-quarter  hours  per  day  for 
six  days  of  the  week. 

Also,  a right  to  pass  with  cars  over  the  railroad  leading  from 
the  Boston  & Lowell  and  Lawrence  Railroad,  at  Whipple’s  station, 
to  the  above-described  premises,  and  over  the  premises  of  the 
grantor,  as  the  railroad  is  now  constructed,  or  as  it  may  be  con- 
structed hereafter,  by  the  grantor  or  by  the  proprietors  of  the 
several  rights  or  grants  now  made,  or  which  may  be  made  by  the 
grantor,  his  heirs  or  assigns.  But  this  right  is  to  be  used  in  com- 
mon with  other  grants  made  by  the  grantor,  or  which  may  be 
made,  and  in  common  with  the  grantor,  his  heirs  and  assigns ; 
nor  shall  he  or  they  be  under  any  obligations  to  maintain  said  rail- 
road or  to  extend  the  same  ; meaning  only  to  grant  the  right  to  use 
in  common  with  others,  the  present  railroad  track,  so  long  as  the 
same  may  continue,  with  a right  of  rebuilding  a track  and  using 
and  maintaining  the  same  as  aforesaid,  and  subject  to  the  rights  of 
the  Boston  & Lowell  Railroad,  Lowell  & Lawrence,  and  Salem  & 
Lowell  Railroad  Companies,  and  subject  to  such  changes  in  the 
direction  or  situation  of  the  track  as  the  grantor,  his  heirs  or 
assigns,  may  reasonably  demand ; and  in  case  said  railroad  shall 
be  discontinued,  the  grantee,  his  heirs  and  assigns,  shall  have,  so 
long  as  the  railroad  shall  be  discontinued,  a right  of  way  to  pass 
and  repass  with  teams  from  Lawrence  street  to  the  conveyed 


548 


Sterling  Mill. 


premises,  over  the  space  between  the  conveyed  premises  and  the 
canal,  but  so  as  not  to  obstruct  said  space  to  the  injury  of  the 
grantor,  his  heirs  or  assigns. 

And  the  grantor,  for  himself,  his  heirs  and  assigns,  covenants 
with  the  grantee,  his  heirs,  that  he  will  within  seven  months  from 
this  date  so  enlarge  the  said  canal  that  the  same  shall  be  of  suffi- 
cient capacity  at  all  times  when  the  water  in  the  river  and  canal 
is  as  high  as  the  top  of  the  said  permanent  dam  in  Concord  river, 
to  carry  and  discharge  not  less  than  two  hundred  and  eighty-eight 
cubic  feet  per  second  of  eleven  and  one-quarter  hours  per  day  of 
six  days  of  the  week,  without  the  water  therein  at  the  head  of  the 
head  race-ways  of  the  grantee  being  drawn  down  more  than  six 
inches  below  the  top  of  said  permanent  dam.  And  the  said 
Whipple,  for  himself,  his  heirs  and  assigns,  further  covenants  that 
he  will  forever  hereafter  keep  and  maintain  in  suitable  and  proper 
condition  and  repair,  the  said  canal,  enlarged  to  the  capacity 
aforesaid,  and  the  banks  and  parts  and  appurtenances  thereof. 
Also  the  said  permanent  dam  and  the  eight-inch  flash-boards  as  they 
are  usually  kept  thereon,  subject  to  such  reasonable  and  temporary 
interruptions  and  hindrances  as  may  be  necessary  in  such  main- 
tenance and  repairs. 

This  deed  is  on  the  express  reservation  to*the  grantor,  his  heirs 
and  assigns,  of  the  annual  sum  of  fifteen  dollars,  to  be  forever 
hereafter  yielded  and  paid  by  the  grantee,  his  heirs  and  assigns, 
for  such  maintenance  and  repairs.  And  this  deed  is  also  on  the 
express  condition  that  for  affording  reasonable  facilities  for  meas- 
uring water  taken  from  the  canal  by  the  grantee,  his  heirs  or 
assigns,  the  head  race-way  of  the  grantee  shall  consist  in  whole 
or  in  part  of  a flume  or  flumes  which  shall  not  be  less  than  fifteen 
feet  in  length,  with  the  sides  and  bottom  smooth.  And  the 
grantor,  his  heirs  and  assigns,  may  at  any  and  all  times  hereafter 
enter  upon  the  said  premises  of  the  grantor  and  make  such  ad- 
measurements as  may  be  requisite  and  proper  for  determining  the 
quantity  of  water  taken.  To  have  and  to  hold  the  said  conveyed 
premises  with  the  privileges  and  appurtenances  belonging  to  the 
grantee,  his  heirs  and  assigns  in  fee  simple  forever.  And  I,  the 
grantor,  for  myself,  my  heirs,  executors,  and  administrators,  do 
covenant  with  the  grantee,  his  heirs  and  assigns,  that  I am  lawfully 
seized  in  fee  simple  of  the  aforegranted  premises,  that  they  are 
free  from  all  incumbrances  except  a mortgage  given  by  me,  on 
the  premises,  with  other  parcels  of  land,  to  the  City  Institution  for 
Savings,  which  mortgage  I am  to  pay,  and  against  the  same  to 
indemnify  and  save  harmless  the  grantee,  his  heirs  and  assigns ; 
that  I have  good  right  to  sell  and  convey  the  same  to  the  grantee, 
his  heirs  and  assigns,  forever  as  aforesaid,  and  that  I will,  and  my 
heirs,  executors,  and  administrators  shall,  warrant  and  defend  the 
same  to  the  grantee,  his  heirs  and  assigns,  forever  against  the 
lawful  claims  and  demands  of  all  persons. 

In  witness  whereof  we,  the  said  Oliver  M.  Whipple  and  Sarah 
K.,  his  wife,  in  token  or  her  release  of  all  claim  of  dower  in  the 
premises,  and  who,  for  the  consideration  aforesaid,  and  in  consid- 
eration of  one  dollar  to  her  paid  by  said  Mather,  joins  herein  and 


Lease. 


549 


releases  and  conveys  with  said  Whipple  to  said  Mather,  his  heirs 
and  assigns,  all  right  and  title  to  and  of  homestead  exemption  in 
the  premises  herein  described  as  aforesaid,  have  hereunto  set  our 
hands  and  seals  this  eighteenth  day  of  May,  in  the  year  eighteen 
hundred  and  fifty-seven. 

Attested  and  delivered  in  presence  of  E.  B.  Patch  to  O.  M.  W. 
Henry  J.  P.  Whipple  to  S.  K.  W.  Oliver  M.  Whipple  (L.  S.) 
Sarah  K.  Whipple  (L.  S.) 


Commonwealth  of  Massachusetts,  Middlesex,  ss.  May  21, 
1857.  Then  personally  appeared  the  above-named  Oliver  M. 
Whipple  and  acknowledged  the  foregoing  instrument  to  be  his 
free  act  and  deed.  Before  me, 

E.  B.  PATCH, 

Justice  of  the  Peace. 


Middlesex,  ss.,  North  District. 
21,  1857. 


Received  and  recorded  May 

A.  B.  WRIGHT, 

Register. 


Middlesex,  ss.,  North  District,  Registry  of  Deeds,  March  8, 
1876.  I hereby  certify  the  above  to  be  a true  copy  of  the  record 
of  deed  recorded  in  book  9,  page  475. 

Attest : J.  P.  THOMPSON, 

Register. 


This  was  leased  first  by  Joshua  Mather  to  Charles  A.  Stott, 
of  Lowell,  on  the  9th  day  of  July,  1864,  and  he  demises  the 
property  described  in  that  deed  (the  deed  dated  the  18th 
day  of  May,  1857),  with  all  the  appurtenances,  and  every- 
thing else,  for  fifty  years,  from  the  first  day  of  January, 
1865. 


This  Indenture , made  and  entered  into  this  ninth  day  of  July, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
four,  by  and  between  Joshua  Mather,  of  Lowell,  in  the  County  of 
Middlesex  and  Commonwealth  of  Massachusetts,  party  of  the 
first  part,  and  Charles  A.  Stott,  of  said  Lowell,  party  of  the 
second  part,  witnesseth : That  the  said  Mather  doth  hereby  lease, 
demise  and  let  unto  the  said  Stott  all  the  real  estate,  land,  mill- 
privilege  and  water-power  in  said  Lowell,  described  in  and  con- 
veyed and  granted  by  a deed  given  by  Oliver  M.  Whipple,  of  said 
Lowell,  to  said  Mather,  bearing  date  the  eighteenth  day  of  May, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
seven,  and  recorded  in  the  Registry  of  Deeds  in  and  for  the 
Northern  District  of  Middlesex  County  aforesaid,  in  Book  nine 
(9),  page  four  hundred  and  seventy-five  (475),  with,  and  in- 
cluding, all  the  appurtenances,  rights,  privileges,  easements  and 
advantages  thereto  appertaining  or  belonging,  and  subject  to  all 
the  qualifications,  reservations,  restrictions,  requirements  and  con- 


550 


Sterling  Mill. 


ditions,  subject  to  which  the  same  were  conveyed  and  granted  by 
said  deed  to  said  Mather,  or  are,  or  have  been,  held  by  said  Mather 
under  said  deed  (reference  to  said  deed  and  the  record  thereof,  as 
aforesaid,  being  had  for  an  accurate  and  full  description  of  the 
premises  hereby  leased,  demised  and  let.) 

To  hold,  subject  to  the  conditions,  reservations  and  restrictions 
hereinafter  stated,  for  the  term  of  fifty  years  from  the  first  day  of 
January,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
sixty-five,  and  ending  on  the  first  day  of  January,  in  the  year  of 
our  Lord  one  thousand  nine  hundred  and  fifteen,  yielding  and  pay- 
ing therefor  the  annual  rent  of  one  thousand  and  four  hundred 
dollars  for  every  year  in  said  term,  in  semi-annual  payments  of 
seven  hundred  dollars  each,  on  the  first  day  of  July  and  the  first 
day  of  January  at  the  end  of  every  six  months  in  each  }Tear  in  said 
term,  and  also  paying  all  taxes  and  assessments  whatsoever  which 
shall  be  assessed,  levied,  or  in  any  way  made  upon  said  leased 
premises  during  said  term,  and  also  paying  all  taxes  and  assess- 
ments which  shall  be  assessed,  levied,  or  in  any  way  made  upon 
said  rent  in  said  Commonwealth  of  Massachusetts,  under^authority 
of  the  laws  thereof,  during  said  term,  whether  as  state,  county, 
city  or  town,  or  other  taxes  or  assessments,  meaning  that  said 
lessee  and  those  having  his  estate  in  said  leased  premises  are 
to  pay  all  taxes  and  assessments  assessed,  levied,  or  in  an}*  way 
made  upon  said  leased  premises  during  said  term ; and  also 
all  taxes  and  assessments  assessed,  levied  or  made  upon  said  rent, 
during  said  term,  whether  assessed  to  said  Mather  and  those 
having  his  estate  in  said  leased  premises,  or  to  the  said  lessee  and 
those  having  his  estate  in  said  leased  premises,  excepting  the 
United  States  income  tax,  and  any  taxes  and  assessments  assessed, 
levied  or  made  upon  said  rent  in  other  states  or  territories  or 
foreign  countries  under  the  laws  thereof,  in  case  of  said  Mather,  or 
those  having  his  estate  in  said  leased  premises,  residing,  dwelling, 
or  being  in  any  other  State,  territory  or  foreign  country. 

And  said  Stott  doth  hereby  covenant  and  agree  with  said 
Mather  to  pay  said  rent,  as  aforesaid,  during  said  term,  and  also 
to  pay,  seasonably,  all  the  taxes  and  assessments  hereinbefore 
stated  to  be  paid,  as  so  hereinbefore  stated,  and  not  to  suffer  said 
leased  premises  to  be  sold  for  or  by  reason  of  non-payment  of  any 
taxes  or  assessments  thereon  during  said  term,  or  to  be  lost  to  the 
said  lessor,  or  those  having  his  estate  therein,  by  reason  of  the 
non-payment  of  any  taxes  or  assessments  thereon  during  said 
term ; and  to  perform,  fulfil  and  keep  an}T  and  all  the  condition 
and  conditions  contained  in  said  deed  from  said  Whipple  to  said 
Mather,  and  not  to  suffer  said  leased  premises  to  be  lost  to  said 
Mather,  or  those  having  his  estate  therein,  by  reason  of  the  non- 
performance, non-fulfilment  or  the  not  keeping  of  any  condition  or 
conditions  contained  in  said  deed  from  said  Whipple  to  said 
Mather ; and  to  erect  on  said  premises  a mill  or  factor}'  for 
manufacturing ; and  to  keep  the  buildings  which  shall  be  erected 
on  said  premises  insured  b}T  some  sale  insurance  company  or  com- 
panies of  good  repute,  and  to  apply  the  amounts  of  money  which 
shall  be  received  by  virtue  of  such  insurance,  or  so  much  thereof 


Lease. 


551 


as  shall  be  needed  to  the  restoration  and  repair  of  the  buildings  on 
said  premises  as  soon  as  reasonably  can  be  done  after  the 
destruction  or  injury  thereof  by  fire. 

But  this  lease  and  indenture  are  made  upon  the  express  condi- 
tion that  the  same  shall  be  void,  and  said  term  shall  end,  cease, 
terminate  and  determine,  and  be  ended,  terminated  and  deter- 
mined upon  said  Stott,  or  thosfc  having  his  estate  under  this  lease 
in  said  premises,  failing  to  keep,  perform  and  fulfil  any  of  his 
covenants  aforesaid,  after  request  and  notice  to  so  keep,  perform 
and  fulfil  from  said  Mather,  or  those  having  his  estate  in  said 
leased  premises ; and  that  then  said  Mather,  or  those  having  his 
estate  in  said  premises,  shall  have  the  right  to  enter  into  or  upon 
said  premises,  and  possess  and  hold  the  same  as  of  his  former 
estate,  or  to  recover  the  same  at  law. 

And  the  gaid  Mather,  for  himself,  his  heirs,  executors,  adminis- 
trators and  assigns,  hereby  covenants  with  said  Stott,  his  ex- 
ecutors, administrators  and  assigns,  and  those  having  his  estate  in 
said  premises,  that  in  case  said  Stott,  his  executors,  adminis- 
trators and  assigns,  and  those  having  his  estate  in  said  premises, 
shall  keep,  perform  and  fulfil  all  the  covenants  and  agreements 
herein  contained  on  his  and  their  part,  to  be  kept  and  performed  and 
fulfilled  during  the  term  of  fifty  years  aforesaid,  then  he,  the  said 
Mather,  will,  and  his  heirs  and  assigns,  or  those  having  his  estate 
in  said  premises,  shall,  at  the  end  of  said  term  of  fifty  years,  upon 
request  of  said  Stott,  his  executors,  administrators  or  assigns,  and 
a compliance  on  his  or  their  part,  as  the  case  may  be,  with  the 
terms  and  conditions  hereinafter  stated,  grant  to  said  Stott, 
his  executors,  administrators  or  assigns  a further  lease  of  said 
premises  for  the  term  of  fifty  }mars  from  the  end  of  said  first  term, 
hereby  made  and  granted,  by  a lease  and  indenture  in  all  respects 
like  unto  and  the  same  as  this,  and  with  the  same  covenants,  pro- 
visions and  conditions  as  applied  to  the  parties  thereto,  and  the 
said  premises  as  in  this,  except  the  changing  of  the  names  and 
descriptions  of  the  parties  thereto  from  those  herein  as  may  be  re- 
quired, and  also,  except  a&  hereinafter  stated.  If,  when  said  new 
and  further  lease  is  given,  either  of  the  two  parties  then  holding 
and  owning  the  interests  of,  and  representing  the  said  Mather  and 
the  said  Stott  under  this  lease,  shall  require  or  request  a new  val- 
uation of  said  premises,  then  the  said  parties  shall  each  choose  one 
person,  who  shall  be  a well-qualified  and  experienced  manufac- 
turer, and  also  a superintendent  of,  or  owner  in,  one  of  the 
principal  or  large  manufacturing  establishments  in  said  Lowell, 
and  they  two  so  chosen  shall  choose  a like  third  person,  and  the 
three  so  chosen  shall,  under  oath,  appraise  the  then  value  of  said 
premises  as  hereby  leased  (the  real  estate,  land,  mill-privilege  and 
water-power,  but  not  including  buildings,  structures  or  improve- 
ments hereafter  made)  ; and  if  six  per  cent,  interest  for  one 
year  on  the  sum  at  which  the  same  shall  be  so  appraised  shall  be 
greater  or  less  than  fourteen  hundred  dollars,  then  the  annual  rent 
for  said  further  or  second  term  shall  be  fixed  or  ascertained  by 
taking  fourteen  hundred  dollars,  and  adding  thereto  such  excess, 
if  any,  or  substracting  therefrom  such  lack  or  deficiency,  if  any, 


552 


Sterling  Mill. 


and  the  sum  or  remainder,  as  the  case  majr  be,  to  be  the  amount 
of  annual  rent  to  be  paid  in  said  new  lease  or  further  lease,  instead 
of  fourteen  hundred  dollars  as  in  this,  but  fourteen  hundred 
dollars  to  be  the  annual  rent  in  said  new  lease,  if  neither  party 
shall  require  or  request  a new  valuation,  as  aforesaid,  or  if  said 
sum  of  fourteen  hundred  dollars  shall  not  be  increased  or 
diminished  by  the  proceedings  and  -process  aforesaid.  Two  parts 
of  said  new  or  further  lease  or  indenture  are  to  be  interchangeably 
signed,  sealed  and  delivered  by  the  parties  thereto  on  both  parts 
in  the  same  way  and  manner  as  the  two  parts  of  this  have  been  ; 
and  the  expenses  of  such  new  and  further  lease  or  indenture,  and 
of  the  appraisal,  as  aforesaid,  and  the  attendant  expenses  are  to 
be  borne  equally  by  the  two  parties  to  said  new  or  further  lease, 
each  party  paying,  and  to  pay  one-half  thereof.  It  is  understood 
that  there  is  to  be  in  such  new  or  further  lease  or  indenture  a 
clause  or  covenant  for  renewals,  as  in  this  lease  or  indenture,  sub- 
ject to  the  same  terms  and  conditions  and  to  the  like  change  of 
names  and  descriptions  of  parties,  and  to  the  same  right  to  have 
an  appraisal  or  new  valuation,  with  a consequent  increase  or 
decrease  of  rent  in  the  next  lease,  and  subject  to  be  defeated  by 
the  termination  of  the  term  or  forfeiture  or  ceasing  thereof  in  said 
new  or  further  lease,  as  in  this,  and  by  the  same  way  and  means, 
and  that  renewals  may  be  required  one  after  another  every  fifty 
years,  indefinitely,  by  like  lease  and  changes  and  new  valuation 
and  consequent  change  of  rent,  if  new  valuation  required  or 
requested,  unless  such  right  to  renewal  is  defeated,  forfeited 
or  waived,  as  it  may  always  hereafter  be,  under  whatever  lease  in 
the  same  way  and  manner  as  it  is  provided,  it  may  be  in  this 
lease,  during  the  continuance  or  at  the  end  of  the  term  of  fifty 
years. 

I,  Mary  J.  Mather,  wife  of  said  Joshua  Mather,  join  herein  to 
release  dower  in  said  leased  premises. 

In  witness  whereof,  the  parties  aforesaid  have  hereunto  inter- 
changeably set  their  hands  and  seals,  the  day,  month  and  year 
hereinfirst  written. 

JOSHUA  MATHER, 
CHARLES  A.  STOTT, 
MARY  J.  MATHER. 

Signed,  sealed  and  delivered  in  the  presence  of  us.  The  words 
“ any,”  “ stated,”  and  “ is  provided  it,”  being  first  interlined,  and 
the  word  “ said  ” in  one  place,  and  the  word  “ be,”  in  one  place, 
erased. 

Horatio  G.  F.  Corliss,  witness  to  Joshua  Mather, 
John  Stott,  witness  to  C.  A.  Stott, 

Almira  Smith,  witness  to  M.  J.  Mather. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Middlesex,  ss.  July  9,  1864. 

Then  the  aforenamed  Joshua  Mather  acknowledged  the  fore- 
going instrument  to  be  his  free  act  and  deed. 

Before  me, 

HORATIO  G.  F.  CORLISS, 

Justice  of  the  Peace . 


Assignment. 


553 


COMMONWEALTH  OF  MASSACHUSETTS. 

Lowell,  July  14,  1864. 

Recorded  in  the  Registry  of  Deeds  for  the  Northern  District  of 
Middlesex,  in  Book  39,  page  468. 

A.  B.  WRIGHT, 

Registrar. 

That,  by  an  assignment  by  Charles  A.  Stott,  dated  Feb- 
ruary 1,  1871,  was  transferred  to  Parker,  Wilder  & Co.,  who 
are  the  petitioners  in  this  case. 

Know  all  men  by  these  Presents , that  I,  Charles  A.  Stott,  of 
Lowell,  in  the  county  of  Middlesex  and  Commonwealth  of  Massa- 
chusetts, lessee  named  in  a certain  lease  given  by  Joshua  Mather, 
late  of  said  Lowell,  deceased,  to  myself,  dated  July  9,  1864,  and 
recorded  in  Middlesex  North  Registry  of  Deeds,  in  book  39,  page 
468,  for  and  in  consideration  of  the  sum  of  thirty-five  thousand 
dollars,  to  me  paid  b.y  Marshal  P.  Wilder,  of  Boston,  in  the  county 
of  Suffolk  and  Commonwealth  aforesaid  ; Ezra  Farnsworth,  of  said 
Boston  ; Samuel  B.  Rindge,  of  Cambridge,  in  said  county  of  Mid- 
dlesex ; William  H.  Wilder,  of  West  Roxbury,  in  the  county  of 
Norfolk  and  Commonwealth  aforesaid;  Benjamin  Phipps,  Jr.,  of 
Chelsea,  in  said  county  of  Suffolk ; and  John  Byers,  of  the  City 
of  New  York,  in  the  State  of  New  York,  all  partners  in  business, 
under  the  firm  name  and  style  of  Parker,  Wilder  & Company, 
doing  business  at  said  Boston,  at  and  before  the  sealing  and  de- 
livery  hereof,  the  receipt  whereof  I do  hereby  acknowledge,  have 
granted,  bargained  and  sold,  assigned  and  set  over,  and  by  these 
presents  do  grant,  bargain  and  sell,  assign,  and  set  over  unto  the 
said  Marshal  P.  Wilder,  Ezra  Farnsworth,  Samuel  B.  Rindge, 
William  H.  Wilder,  Benjamin  Phipps,  Jr.,  and  John  Byers,  their 
executors,  administrators,  and  assigns,  the  above  described  lease, 
and  every  article,  claim,  covenant,  provision  and  agreement  therein 
contained,  and  the  unexpired  term  of  years  thereby  demised,  and  all 
right  and  claim  to  renewals  of  said  lease,  and  for  further  leases  of 
the  premises ; and  all  that  messuage,  tenement  and  tract  of  land 
in  said  lease  demised,  together  with  all  the  appurtenances,  im- 
provements, including  the  four-story  brick  mill  and  steam  boiler, 
and  all  other  fixtures  of  every  description  on  the  premises ; and 
also  all  my  estate,  right,  title,  term  of  years  yet  to  come,  and 
demand  whatsoever,  of,  in,  to,  or  out  of  the  estate. 

To  have  and  to  hold  the  same  to  the  said  Marshal  P.  Wilder, 
Ezra  Farnsworth,  Samuel  B.  Rindge,  William  H.  Wilder,  Benja- 
min Phipps,  Jr.,  and  John  Byers,  their  executors,  administrators, 
and  assigns,  to  their  use  and  behoof  forever,  under  and  subject  to 
the  yearly  rent  in  said  lease  reserved,  and  to  the  covenants  and 
provisions  therein  contained. 

In  witness  whereof  I,  the  said  Charles  A.  Stott,  have  hereunto 
set  my  hand  and  seal,  this  first  day  of  February,  A.  D.  1871. 

C1IAS.  A.  STOTT. 

Signed,  sealed  and  delivered  in  presence  of 

JOHN  F.  McEVOY. 


554 


Sterling  Mill. 


Commonwealth  of  Massachusetts, 

Middlesex,  ss.,  February  10,  1871. 

Then  personally  appeared  the  above-named  Charles  A.  Stott, 
and  acknowledged  the  above  instrument  to  be  his  free  act  and 
deed,  before  me, 

JOHN  F.  McEVOY, 

Justice  of  the  Peace. 

Mr.  Butler.  Is  there  any  mortgage  on  these  premises  ? 

Mr.  Shattuck.  No. 

The  first  question  to  be  considered  in  all  these  cases  is, 
what  does  the  city  take ; and  some  arguments  have  been 
made  on  the  question  whether  the  city  takes  and  is  to  pay 
for  the  whole  of  the  Sudbury  river ; and  upon  that  question 
I should  like  to  say  a few  words,  and  I may  as  well  say 
them  now.  It  is  well  known  as  a matter  of  tradition,  or 
was  at  the  time  this  act  was  passed,  that  when  the  city  took 
the  Cochituate  water  it  was  very  difficult  to  show  what  the 
damages  were.  Of  course  there  was  only  a limited  amount 
of  water  taken  at  the  outset,  and  it  is  impossible  in  any  one 
season  to  determine  what  the  effect  of  it  has  been.  Take  for 
example  the  case  of  the  Essex  Company ; take  three  months 
of  1872  and  compare  them  with  three  months  of  1873,  and  if 
two-thirds  of  the  water  had  been  taken  during  three  months 
of  1872  there  would  have  been  as  much  left  as  there  was 
during  the  corresponding  three  months  of  1873 ; so  that 
investigations  for  a single  year  have  very  little  significance 
in  determining  the  amount  of  damages,  and  when  the  City  of 
Boston  proposed  to  take  Sudbury  river  there  were  two  plans 
suggested,  in  order  that  the  rights  of  the  mill-owners  might 
be  protected ; one  plan  was  that  the  city  should  be  com- 
pelled to  make  compensating  reservoirs,  so  that  while  taking 
a sufficient  water  supply  for  the  city  they  could  secure  to  the 
mill-owners  below,  substantially,  all  the  beneficial  use  that 
they  now  have  ; but  the  working  of  the  compensating  reser- 
voirs is  very  uncertain,  more  so  I believe  in  this  country 
than  in  England,  and  that  theory  was  abandoned,  and  it  was 
finally  decided  that  in  order  that  there  might  be  a certainty 
as  to  what  compensation  the  mill-owners  were  entitled  to, 
that  the  city  should  take  all  the  water  in  the  Sudbury 
river,  — all  the  water-rights  in  the  Sudbury  river,  — and  by 
the  provisions  of  the  act  you  will  see  that  they  are  to  pay, 
not  simply  damages  for  the  taking  of  water,  but  for  the 
taking  of  water-rights,  and  the  rights  that  they  acquire  by  the 
terms  of  the  act  are  to  take  all  the  water  of  the  Sudbury 
river.  Now,  nobody  supposed  that  they  would  actually,  in 
times  of  great  freshets,  at  present  or  for  a long  period,  take 


Argument  or  Shattuck. 


555 


and  enjoy  all  the  water  running  in  the  Sudbury  river ; but 
inasmuch  as  it  was  a question  of  great  uncertainty  how  much 
they  would  take,  and  as  it  is,  as  this  commission  must  now 
be  aware,  very  difficult,  at  best,  to  determine  the  value  ot 
water-rights,  the  Legislature  said  to  the  City  of  Boston, 
" You  must  take  this  water,  — these  water-rights, — in  the 
most  definite  form  for  the  protection  of  the  mill-owners  ; you 
must  take  all  the  water  and  pay  for  all  the  water,  and  then 
you  can  do  what  you  please  with  it and  these  other  provisions 
in  the  4th  section,  for  other  towns,  did  not  limit  the  grant ; it 
was  carefully  worded  so  as  not  to  limit  the  grant : " Nothing 
contained  in  this  act  shall  be  so  construed  as  to  authorize  the 
City  of  Boston  to  reduce  the  water  in  Sudbury  river  below  a 
sufficient  height  to  maintain  at  all  times  a running  stream 
therein.”  That  was  to  avoid  a public  nuisance,  having  an 
empty  stream,  and  also  to  furnish  some  scouring  water  for 
some  of  the  mills  for  mechanical  uses ; and  then  they  should 
not  draw  from  Farm  pond  or  Sudbury  river  into  Lake  Co- 
chituate  when  the  water  runs  over  the  dam  at  Lake  Cochitu- 
ate,  but  they  may  draw  it  in  any  other  way,  and  it  shall  not 
"prevent  the  inhabitants  of  the  towns  of  Framingham,  Ash- 
land, Southborough,  Hudson,  and  Westborough  from  taking 
from  the  Sudbury  or  Assabet  rivers  or  Farm  pond  so  much 
of  the  water  hereby  granted  as  shall  be  necessary  for  extin- 
guishing fires.”  The  theory  of  this  was  that  the  city  was  to 
take  all  the  water  and  pay  for  all  the  water ; but  to  prevent 
a public  nuisance,  and  for  the  protection  of  these  towns,  they 
took  it  with  certain  burdens,  and  the  city  agreed  to  these 
arrangements  by  accepting  the  act,  and  I never  heard  it 
suggested,  until  the  ingenious  and  able  argument  made  in  this 
case,  that  there  was  any  doubt  that  that  was  the  construc- 
tion. It  was  clearly  intended,  and  it  was  intended,  because 
the  mill-owners  said,  "If  you  will  put  it  in  that  way  so  as 
to  make  it  certain,  we  will  withdraw  our  opposition  to  the 
act.” 

Mr.  Butler.  Then  what  I understand  your  theory  to  be, 
is  that  the  city  is  to  pay  for  the  one  and  one-half  millions 
of  gallons  they  let  run  down  ? 

Mr.  Shattuck.  My  theory  is,  that  the  city  is  to  pay  for 
every  drop  of  water  in  Sudbury  river.  And  they  took  the 
whole  of  it ; there  was  no  limitation  of  their  grant.  It  was 
known  at  the  time  that  something  would  be  allowed  to  flow 
in  the  river ; it  was  known  that  they  must  allow  some  of  it 
to  flow  in  the  river,  and  they  put  in  the  limitation  in  order  to 
prevent  a public  nuisance.  They  take  it  all  and  dispose  of 
it  in  various  ways ; some  of  it  they  sell  to  citizens,  some  of 
it  they  are  required  to  permit  other  towns  to  take,  and  some 


556 


Sterling  Mill. 


of  it  they  are  required  to  permit  to  run  in  the  river ; and  if 
any  one  can  take  that  act  and  construe  it  to  mean  something 
else,  I certainly  find  it  very  difficult  to  see  where  the  argu- 
ment is  found  to  support  it.  It  will  hardly  be  proper  to  refer 
to  the  history  of  it,  although  I was  counsel,  with  some  other 
parties  who  are  here  present,  and  recollect  all  about  it. 

Now,  the  next  question,  assuming  that  they  took  all  the 
water  of  Sudbury  river,  as  we  have  a limited  right  to  a frac- 
tional part  of  288  feet  per  second,  it  follow^  that  if  there  is 
an  amount  of  water  running  in  the  river  in  excess  of  288 
feet,  so  great  that  we  can  spare  all  the  water  of  the  Sudbury 
river,  why  then  we  suffer  no  damage.  The  maximum 
damage  that  we  suffer,  that  is,  our  maximum  loss  of  power, 
would  occur  if  there  were  exactly  288  feet  flowing  all  of 
the  time  in  the  Wamesit  canal ; we  should  then  lose  just  one 
proportion  of  that. 

Mr.  Butler.  And  no  more  ? 

Mr.  Shattuck.  And  no  more.  Just  our  proportion  of 
that  288  feet.  Of  course,  if  the  amount  flowing  was  300 
feet  per  second,  and  they  take  away  a percentage  of  it,  and 
that  percentage  reduces  it  below  288  feet,  then  we  lose  a 
percentage  of  it,  but  a smaller  amount  than  if  the  flow 
was  exactly  288  feet ; and  we  continue  to  lose  something  up 
to  the  time  when  the  flow,  if  it  ever  was  so  great,  was  so 
large  that  after  taking  the  whole  Sudbury-river  supply  there 
were  still  288  feet  left. 

On  the  other  hand,  as  the  quantity  in  the  river  diminishes, 
falls  below  288  fe£t  per  second,  the  amount  of  power  that 
we  lose  is  diminished  until  we  come  down  to  the  minimum  in 
the  river,  although  the  percentage  of  loss  increases.  Of 
course,  if  there  were  only  200  feet  in  the  river  and  one-fourth 
is  taken  away,  our  actual  loss  of  horse-power  would  be  less 
than  if  there  were  288  feet  running  in  the  river  and 
the  same  proportion  was  taken.  That  makes  it  an  im- 
portant question  for  us  to  determine,  what  is  the  effec- 
tive flow  of  the  Concord  river  at  the  Wamesit  dam  ; and  that 
is  the  most  important  question,  probably,  that  we  have  to 
deal  with ; and  fortunately  there  are  one  or  two  pretty  accu- 
rate tests  wffiich  have  been  in  existence  for  many  years,  which, 
we  think,  practically  settles  the  question,  and  we  find  that 
those  results  are  in  harmony  with  the  results  obtained  by  such 
investigations  as  we  have  been  able  to  make  by  measure- 
ments. First,  below,  or  a short  distance  below,  the  Wamesit 
dam,  is  the  Middlesex  darn,  and  that  has  the  same  water  sup- 
ply, plus  a small  supply  from  the  River  Meadow  brook, 
which  is  about  five  feet  per  second  in  a dry  time.  On 
that  Middlesex  dam  the  Middlesex  Company  have  a right 


Argument  of  Shattuck. 


557 


to  use  certain  breast-wheels  and  a fulling-mill,  under  a 
grant  going  back  to  1822,  which,  by  careful  experiment 
and  measurement,  have  been  ascertained  to  call  for  not 
exceeding  168  feet  per  second.  Alter  that  supply  has 
been  furnished,  the  Belvidere  mill  (we  will  call  it  the 
Stott  mill  for  convenience,  and  we  will  call  the  one  on  the 
Wamesit  dam  the  Belvidere,  because,  I believe,  that  is  the 
way  they  are  called  in  Lowell) , the  Stott  mill  is  using  ||  of 
the  surplus  water,  19  under  a grant  and  3 under  a lease  at 
will ; and  they  call,  as  we  shall  show,  for  60  feet  per  second, 
and  the  other  ^ ; in  round  numbers,  for  6 feet,  or  more,  per 
second.  Now,  if  you  will  add  together  the  168,  — which  I 
understand  to  be  the  maximum  of  the  Middlesex  supply  in 
winter,  when  the  fall  is  less  than  in  summer,  — add  it  to  that 
66,  and  you  have  234  feet  per  second  as  the  available  supply 
of  the  Concord  river ; that  is,  the  maximum  supply  which  a 
prudent  mill-owner  could  count  upon  in  building  a mill  and 
putting  in  machinery.  Of  course,  the  minimum  in  dry  times 
falls  below  that ; the  maximum  is  above  it ; but  the  power 
which  the  prudent  mill-owner  would  count  upon  in  putting 
in  a mill,  — that  is,  the  available  water  as  it  has  been  used 
practically  over  the  Wamesit  dams  and  the  other  dams  below, 
and  that,  I take  it,  is  the  test  (I  need  add  nothing  to  the  ar- 
gument made  by  brother  Merwin),  and  the  question  here  is, 
practically,  what  is  the  damage  ; and  we  shall  show  you  that 
the  Stott  mill,  which  has  this  surplus,  is  obliged  now  to  use 
steam  from  one  to  two  months  in  the  year,  because  it  has  not 
water  enough  with  this  machinery,  which  only  calls  for  60 
feet  per  second.  When  we  have  shown  that, — that  it  calls  for 
the  use  of  steam  for  one  or  two  months  in  the  year,  and  did 
before  this  water  was  taken  by  the  city, — we  show  conclusively 
that  it  would  not  be  worth  while  to  put  in  a mill  relying  on 
water-power  to  use  any  surplus  beyond  that;  therefore,  as 
nearly  as  it  is  practicable,  we  do  show  that  that  234  feet  is 
the  maximum  supply  of  the  Concord  river. 

Mr.  Butler.  I shall  be  very  glad  if  you  will,  for  then 
up  goes  Mr.  Faulkner  and  Mr.  Talbot  higher  than  a kite. 

Mr.  Shattuck.  We  must  take  the  results  as  we  find 
them  practically.  Of  course,  many  times  in  the  year  there 
is  much  more  water  than  that ; but  that  is  all  the  water  which 
is  had  with  Hale’s  brook,  as  the  water  runs  in  Concord 
river,  for  the  benefit  of  mills  by  the  best  measurements 
human  ingenuity  is  capable  of  making.  The  water  in  the 
Concord  river  I need  not  say  is  probably  more  stable,  that 
is,  the  supply  is  more  even  than  the  supply  of  any  other 
river  of  its  size  in  New  England,  in  consequence  of  this  vast 
reservoir  above  the  Talbot  dam  ; but  still,  even  the  Concord 


558 


Sterling  Mill. 


river  does  not  compare  with  the  Merrimack  for  permanence 
and  regularity  of  supply,  and  the  smaller  the  river  the  more 
uncertain  the  supply,  and  that  is  well  known.  It  is  like  a 
savings  bank, — if  you  depend  upon  the  contribution  of  a very 
small  number,  it  will  go  very  low  down  or  very  high  up,  and 
when  you  get  in  a vast  number  it  makes  an  even  contribution. 
Now  take  Hale’s  brook,  and  the  lowest  supply  there  is  one- 
seventh  of  a foot  per  square  mile  ; it  has  24  square  miles  of 
drainage  area,  the  minimum  I mean,  the  lowest  in  the  dryest 
time ; probably  the  minimum  on  the  Concord  river  is  one- 
third  of  a foot  per  square  mile  ; the  minimum  on  the  Merri- 
mack is  six-tenths  of  a foot  per  square  mile,  showing  how  the 
minimum  is  affected  by  a large  increase  in  the  surface  drain- 
age, the  drainage  area.  I would  also  add  now,  that  we  shall 
refer  to  the  testimony  of  Mr.  Mills,  who  puts  the  minimum 
for  one  month  in  a year  at  below  200  feet  per  second  in  the 
Concord  river ; you  recollect  his  testimony  in  the  Essex 
Company’s  case,  which  is  also  confirmed  by  our  measure- 
ments and  estimates.  The  next  piece  of  testimony  that  we 
shall  put  in  concerning  this  case  are  measurements  made  by 
Mr.  Frizell,  of  the  water  actually  running  in  the  Concord 
river  for  a month  in  August,  which  is  this  last  month  of 
August  and  September,  and  by  comparing  the  amount  run- 
ning at  that  time  with  the  rainfall  at  that  time,  and  making 
the  best  estimate  he,  as  an  engineer,  could  make,  he  puts  the 
effective  flow  in  the  Concord  river  before  the  taking,  as  the 
water  runs  and  was  used  over  the  Wamesit  dam,  at  225  feet 
per  second.  He  will  state  to  you  the  reasons ; it  is  not 
necessary  for  us  to  go  into  them.  Of  course  it  often  goes  up 
to  288  feet,  but  we  shall  show  — 

Commissioner  Francis.  Does  this  mean  for  the  whole  24 
hours  ? 

Mr.  Shattuck.  No,  sir;  it  means  during  the  day,  as  it 
is  used.  It  is  not  all  used  during  the  day,  — they  run  some 
during  the  night ; but  I mean  taking  it  as  it  is  used  during 
the  11^  hours. 

Mr.  Butler.  And  what  runs  over  the  dam? 

Mr.  Shattuck.  I mean  it  runs  225  feet  per  second  dur- 
ing, the  11^  hours  as  it  now  runs.  He  does  not  say  it  would 
not  be  more  than  225  feet  per  second  if  it  could  be  so 
arranged  as  to  have  all  the  water  running  during  that  time, 
but  he  takes  it  practically  as  it  has  been  used,  and  that  is  the 
available  flow.  We  shall  also  put  in  evidence  to  show  how 
much  of  the  time  the  water  runs  over  the  Wamesit  dam  all 
day.  Now,  there  are  many  days  when  it  will  run  over  in 
the  morning  after  the  accumulations  of  the  night ; but,  of 
course,  if  after  the  mills  begin  to  run  they  draw  it  down  so 


Argument  of  Shattuck. 


559 


that  it  does  not  run  over,  why,  then,  it  indicates  that  there  is 
less  than  the  amount  that  is  called  tor,  — 228  feet,  — and  our 
theory  is,  that  during  nine  months  in  the  year  there  is  not, 
substantially,  over  the  228  feet  per  second  running.  I mean 
the  average. 

The  next  question  that  I come  to  is,  What  amount  of  this 
water  running  over  the  Wamesit  dam  does  the  Sudbury  river 
furnish?  The  drainage  area  of  the  whole  of  the  Concord 
river,  — excluding,  of  course,  Cochituate  lake,  which  had 
been  taken  before,  — down  to  the  Wamesit  dam,  is  351 
square  miles. 

Mr.  Butler.  Wait  a moment;  let  us  see  if  we  cannot 
agree  to  those,  and  save  all  trouble.  We  will  agree  to  that, 
excluding  Lake  Cochituate. 

Mr.  Shattuck.  Yes.  Then  the  drainage  area  of  the  Sud- 
bury river  is  as  the  city  report  makes  it,  and  as  their  engi- 
neer makes  it,  as  I understand  it,  77^.  That  is  in  the 
report  which  is  put  in  by  the  city ; — I had  the  book  here 
this  morning,  but  some  one  has  taken  it  olf.  That  is  the 
report,  — 77^-. 

Mr.  Butler.  It  was  not  made  by  Mr.  Davis,  the  City 
Engineer. 

Mr.  Shattuck.  It  is  the  report  — part  of  the  res  gestal 
— of  the  measurements  by  the  city,  and  is  evidence. 

Mr.  Butler.  As  there  is  an  error  in  it,  we  will  allow  you 
to  prove,  I guess,  that  part  of  it. 

Mr.  Shattuck.  I will  prove  it  by  putting  in  that  state- 
ment which  they  made.  Of  course,  if  you  will  show  it  is  a 
mistake,  you  are  entitled  to  it. 

Mr.  Butler.  I take  it,  if  a man  reports  to  me  a thing 
which  is  a fact,  I am  not  bound  to  show  it  is  a fact. 

Mr.  Shattuck.  You  are  not  bound  by  it,  but  it  is  evi- 
dence. The  drainage  area  of  the  water-shed  above  the  dam 
is  reported  here  as  77^-. 

Mr.  Butler.  I object ; it  is  not  a paper  made  by  any 
officer  of  the  city. 

•Mr.  Shattuck.  It  was  a report  made  to  the  City  of 
Boston,  and  an  agent. 

Mr.  Butler.  Will  not  you  read  the  title-page  ? 

Mr.  Shattuck.  "History  of  the  Boston  Waterworks, 
from  1868  to  1876,  being  a statement  of  the  history  of  the 
introduction  of  pure  water  into  the  City  of  Boston,  with  a 
description  of  its  Cochituate  Water  Works,  et  cetera,  1868.” 
The  part  of  it  read  from  is  a quotation  in  Mr.  Bradlee’s  his- 
tory, but  he  brought  it  down  to  1868,  and  then  some  one 
else,  the  city  itself,  has  brought  it  down  to  the  present 


560 


Sterling  Mill. 


time,  and  they  have  reported  that  the  drainage  area  of  the 
water-shed  above  the  dam  — 

Mr.  Butler.  I object. 

Commissioner  Russell.  Now,  Mr.  Shattuck,  what  do 
you  offer? 

Mr.  Shattuck.  I propose  to  offer  the  statement  con- 
tained in  this  book  under  the  head  of  the  " Description  of  the 
works  of  the  new  water  supply,”  — a descriptive  statement  of 
that  territory  which  the  water  is  taken  from,  and  of  the 
drainage  area,  what  is  said  about  it. 

Commissioner  Russell.  As  proving  the  drainage  area 
of  Sudbury  river  ? 

Mr.  Shattuck.  As  having  a tendency  to  show  the  drain- 
age area  of  Sudbury  river.  Of  course,  an  admission 4 by  an 
agent  is  not  competent  when  made  outside  of  his  business, 
but  when  it  is  made  as  a part  of  the  res  gestal , a part  of  a 
transaction,  as  a part  of  his  duty,  that  admission  is  binding 
upon  the  principal.  Now,  to  apply  that  to  the  City  of 
Boston ; I have  always  considered  it  doubtful  whether  a 
report  of  a branch  of  the  city  council,  of  a legislative 
committee,  if  you  may  so  describe  it,  is  necessarily  com- 
petent ; but  in  this  matter  of  the  taking  of  water,  the  city 
stands  in  the  same  footing  with  an  aqueduct  corporation. 
The  chairman  will  recollect  a distinction  that  was  taken  in 
the  case  of  Child  vs.  The  City  of  Boston.  A town  would 
not  be  liable  for  neglecting  to  keep  in  repair  and  main- 
taining a highway,  because  it  does  that  as  a public  officer, 
and  is  only  liable  when  the  liability  is  imposed  by  statute. 
There  are  certain  duties  performed  by  municipal  corpora- 
tions in  which  they  stand  in  the  same  relation  to  the  public 
that  a private  corporation  does,  and  they  are  liable  for  any 
neglect  of  any  agent  in  the  performance  of  their  relation  to 
it.  It  was  so  held  that  they  were  liable  for  neglect  in  the  main- 
tenance of  a common  sewer,  because  that  is  one  of  the  execu- 
tive duties  imposed  on  the  city,  and  in  relation  to  it  they 
stand  like  any  private  corporation,  and  when  the  city,  as  they 
did  take  from  the  Jamaica-Pond  Aqueduct  Corporation  the 
powers  which  it  had,  substantially,  to  furnish  water  to 
the  city,  and  proceed  to  act  under  it  in  furnishing  water 
to  the  city,  they  stand  in  the  same  position  that  any  pri- 
vate corporation  would  stand,  who  was  discharging  the 
same  duties,  and  if  they  send  out  an  agent  or  employ 
agents  to  ascertain  what  the  works  are,  what  the  property  is 
that  they  propose  to  take,  and  in  the  performance  of  their 
duties  they  ascertain  certain  facts,  and  these  facts  are  re- 
ported to  the  commissioners  who  represent  the  city,  that 
report  and  those  statements  are  competent  evidence  against 


Argument  of  Shattuck. 


561 


* 


the  city  to  show  what  they  admit.  Of  course,  if  there  is  any 
error  here,  the  city  can  correct  it,  but  we  only  offer  it  as 
evidence  tending  to  show  what  the  measurements  are. 

Commissioner  Russell.  But  you  have  not  stated,  Mr. 
Shattuck,  whose  report  you  offer  to  show. 

Mr.  Shattuck.  This  is  one  of  the  reports  of  the  Co- 
chituate  Water  Board  made  to  the  — 

Mr.  Butler.  Oh,  no  ! 

Mr.  Shattuck.  Is  there  any  question  that  this  was  pub- 
lished by  the  Cochituate  Water  Board? 

Mr.  Butler.  It  is  published  by  the  City  Government, 
and  if  you  will  let  me  state,  sir,  I think  there  will  be  no 
question  about  this.  It  seems,  it  is  too  plain  for  argument, 
and  my  statement  will  be  the  best  argument.  By  law  the 
city  has  but  one  authorized  agent  to  deal  with  its  water, 
its  rights,  and  its  water  works,  and  that  is  the 
Cochituate  Water  Board,  or  the  new  board  estab- 
lished by  law  last  winter ; the  water  commissioners,  and  no 
other  person  or  agent  of  the  city  has  any  right  to  make  ex- 
periments or  to  say  anything  about  it.  That  book  is  pub- 
lished by  the  City  Government,  for  the  information  of  the 
citizens  ; it  is  not  a report  of  the  Cochituate  Water  Board, 
which  was  in  existence  at  the  time  this  was  prepared ; it  is  a 
gratuitous  work  of  a superintendent  of  one  division  of  the 
work,  who  desired  to  carry  on  the  history,  and  the  city  have 
published  it ; that  is  the  character  of  the  document.  I do 
not  know,  as  the  difference  is  but  slight,  but  what  I should 
like  to  let  it  go  in,  for  I suppose  if  it  goes  in  as  a declaration 
of  the  city,  then  all  the  declarations  made  at  the  same  time 
must  be  put  in  as  evidence,  for  them  as  well  as  against  them, 
and  I should  get  all  there  is  of  that  history  in  evidence,  and 
as  the  difference  in  the  water-shed  by  any  possible  error  is 
only  four  or  five  miles,  it  don’t  make  much  odds.  Perhaps 
that  would  be  the  better  rule,  but  we  are  now  standing  on 
the  question  of  evidence. 

Mr.  Shattuck.  Do  I understand  that  you  are  willing  to 
have  it  go  in  ? 

Mr.  Butler.  Not  yet.  We  are  now  standing  on  the 
question  of  evidence.  That  is  the  character  of  the  work 
offered. 

Commissioner  Russell.  I don’t  understand  that  the  book 
is  offered,  and  that  is  what  I propose  to  ask  Mr.  Shattuck ; 
whether  he  offers  that  book  as  a report  made  by  one  of  the 
departments  of  the  City  of  Boston  to  the  city  government  of 
Boston.  The  whole  book  you  offer? 

Mr.  Shattuck.  No,  I don’t  propose  to  offer  the  whole 
book. 


562 


Sterling  Mill. 


Commissioner  Russell.  Then  I understand  you  propose 
to  offer  that  extract  from  that  book,  and  my  difficulty  is  that 
I don’t  know  what  the  authority  is  of  that  extract,  — what  it 
purports  to  be.  I don’t  understand  that  what  you  offer  pur- 
ports to  be  the  report  of  any  official  to  any  department  of 
the  city — 

Mr.  Shattuck.  This  shows  exactly ; I offer  it  as  a re- 
port. It  is  a report  of  Desmond  Fitzgerald,,  Superintendent 
of  the  Western  Division  of  the  Cochituate  Water  Works. 

Commissioner  Russell.  Do  you  understand  the  whole 
of  that  is  a report  from  Desmond  Fitzgerald  to  the  City 
Government  ? 

Mr.  Shattuck.  The  first  part  of  it  here  is  a supplement ; 
the  whole  of  it  is  in  the  nature  of  a report.  It  is  a supple- 
ment to  Bradlee’s  history. 

Commissioner  Russell.  If  you  offer  the  whole  report, 
it  is  one  question  ; if  you  offer  a piece  of  that  report,  an 
extract,  which  may  be  the  statement  of  Mr.  Fitzgerald  or 
the  statement  of  anybody  else,  I cannot  pass  upon  the  admis- 
sibility of  it  without  knowing  what  it  is,  what  it  purports  to 
be,  and  by  what  authority  it  purports  to  come  here.  It  may 
be  an  extract  which  states  the  opinion  of  somebody  who  has 
nothing  to  do  with  the  city,  and  therefore  I ask  you  to  state 
what  you  propose  to  offer,  whether  it  is  the  book  itself,  and 
if  not,  what  extract  you  propose  to  offer? 

Mr.  Shattuck.  This  is  rather  an  irregular  way  of  deter- 
mining whether  the  evidence  is  admissible  on  the  opening. 

Mr.  Butler.  If  you  don’t  offer  it,  then  I have  no  ob- 
jection. 

Mr.  Shattuck.  It  was  not  regular  except  that  the  objec- 
tion was  taken,  and  I therefore  referred  to  the  book  because 
I have  no  particular  objections  to  having  the  question  consid- 
ered now ; but  still  perhaps  I had  better  go  on  with  my 
opening.  I withdraw  it  for  the  present. 

The  Sudbury  river,  we  say,  takes  about  22  per  cent,  of 
the  drainage  area  of  the  whole  of  the  Concord,  excluding 
Lake  Cochituate,  and  the  question  is  how  much  that  takes 
from  our  supply  at  the  Wamesit  dam?  It  is  conceded  by 
the  city,  and  stated  in  the  testimony  of  Mr.  Mills,  that  with- 
out the  Sudbury  river  there  was  a sufficient  amount  flowing 
in  the  Concord  river  to  supply  the  wastage  and  evaporation. 
It  is  hardly  necessary  to  read  that  now,  but  it  is  in  the  testi- 
mony of  Mr.  Mills.  Mr.  Mills  so  testified,  — page  90  of  the 
report. 

Mr.  Butler.  I will  agree  to  Mr.  Mills’  statements,  sir. 

Mr.  Shattuck.  I am  simply  going  to  read  what  his  state- 
ment is  : "I  have  no  question  but  there  is,  after  the  taking 


Argument  of  Shattuck. 


563 


of  this  water  from  the  upper  Sudbury,  sufficient  water  com- 
ing in  to  supply  the  evaporation,  and  for  all  wastage  in  the 
territory  below,  so  that  the  cutting  off  of  this  upper  Sud- 
bury water  would  be  a reduction  of  the  quantity  at  Wamesit 
dam,  or  at  Lawrence,  by  just  the  amount  of  the  water  so  cut 
off.”  Counsel  for  the  city  then  say,  as  they  do  now,  that 
they  suppose  that  it  is  so.  Now,  the  amount  of  the  evapo- 
ration on  the  water  surface  and  wet-meadow  surface,  which 
is  equivalent  for  all  purposes  of  evaporation  to  water  surface, 
during  four  months  in  the  year,  from  May  to  September,  not 
including  September,  — May,  June,  July,  and  August, — 
the  average  of  that,  according  to  experiments  which  were 
tried  on  the  Croton  Water  Works  in  New  York,  would  amount 
to  41  feet  per  second ; therefore,  in  order  to  furnish  288  feet 
at  the  Wamesit  dam,  329  feet  — that  is,  288  plus  41  — must 
have  certainly  been  poured  into  the  Sudbury  meadow,  and  as 
the  Sudbury  river  furnishes  22  per  cent,  of  that,  — as  we  say, 
it  furnishes  72  feet  per  second,  — the  Sudbury  river  furnishes 
72  feet,  and  as  that  is  to  come  to  us  without  evaporation  and 
without  loss,  in  that  way  we  really  lose,  by  the  taking  of  the 
Sudbury  river,  72  feet  out  of  the  288  feet  (I  may  not  have 
made  this  plain),  and  that  is  exactly  25  pen  cent.  Of  course 
this  does  not  happen  in  the  winter,  and  it  is  only  during  the 
four  months  when  the  evaporation  is  the  largest  that  25  per 
cent,  is  taken.  As  the  evaporation  is  a fixed  quantity, 
when  the  amount  coming  into  the  Concord  river  flow- 
ing over  the  Wamesit  dam  is  less  than  288  feet,  the  per- 
centage would  be  larger ; so  that  we  say  that  the  taking  of 
the  Sudbury  river  takes  from  our  water  at  the  Wamesit  dam 
a fraction  which  amounts  to  25  per  cent,  when  there  is  288 
feet  per  second,  and  during  the  four  months  when  the  evapo- 
ration is  the  largest,  and  when  less  than  288  feet  fall  over  the 
dams,  the  percentage  is  larger  than  that.  Of  course,  as  the 
amount  increases  beyond  288  feet  per  second,  the  percentage 
is  reduced. 

I have  thus  gone  over  the  three  considerations,  first,  how 
much  the  city  takes  from  the  Sudbury  river ; second , how 
much  of  the  effective  power  runs  in  the  Concord  river  ; and, 
in  the  third  place,  what  proportion  of  it  is  taken. 

The  only  remaining  problem  is  to  apply  that  to  each  mill, 
and  ascertain  what  the  loss  of  power  is,  and  what  it  will  cost 
practically  to  supply  it.  The  Sterling  mill,  having  36  feet 
per  second  when  there  are  288  feet,  has  practically  about 
72  horse-power  applicable  to  machinery,  — effective  horse- 
power ; it  is  not  the  mathematical  horse-power  caused  by  the 
falling  of  water  such  a distance,  but  what  can  be  got  from 
awheel. 


564 


Steeling  Mill. 


Commissioner  Bussell.  How  much  is  the  fall? 

Mr.  Shattuck.  It  is  a little  over  24  feet.  Of  course,  it 
varies  with  the  height  of  the  river.  When  the  water  is  on 
the  same  level,  of  course  it  is  always  the  same,  unless  there 
is  hack  water  below ; but  the  higher  the  level  the  greater  the 
fall,  unless  there  is  back  water. 

Now,  we  take  one-fourth  of  that  72  horse-power,  and  it 
gives  us  the  loss  on  that  mill,  18  horse-power.  That  pro- 
portion, as  I have  already  said,  will  be  larger  if  the  water 
falls  off,  and  will  be  smaller  when  the  water  increases  in  vol- 
ume. That  18  horse-power  must  be  furnished  by  steam.  If 
the  mill  were  not  there,  no  such  mill  as  they  have  there  now 
would  be  built  after  this  water  is  taken  ; but  the  mill  being 
there,  the  question  is  how  much  damage  is  caused?  We  get 
at  it  by  ascertaining  what  we  can  replace  that  power  for,  and 
you  have  had  testimony  upon  that  point.  Of  course,  we  can 
get  at  it  in  two  ways.  We  can  ascertain  what  they  sell 
power  like  that  for  in  Boston,  and  what  it  is  sold  for  in 
Lowell,  where  rents  are  a little  lower  and  coal  a little 
cheaper ; and  we  are  to  consider  all  by  supplementing  the 
water,  how  much  it  laps  over,  as  was  testified  to  by  the  wit- 
ness the  other  day.  Of  course,  we  don’t  care  to  consider, 
because  it  cannot  be  considered  accurately,  if  there  is  any 
lapping  over,  butfit  is  clear  a larger  steam-engine  is  required 
than  the  one  to  furnish  18  horse-power.  You  must  have  one 
two  or  three  times  larger,  and  that  will  make,  as  we  say, 
where  such  a small  amount  of  power  is  furnished,  the  cost, 
at  least,  $150  per  horse-power  ; and  we  ask  for  a sum  which, 
at  a fair  rate  of  interest,  certainly  where  a matter  is  certain, 
as  it  is  here,  at  the  present  time.  Not  over  5 per  cent, 
should  be  allowed,  because  it  is  something  that  is  absolutely 
sure,  — a sum  which  at  5 percent,  would  furnish  us  with  the 
horse-power  permanently.  Of  course,  it  is  in  your  hands  to 
determine  how  much  of  the  year.  We  say  we  should  pro- 
vide for  it  nine  months,  and  the  time  when  the  steam  will  be 
used  is  not  during  any  fixed  period  of  the  year ; but  nobody 
can  determine,  at  any  time,  whether  the  engine  may  be 
wanted  the  next  day  after,  and  they  must  therefore  always 
be  ready  with  help  and  material  to  use  the  steam.  It  is 
therefore  to  be  used  under  most  unfavorable  circumstances,  * 
and,  as  we  say,  an  amount  which  will  come  practically  to 
nine  months  in  the  year. 

I think  that  it  might  be  that, ’more  or  less,  for  nine  months 
in  the  year.  Of  course  we  may  have  days  where  the  stream 
supplied  may  be  very  small.  On  this  theory  we  should  be 
obliged  to  use  steam,  that  is,  there  will  be  a limitation  and 
diminution  of  our  power,  when  the  whole  amount  of  water 


Argument  of  Siiattuck. 


565 


running  over  the  dam  is  384  feet  per  second;  because,  when 
it  falls  below  384  feet  per  second,  if  we  take  out  one  quarter 
of  it,  it  will  fall  below  288  ieet.  The  question  is,  therefore, 
how  many  days  in  the  year  the  water  exceeds  384  feet  per 
second,  or  equals  288  per  second,  and  we  say  that  it  does 
not  come  up  to  that  very  large  amount,  did  not  come  up  to 
that  very  large  amount,  for  more  than  three  months  in  the 
year. 

Mr.  Butler.  Did  you  state  what  the  saving  would  be  of 
that  amount? 

Mr.  Siiattuck.  I say  what  that  amount  would  be  as 
applied  to  this  mill  is  a matter  of  easy  calculation. 

Mr.  Butler.  You  have  calculated  it,  I suppose? 

Mr.  Siiattuck.  I do  not  think  I have  the  figures  in  my 
mind  now.  I don’t  care  to  calculate  it  in  the  opening  ; the 
witnesses  can  go  through  it  more  particularly  than  I can. 

Mr.  Butler.  We  have  gone  on  with  these  cases  for 
some  weeks.  I wish  somebody  would  state  how  much  they 
have  been  injured. 

Mr.  Shattuck.  Well,  we  have  got  very  good  materials. 
So  that  the  damage  begins  when  it  falls  below  384  feet  per 
second. 

Mr.  Butler.  I take  that  back  ; I believe  brother  Hodges 
did  state  that. 

Commissioner  Francis.  Where  does  he  get  that  384? 
I do  not  understand. 

Mr.  Shattuck.  I assume  that  the  Sudbury  river  takes 
away  one  fourth  of  the  water,  and,  therefore,  if  there  was 
384  feet  flowing  over  the  Wamesit  dam  and  they  took  away 
one-fourth,  that  it  would  reduce  it  down  to  288. 

Mr.  Butler.  It  was  claimed  before  that  72  feet  was 
taken. 

Mr.  Shattuck.  Well,  72  feet  when  288  is  flowing.  Of 
course  the  amount  taken  varies  with  the  height  of  the  river. 
If  there  was  384  feet  flowing  over  the  Wamesit  dam,  as  it  was 
before,  there  would  be  about  96  feet  taken,  and  that  96  would 
reduce  the  amount  down  to  288, — an  amount  below  that  to 
which  they  were  entitled.  This  is  the  difficulty  : when  there 
is  the  highest  evaporation  we  were  deprived  of  water  three 
months,  and  the  percentage  as  I have  already  stated. 

I will  only  say  as  to  the  Belvidere  Manufacturing  Com- 
pany, we  have  a mill  situated  here  (pointing  to  the  map). 

Commissioner  Russell.  It  is  the  Belvidere  Company, 
and  not  the  Stott  mill  ? 

Mr.  Shattuck.  The  Belvidere  mill.  You  have  two ; 
that  is  one.  It  is  seventy-two  feet  per  second,  and,  in  other 
respects  stands  in  the  same  footing. 


566 


Case  of  S.  N.  Wood. 


Mr.  Butler.  They  are  seventy-two  per  second,  and  in 
all  other  respects  the  same. 

Commissioner  Russell.  And  that  is  included  in  this 
same  petition? 

Mr.  Shattuck.  No,  sir ; that  is  in  another  petition  which 
I have  not  put  in  until  we  come  to  the  next  case. 


OPENING  ARGUMENT  OF  DAN’L.  S.  RICHARDSON,  ESQ. 

Mr.  Richardson,  before  opening  his  argument,  read  the 
following  petition : — 

To  the  Hon.  the  Justice  of  the  Superior  Court  novo  liolden  at 

Cambridge , within  and  for  the  County  of  Middlesex  and 

Commonwealth  of  Massachusetts , — 

Your  petitioner,  Samuel  N.  Wood,  of  Lowell,  in  said  county, 
respectfully  represents  that  he  is  now,  and  has  been  for  more  than 
three  years  now  last  past,  the  owner  in  fee  simple,  and  possessed 
of  a certain  parcel  of  land,  with  the  buildings  and  mill  thereon, 
situate  in  said  Lowell  near  the  land  owned  by  the  Lowell  Bleachery 
Compan}7,  described  as  follows,  viz.  : commencing  at  the  south- 
easter^ corner  thereof  at  a stake  at  land  formerly  of  Oliver  M. 
Whipple,  thence  at  an  angle  of  101°  18'  35"  westerly  b}7  said  land 
formerlj7  of  said  Whipple,  one  hundred  and  eight}7-one  and  one 
tenth  feet  to  River  Meadow  brook  ; thence  northeasterly  along  said 
brook  fifty-one  and  31-100  feet  to  a stake  at  land  formerly  of  said 
Whipple ; thence  at  an  angle  of  102°  59'  09"  easterly  along  land 
formerly  of  said  Whipple  one  hundred  and  seventy-nine  and 
57-100  feet  to  a stake ; thence  at  an  angle  of  78°  41'  25"  south 
33f°  west  fifty  feet  and  99-100  to  the  point  begun  at.  Also  the 
following  described  parcel  situate  in  said  Lowell,  which  is  forever 
to  be  kept  open  as  a street  or  way  for  the  use  of  said  Wood,  his 
heirs  and  assigns  and  the  abuttors  thereon,  commencing  at  the 
southwesterly  corner  of  the  above  described  premises  at  a stake, 
thence  at  an  angle  of  102°  59'  09"  westerly,  it  being  a continuation 
of  the  southerly  line  of  the  above  described  premises  (and  over 
said  brook,)  one  hundred  sixty-six  and  50-100  feet  to  the  easterly 
line  of  a street  now  or  formerly  called  Orange  street,  which  is  for- 
ever to  be  kept  open,  thirty  feet  in  width,  and  extend  to  its  inter- 
section with  Crosby  street,  thence  b}7  the  easterly  side  of  Orange 
street  thirty-one  and  20-100  feet  to  a stake  at  land  formerly  of  said 
Whipple  ; thence  at  an  angle  with  said  Orange  street  of  105°  40' 
bj7  land  formerly  of  said  Whipple  one  hundred  and  sixty-five  feet 
to  a stake  at  the  easterly  side  of  said  brook  at  a point  twenty  feet 
southerly  by  the  northwest  corner  of  the  first-described  premises, 
said  street  or  way  to  be  so  constructed  as  not  to  diminish  the 
capacity  of  said  brook  or  to  obstruct  the  flow  of  water  therein. 
Also  the  right,  privilege  and  easement  to  pass  with  care  over  the 
railroad  leading  from  the  Boston  and  Lowell,  Lowell  and  Lawrence, 


Petition. 


567 


and  Salem  and  Lowell  railroads  at  Whipple’s  station,  over  land 
formerly  of  said  Whipple  to  the  first-described  lot,  as  said  railroad 
is  now  constructed,  or  as  it  may  be  constructed  by  the  proprietors 
of  the  several  grants  now  made,  or  which  may  be  made  by  the  said 
Whipple,  his  heirs  and  assigns,  with  the  right  to  construct  a side 
track  over  land  formerly  of  said  Whipple  formerly,  and  within 
fifteen  feet  of  the  easterly  line  of  the  first-granted  premises,  and  in 
a line  parallel  thereunto,  which  may  be  extended  in  the  same 
direction  to  a point  twenty-five  feet  northerly  of  the  northeasterly 
corner  of  the  first-described  premises,  the  use  of  said  railroad 
being  in  common  with  said  Whipple,  his  heirs  and  assigns,  and  in 
common  with  other  grants  now  made  or  which  may  be  made  by  said 
Whipple,  his  heirs  and  assigns,  being  such  right  to  use  and  rebuild 
the  present  railroad  track  as  conveyed  to  him,  subject  to  the  rights 
of  others  in  said  tracks,  and  subject  to  changes  of  direction  of 
said  tracks,  and  in  case  said  railroad  shall  be  discontinued 
a right  to  pass  and  repass  with  teams  over  land  formerly  of 
said  Whipple  from  Lawrence  street  to  the  aforesaid  premises. 
Also,  the  right,  privilege  and  easement  forever  to  take  water  from 
the  canal  formerly  of  said  Whipple  to  the  extent  hereinafter  speci- 
fied, said  canal  leading  out  of  Concord  river,  and  all  in  said  Lowell, 
by  means  of  a head  raceway  to  enter  said  canal  and  conduct  water 
therefrom  to  the  above-described  premises,  to  be  used  thereon,  the 
same  to  be  done  in  such  manner  as  in  no  way  to  weaken  said  canal 
or  the  banks  thereof  or  interrupt  the  flow  of  water  in  said  canal. 
Also  the  right  for  said  water  to  enter  said  canal  from  Concord 
river  to  the  extent  hereinafter  specified.  Also  the  right  forever  to 
have  said  canal  and  the  banks  thereof,  and  the  permanent  dam  and 
flashboards,  formerly  of  said  Whipple,  across  Concord  river,  in  said 
Lowell,  and  which  dam  has  existed  .there  more  than  twenty  j^ears, 
still  continued  for  the  purpose  of  affording  a water-power  to  the 
extent  and  with  the  exceptions  and  reservations  last  herein  set 
forth.  The  quantity  of  water  which  he  has  the  right  to  draw  from 
said  canal  by  said  Wood,  his  heirs  and  assigns,  is  strictly  limited 
to  and  shall  not  exceed  twelve  cubic  feet  per  second  for  eleven  and 
one  quarter  hours  per  day  of  six  days  in  the  week,  and  if  at  any 
time  the  quantity  of  water  in  the  canal  shall  not  be  equal  to  two 
hundred  and  eighty-eight  feet  per  second  during  the  above  specified 
time,  then  said  Wood,  his  heirs  and  assigns,  shall,  during  such 
time,  be  restricted  to  one  twenty-fourth  part  of  the  quantity  of 
water  in  said  canal.  Also  the  right  to  conduct  water  into  River 
Meadow  brook  by  the  tail  raceway  formerly  of  said  Whipple. 
And  your  petitioner  further  represents  that  more  than  three  years 
ago  he  constructed  on  said  premises  a mill  with  suitable  wheels 
and  apparatus  for  a grain-mill  and  for  utilizing  the  water-power 
aforesaid,  and  has  ever  since  used  the  same.  And  your  petitioner 
further  says  that  for  more  than  three  years  now  last  past,  and  now, 
he  is  and  has  been  seized  and  possessed  of  the  land,  buildings, 
rights,  privileges,  easements  and  water-power  aforesaid,  in  fee 
simple,  and  of  right  ought  to  enjoy  the  same  uninjured,  and  the 
use  of  the  waters  in  Sudbury  river  and  Farm  pond  and  their  tribu- 
taries, as  they  would  naturally  flow  into  Concord  river  and  said 


568 


Case  of  S.  N.  Wood. 


canal  to  his  said  premises,  the  said  Sudbury  river  and  Farm  pond 
having  been  from  time  immemorial  tributary  to  and  flowing  into 
said  Concord  river,  and  suppling  the  same  in  natural  channels 
with  large  quantities  of  water  above  said  dam  and  canal.  And 
your  petitioner  says  that  for  more  than  three  years  last  past  he 
has  had  and  still  has  and  possesses  in  fee  simple  the  right  that  said 
Concord  river  should  flow  in  the  same  manner,  quantity,  volume 
and  force,  and  within  the  same  limits  and  channel,  and  with  the 
same  sources  of  supply  as  sard  river  did  before  the  action  of  the 
City  of  Boston,  hereinafter  set  forth  and  had  done  from  time  im- 
memorial, and  that  the  water  thereof  should  continue  to  flow  to 
said  dam  and  canal  in  its  accustomed  and  ancient  channel  and  by 
said  canal  (and  head  raceway  and  flume  and  suitable  sluiceways 
made  by  the  petitioner)  on  to  his  premises  aforesaid,  so  that  the 
quantity  of  water  above  described  belonging  to  him  might  flow  on 
to  his  said  premises  to  be  used  by  him  for  water-power  and  other 
purposes  on  said  premises,  and  to  flow  over  and  off  the  same. 
And  petitioner  says  he  is  and  for  more  than  three  years  last  past 
has  been  seized  and  possessed  in  fee  simple  of  the  right  to  have 
the  waters  of  said  Farm  pond,  so  called,  situate  in  Framingham, 
in  said  county,  and  of  Sudbury  river,  and  their  tributaries,  flow  in 
their  natural  and  ancient  channels  into  said  Concord  river  above 
said  dam  and  canal,  and  to  said  dam  and  canal,  and  through  said 
canal  to  and  on  and  over  his  premises  aforesaid  to  supply  him  with 
his  water-rights  and  water-power  aforesaid  thereon,  as  they 
naturally  would  have  done,  but  for  the  acts  and  doings  of  said  city 
as  herein  set  out.  And  your  petitioner  further  represents  that  by 
virtue  of  an  act  of  the  legislature  of  the  Commonwealth  of  Massa- 
chusetts, entitled,  An  Act  to  authorize  the  City  of  Boston  to 
obtain  an  additional  supply  of  pure  water,”  approved  April  8,  1872, 
the  said  City  of  Boston,  situate  in  the  county  of  Suffolk,  has, 
within  three  years  last  past,  first  actually  taken  at  the  point  or 
points  authorized  by  said  act,  through  the  agency  pointed  out  in 
said  act,  and  for  the  purposes  therein  set  forth,  all  the  waters  of 
said  Sudbury  river,  and  all  the  waters  of  said  Farm  pond,  and  of 
the  streams  and  tributaries,  whether  natural  or  artificial,  flowing 
into  them,  by  means  of  certain  dams,  obstructions  and  works  built 
by  said  city  under  said  act  and  the  authority  thereof  and  for  the 
purposes  therein  authorized,  and  still  continues  and  maintains  said 
taking  and  said  dam,  obstruction  and  works,  and  have  withdrawn  and 
diverted  the  waters  of  said  Sudbury  river  and  Farm  pond,  and  their 
tributaries,  from  their  natural  flow,  course  and  current,  so  that  the 
waters  thereof  no  longer  flow  into  Concord  river,  and  are  prevented 
by  said  city  from  so  flowing  and  from  passing  in  their  natural 
channel,  and  by  said  canal  to  and  on  said  premises  of  your  peti- 
tioner, as  your  petitioner  is  rightfully  entitled  to  have  them  flow, 
and  as  the}7  would  flow  naturally  if  not  so  interrupted.  And  your 
petitioner  says  by  the  said  acts  of  the  said  City  of  Boston  he  is 
deprived  of  a large  part  of  his  water  power,  rights,  mill  privileges, 
and  other  rights  aforesaid,  and  of  his  rights  to  the  natural  flow  of 
water  to  and  in  said  Concord  river  and  to  said  dam  and  canal,  and 
of  the  right  to  have  the  same  flow  from  said  Concord  river  by  said 


Petition. 


569 


canal  to  and  upon  and  over  his  said  premises  to  supply  his  rights, 
easements,  privileges  and  water-power  aforesaid  upon  the  premises 
aforesaid,  and  the  City  of  Boston  has  taken  and  appropriated,  as 
aforesaid,  all  the  waters  of  said  Sudbury  river  and  Farm  pond  and 
their  tributaries  to  their  own  use,  to  the  great  damage  of  your 
petitioner  sustained  in  his  property  aforesaid.  And  your  petitioner 
says  that  by  the  taking  of  the  waters  of  said  Sudbury  river  and 
Farm  pond  and  their  tributaries,  and  by  the  erection  and  main- 
tenance of  their  said  dam  and  works  and  the  acceptance  and 
exercise  of  the  powers  and  privileges  given  by  said  act  by  said 
city,  and  by  the  acts  and  doings  of  said  city  under  said  act,  and  by 
their  taking,  interfering  with  and  injuring  the  use  and  enjoyment 
of  the  water  of  said  river,  to  which,  at  the  time  of  said  taking, 
your  petitioner  was  justly  entitled,  your  petitioner  has  sustained 
great  damages  in  his  property,  and  he  has  not  agreed  and  has  not 
been  able  to  agree  with  said  City  of  Boston  upon  the  damages  to 
be  paid  him  therefor,  and  said  city  has  not  offered  to  pay  him  as 
damages  any  sum  whatever.  Wherefore  your  petitioner  prays  the 
Honorable  Court  for  the  assessment  of  his  said  damages  for  the 
taking  of  the  said  waters  of  said  Sudbury  river  and  Farm  pond  and 
tributaries  and  the  acts  and  doings  of  said  city  aforesaid,  and  that 
after  due  notice  and  summons  to  said  City  of  Boston  this  Honorable 
Court  will  appoint,  upon  default  or  hearing  of  said  City  of  Boston, 
three  judicious  and  disinterested  freeholders  of  this  Commonwealth 
who  shall  assess  said  damages  according  to  law,  and  that  all  such 
other  and  further  proceedings  may  be  had  in  the  premises  as  to 
law  and  justice  shall  appertain. 

SAMUEL  N.  WOOD. 

Lowell,  June  10,  1875. 

The  next  case  will  be  Luther  W.  Faulkner,  the  same 
petition  substantially. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Middlesex  ss. 

[l.s.]  To  the  Sheriffs  of  our  several  Counties  or  their  Deputies , 

Greeting  : — 

We  command  you  to  summon  the  City  of  Boston,  a municipal 
corporation,  established  under  the  laws  of  this  Commonwealth,  in 
the  County  of  Suffolk,  to  appear  before  the  Justices  of  our  Supe- 
rior Court,  to  be  holden  at  Lowell  within  and  for  our  County  of 
Middlesex,  on  the  first  Monday  of  September  next,  and  answer  to 
the  petition  of  Luther  W.  Faulkner,  of  Billerica,  in  said  County 
of  Middlesex,  filed  in  the  Office  of  the  Clerk  of  the  Courts  for  said 
County  of  Middlesex  on  the  day  of  the  date  hereof,  a true  and 
attested  copy  of  which  petition  is  hereto  annexed. 

And  have  you  there  this  writ  with  your  doings  thereon. 

Witness , Lincoln  F.  Brigham,  Esquire,  at  Cambridge,  this  tenth 
day  of  June,  one  thousand  eight  hundred  and  seventy-five. 

THEO  C.  HURD, 

Clerk . 


570 


Case  of  L.  W.  Faulkner. 


To  the  Honorable  the  Justice  of  the  Superior  Court , now  holden  at 

Cambridge,  within  and  for  the  County  of  Middlesex  and  Com- 
monwealth of  Massachusetts : — 

Yonr  petitioner,  Luther  W.  Faulkner,  of  Billerica,  in  said  county, 
respectfully  represents  that  he  now  is  and  has  been  for  more  than 
three  j^ears  now  last  past  the  owner  in  fee  simple  and  possessed  of 
certain  pieces  or  parcels  of  land,  with  the  buildings  thereon,  situ- 
ate in  Lowell,  in  said  county,  which  are  bounded  and  described  as 
follows,  viz. : One  piece  or  parcel  of  land  situate  on  the  southeast- 
erly side  of  Grove  street  so  called,  containing  about  eight  thou- 
sand seven  hundred  and  forty-one  square  feet,  thus  bounded  and 
described  : beginning  on  the  southeasterly  side  of  said  Grove 
street  at  a stone  bound,  which  is  about  twenty  feet  distant  south- 
westerly from  a canal,  thence  running  along  land  formerly  of 
Ephraim  B.  Patch  south  twenty-nine  degrees,  east  one  hundred 
and  fifty  feet,  to  a stone  bound  ; thence  along  land  formerly  of 
said  Patch  south  thirty-three  degrees,  west  sixty-six  feet,  to  a 
stone  bound ; thence  along  land  formerly  of  said  Patch  north 
twenty-nine  degrees,  west  one  hundred  and  fifty  feet,  to  a stone 
bound  at  said  Grove  street ; thence  north  thirty-three  degrees, 
east  along  said  Grove  street  sixty-six  feet,  to  the  point  of  begin- 
ning. Also  a certain  other  piece  or  parcel  of  land,  containing 
about  eighteen  thousand  two  hundred  and  eighty-one  square  feet, 
more  or  less,  and  thus  bounded  and  described  : beginning  at  a 
stone  bound  at  the  westerly  corner  of  the  premises  at  the  southerly 
corner  of  land  sold  by  Oliver  M.  Whipple  to  Alfred  H.  Chase, 
and  conveyed  by  deed  dated  February  20th,  1863,  thence  running 
northeaster^  by  said  Chase’s  land  formerly,  about  one  hundred 
and  twent}^-nine  feet,  to  a drill-hole  in  the  stone  at  Concord  river; 
thence  south  twenty-four  degrees,  east  in  the  said  Concord  river 
abour  one  hundred  and  seventy  and  seventy -four  one-hundredths 
feet,  to  a corner  of  the  river  w’all ; thence  south  seventy-three 
degrees,  west  about  thirty-three  feet,  to  a corner  of  the  wall  on 
the  west  side  of  the  raceway  ; thence  south  sixty-eight  degrees, 
west,  crossing  said  raceway"  seventy-seven  and  sixty-eight  one- 
hundredths  feet  to  a stone  bound  ; thence  north  thirty  degrees, 
west  about  one  hundred  and  fifty  feet  to  the  point  begun  at ; also 
other  land  adjoining  said  last-described  piece.  And  your  peti- 
tioner further  represents  that  he  is  and  has  been  for  more  than 
three  years  now  last  past  the  owner  and  has  possessed  and  now 
possesses  the  right,  privilege,  and  easement,  by  means  of  the  canal 
aforesaid  leading  from  Concord  river  along  the  southwesterly  side 
of  said  last-described  parcel  of  land,  to  take  water  from  said 
river,  and  by  means  of  head  racewa}Ts  to  enter  the  said  canal  at 
any  point  opposite  said  last-described  parcel  of  land,  and  to  con- 
duct the  water  to  the  said  last-described  lot  of  land  to  be  used 
thereon,  also  the  right  for  the  waters  of  said  Concord  river  to  enter 
said  canal  to  the  extent  hereinafter  specified,  and  the  right  forever 
to  have  said  canal,  and  the  banks  thereof,  and  the  permanent  dam 
and  flash-boards,  formerly  owned  by  Oliver  M.  Whipple,  across 
said  river  in  said  Lowell,  and  which  dam  has  there  existed  more 
than  twenty  years,  still  continued  for  the  purpose  of  affording  a 


Petition. 


571 


water-power,  and  to  the  extent  and  with  the  reservations  and 
exceptions  hereinafter  contained.  The  quantity  of  water  which 
your  petitioner  for  more  than  three  years  now  last  past  has  had 
the  right  to  draw,  and  now  has  the  right  to  draw,  from  said  river, 
by  means  of  said  canal,  was  and  is  twenty-five  cubic  feet  per  sec- 
ond, for  eleven  and  one-quarter  hours  per  day  of  six  days  of  the 
week,  subject,  however,  to  this  limitation,  that,  if  at  any  time  the 
quantity  of  water  in  said  canal  should  not  equal  two  hundred  and 
eighty-eight  cubic  feet  per  second  during  the  time  aforesaid,  then 
your  petitioner  was  and  is  restricted  to  twenty-five  two  hundred 
eighty-eighths  of  the  quantity  of  water  in  said  canal.  And  your 
petitioner  further  says  that  he  now  is  and  has  been  for  more  than 
three  years  now  last  past  the  owner  of  a certain  factory  and  mill 
situate  upon  the  second-described  lot  of  land,  and  used  in  the 
manufacture  of  woollen  goods,  and  that  the  power  for  running  the 
same  was  obtained  from  Concord  river  through  the  canal  aforesaid, 
in  the  manner  and  to  the  extent  hereinbefore  stated.  And  your 
petitioner  further  says  that  for  more  than  three  years  now  last  past 
he  has  been  and  now  is  seized  and  possessed  of  the  land,  build- 
ings, rights,  privileges,  easements,  and  water-power  aforesaid  in 
fee  simple,  and  of  right  ought  to  enjoy  the  same  uninterrupted ; 
and  the  use  of  the  waters  in  Sudbury  river  and  Farm  pond  and 
their  tributaries  as  they  would  naturally  flow  into  said  Concord 
river  and  said  canal  to  his  said  premises,  the  said  Sudbury  river 
and  Farm  pond  having  been  from  time  immemorial  tributary  to 
and  flowing  into  Concord  river,  and  supplying  the  same  in  natural 
channels  with  large  quantities  of  water  above  said  dam  and  canal. 
And  your  petitioner  says  that  for  more  than  three  3rears  last  past 
he  has  had  and  still  has  and  possesses  in  fee  simple  the  right  that 
said  Concord  river  should  flow  in  the  same  manner,  quantity,  vol- 
ume, and  force,  and  within  the  same  limits  and  channel,  and  with 
the  same  sources  of  supply,  as  said  river  did  before  the  action  of 
said  City  of  Boston  hereinafter  set  out,  and  had  done  from  time 
immemorial ; and  that  the  water  thereof  should  continue  to  flow  to 
said  dam  and  canal  in  its  accustomed  and  ancient  channel,  and  by 
,said  canal  and  head  raceways  and  flume  and  suitable  sluiceways 
made  by  petitioner  on  to  his  premises  aforesaid  so  that  the  quan- 
tity of  water  above  described  belonging  to  him  might  flow  on  to 
his  said  premises  to  be  used  by  him  for  water-power  and  other 
purposes  on  his  said  premises,  and  to  flow  over  and  off  the  same. 
And  your  petitioner  says  that  he  is  and  for  more  than  three  years 
last  past  has  been  seized  and  possessed  in  fee  simple  of  the  right 
to  have  the  waters  of  said  Farm  pond  so  called,  situate  in  Fra- 
mingham, in  said  county,  and  of  Sudbury  river,  and  their  tribu- 
taries, flow  in  their  natural  and  ancient  channels  into  said  Concord 
river  above  said  dam  and  canal,  and  to  said  dam  and  canal,  and 
through  said  canal  to  and  on  and  over  his  said  premises  to  supply 
him  with  his  water-rights  and  water-power  as  aforesaid  thereon,  as 
they  naturally  would  have  done  but  for  the  acts  and  doings  of  said 
City  of  Boston  as  herein  set  out.  And  your  petitioner  further 
represents,  that,  by  virtue  of  an  act  of  the  Legislature  of  the 
Commonwealth  of  Massachusetts  entitled,  “An  Act  to  authorize 


572 


Case  of  L.  W.  Faulkner. 


the  City  of  Boston  to  obtain  an  additional  supply  of  pure  water,” 
approved  April  8,  1872,  the  said  City  of  Boston,  situate  in  the 
County  of  Suffolk,  has  within  three  years  last  past,  first,  actually 
taken  at  the  point  or  points  authorized  by  said  act,  through  the 
agency  pointed  out  in  said  act,  and  for  the  purposes  therein  set 
forth,  all  the  waters  of  said  Sudbury  river,  and  all  the  waters  of 
said  Farm  pond,  and  of  the  streams  and  tributaries,  whether  natu- 
ral or  artificial,  flowing  into  them,  by  means  of  certain  dams,  ob- 
structions, and  works  built  by  said  city,  under  said  act  and  the 
authority  thereof,  and  for  the  purposes  therein  authorized,  and  still 
continues  and  maintains  said  taking  and  said  dam,  obstructions, 
and  works,  and  have  withdrawn  and  diverted  the  waters  of  said 
Sudbury  river  and  Farm  pond  and  other  tributaries,  from  their 
natural  flow,  course,  and  current,  so  that  the  waters  thereof  no 
longer  flow  into  said  Concord  river,  and  are  prevented  by  said 
city  from  so  flowing  and  from  passing  in  their  natural  channel, 
and  by  said  canal  to  and  on  said  premises  of  your  petitioner,  as 
your  petitioner  is  rightly  entitled  to  have  them  flow,  and  as  they 
would  flow  naturally  if  not  so  interrupted.  And  your  petitioner 
says  that  by  the  acts  of  the  said  City  of  Boston  he  is  deprived  of 
a large  part  of  his  water-power,  rights,  mill  privileges,  and  other 
rights  aforesaid,  and  of  his  right  to  the  natural  flow  of  water  to 
and  in  said  Concord  river,  and  to  said  dam  and  canal,  and  of  the 
right  to  have  the  same  flow  from  said  Concord  river  by  said  canal 
to  and  upon  and  over  his  said  premises  to  supply  his  rights,  ease- 
ments, privileges,  and  water-power  aforesaid  upon  his  said  prem- 
ises, and  the  said  City  of  Boston  has  taken  and  appropriated  as 
aforesaid  all  the  waters  of  said  Sudbury  river  and  Farm  pond  and 
their  tributaries  to  their  own  use,  to  the  great  damage  of  your  peti- 
tioner sustained  in  his  property  aforesaid.  And  your  petitioner 
further  says,  that,  by  the  taking  of  the  waters  of  said  Sudbury 
river  and  Farm  pond  and  their  tributaries,  and  by  the  erection  and 
maintenance  of  their  said  dam  and  works,  and  by  the  acceptance 
of  the  powers  and  privileges  given  by  said  act  by  said  cit}7,  and 
by  the  acts  and  doings  of  said  city  under  said  act,  and  by  their 
taking  and  interfering  with  and  injuring  to  the  use  and  enjoyment 
of  the  waters  of  said  river,  to  which  at  the  time  of  such  taking 
your  petitioner  was  justly  entitled,  your  petitioner  has  sustained 
great  damage  in  his  property,  and  he  has  not  agreed,  and  has  not 
been  able  to  agree,  with  said  City  of  Boston  upon  the  damages  to 
be  paid  him  therefor,  and  said  city  has  not  offered  to  pay  him  as 
such  damages  any  sum  whatever.  Wherefore  your  petitioner  prays 
this  Honorable  Court  for  the  assessment  of  his  said  damages  for 
the  taking  of  the  said  waters  of  said  Sudbury  river  and  Farm  pond 
and  their  tributaries,  and  the  acts  and  doings  of  said  city  afore- 
said, and  that,  after  due  notice  and  summons  to  said  City  of  Bos- 
ton, will  appoint,  upon  default  or  hearing  of  said  City  of  Boston, 
three  judicious  and  disinterested  freeholders  of  this  Common- 
wealth, who  shall  assess  said  damages  according  to  law  ; and  that 
all  such  other  and  further  proceedings  may  be  had  in  the  premises 
as  to  law  and  justice  shall  appertain. 

June  10,  1875.  LUTIIER  W.  FAULKNER. 


Deed. 


573 


Suffolk,  ss.  Boston,  July  16,  1875.  By  virtue  hereof  I this 
day  summoned  the  City  of  Boston,  within  named,  to  appear  and 
answer  at  Court,  by  giving  in  hand  attested  copies  of  this  writ 
and  petition  annexed,  to  Charles  H.  Dennie,  Esq.,  Treasurer,  and 
Samuel  F.  McCleary,  Esq.,  Clerk,  of  said  City  of  Boston. 

BENJAMIN  F.  BAYLEY, 

Deputy  Sheriff. 

Commissioner  Russell.  The  description  of  the  land,  do 
yon  want,  General  ? 

Mr.  Butler.  No,  sir ; you  need  not  read  the  descrip- 
tion. 

Mr.  Richardson.  Twenty-five  feet  per  second.  The  an- 
swer is  the  same  as  in  the  other  case,  and  I put  in  the  deed. 
First,  the  deed  of  Ephraim  B.  Patch  to  Luther  W.  Faulk- 
ner, dated  the  fifth  day  of  October,  in  the  year  1863.  It  is 
a deed  from  Patch  : — 

Know  all  men  by  these  Presents , That  I,  Ephraim  B.  Patch,  of 
Lowell,  in  the  County  of  Middlesex  and  Commonwealth  of  Mas- 
sachusetts, in  consideration  of  five  thousand  two  hundred  dollars, 
to  me  paid  by  Luther  W.  Faulkner,  of  Billerica,  in  said  County 
of  Middlesex,  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  remise,  release  and  forever  quitclaim  unto  the  said  Faulk- 
ner, his  heirs  and  assigns,  a certain  piece  or  parcel  of  land  situate 
in  said  Lowell,  on  the  southeasterly  side  of  Grove  street,  so 
called,  containing  about  eight  thousand  seven  hundred  and  forty- 
one  square  feet,  thus  bounded  and  described  ; beginning  on  the 
southeasterly  side  of  said  Grove  street  at  a stone  bound,  which  is 
about  twenty-five  feet  distant  southwesterly  from  the  canal  as  it 
now  exists ; thence  running  along  said  Patch’s  other  land,  S.  29°, 
E.  one  hundred  and  fifty  feet  to  a stone  bound  ; thence  along  said 
Patch’s  other  land,  S.  33°,  W.  sixty-six  feet  to  a stone  bound ; 
thence  along  said  Patch’s  other  land,  N.  29°,  W.  one  hundred  and 
fifty  feet  to  a stone  bound  at  said  Grove  street ; thence  N.  33°,  E. 
along  said  Grove  street  sixty-six  feet  to  the  point  of  beginning. 

Also,  a certain  other  piece  or  parcel  of  land  situate  in  said 
Lowell,  containing  about  eighteen  thousand  two  hundred  and 
eighty-one  square  feet,  more  or  less,  and  thus  bounded  and 
described  ; beginning  at  a stone  bound  at  the  westerly  corner  of 
the  premises  at  the  southerly  corner  of  land  sold  by  Oliver  M. 
Whipple  to  Alfred  H.  Chase,  by  deed  dated  February  20th,  1863  ; 
thence  running  northeasterly  by  said  Chase’s  land,  about  one  hun- 
dred and  twenty-nine  feet  to  a drill-hole  in  the  stone  at  Concord 
river ; thence  S.  24°,  E.  in  the  said  Concord  river  about  one  hun- 
dred and  seventy  and  seventy-four  one-hundredths  feet  to  a 
corner  of  the  river  wall ; thence  S.  73°,  W.  about  thirty-three 
feet  to  a corner  of  the  wall  on  the  east  side  of  the  raceway ; 
thence  S.  68°,  W.  crossing  said  raceway  seventy-seven  and  sixty- 
eight  one-hundredths  feet  to  a stone  bound  ; thence  N.  30°,  W. 
about  one  hundred  and  fifty  feet  to  the  point  of  beginning. 


574 


Case  of  L.  W.  Faulkner. 


Also,  the  right,  privilege  and  easement  to  take  water  by  mean- 
of  the  canal  of  the  grantor  lying  southwesterly  of  said  lasts 
described  parcel  of  land,  and  leading  out  of  Concord  river,  and 
by  means  of  head-raceways  to  enter  the  said  canal  at  any  point 
opposite  said  last-described  parcel  of  land,  and  to  conduct  the 
water  to  the  said  last-described  lot  of  land  to  be  used  thereon,  the 
same  to  be  done  in  such  a manner  as  in  no  wise  to  injure  or 
weaken  the  banks  of  said  canal,  or  interrupt  the  flow  of  water 
therein.  Also,  the  right  for  said  water  to  enter  said  canal  from 
the  said  Concord  river  to  the  extent  hereinafter  specified,  and  the 
right  forever  hereafter  to  have  said  canal  and  the  banks  thereof, 
and  the  permanent  dam  owned  by  the  grantor  across  Concord 
river,  continued  for  the  purpose  of  affording  a water-power,  and 
to  the  extent  and  with  the  exceptions  and  reservations  hereinafter 
contained  and  set  forth.  The  quantity  of  water  which  may  be 
drawn  from  the  canal  by  the  grantee,  his  heirs  and  assigns,  is 
strictly  limited  to  and  shall  not  exceed  fifteen  cubic  feet  per 
second,  for  eleven  and  one-quarter  hours  per  day  of  six  days  of 
the  week.  And  if,  at  any  time,  the  quantity  of  water  in  the  canal 
shall  not  equal  two  hundred  and  eighty-eight  cubic  feet  per  second 
during  the  time  aforesaid,  then  the  grantee,  his  heirs  and  assigns, 
shall,  during  such  time,  be  restricted  to  five  ninety-sixths  of  the 
quantity  of  the  water  in  the  canal.  Meaning  that  the  quantity  of 
water  which  may  be  drawn  from  the  canal  by  the  grantee,  his 
heirs  or  assigns,  shall  never,  at  any  time,  exceed  fifteen  cubic  feet 
per  second  for  the  above-specified  time,  however  great  may  be  the 
supply  of  water  from  the  said  canal,  and  that  the  quantity  of 
water  which  may  be  taken  by  the  grantee,  his  heirs  or  assigns, 
shall  be  restricted  to  such  an  amount  less  than  fifteen  cubic  feet 
per  second  during  the  above-specified  time  as  shall  be  equal  to  five 
ninetyTsixths  of  the  supply  afforded  from  the  canal,  whenever  the 
water  in  the  canal  shall  be  less  than  two  hundred  and  eighty-eight 
cubic  feet  per  second  for  eleven  and  one-quarter  hours  per  day  for 
six  days  of  the  week. 

Also,  the  right  to  pass  with  cars  over  the  railroad  at  Whipple’s 
station  to  said  last-described  parcel  of  land,  and  over  the  premises 
of  the  grantor  as  the  railroad  is  now  constructed,  or  as  it  may  be 
constructed  hereafter  by  the  grantee,  or  by  the  proprietors  of  the 
several  rights  or  grants  now  made,  or  which  may  be  made  by  the 
grantor,  his  heirs  or  assigns.  But  this  right  is  to  be  used  in  com- 
mon with  other  grants  made  by  Oliver  M.  Whipple,  or  which 
may  be  made  by  the  grantor,  his  heirs  or  assigns,  and  in  com- 
mon with  the  grantor,  his  heirs  andassigns.  Nor  shall  he  or  they 
be  under  any  obligation  to  maintain  said  railroad  or  extend  the 
same ; meaning,  only  to  grant  the  right  to  use  in  common  with 
others  the  present  railroad  track,  so  long  as  the  same  may  con- 
tinue, with  a right  of  rebuilding  a track  and  using  and  maintaining 
the  same  as  aforesaid,  and  subject  to  the  rights  of  the  Boston  & 
Lowell,  Lowell  & Lawrence  and  Salem  & Lowell  Railroad  Com- 
panies, and  subject  to  such  changes  in  the  direction  or  situation 
of  the  track  as  the  grantor,  his  heirs  or  assigns,  may  reasonably 
demand.  And  in  case  said  railroad  shall  be  discontinued,  the 


Deed. 


575 


grantee,  his  heirs  and  assigns,  shall  have,  so  long  as  the  railroad 
shall  be  discontinued,  a right  of  way  to  pass  and  repass  with  teams 
from  Lawrence  street  to  the  last-described  lot  over  the  space  on 
the  northeasterly  side  of  said  canal,  between  said  canal  and  con- 
veyed lots,  which  space  is  now  owned  by  said  grantor,  but  so  as 
not  to  obstruct  said  space  to  the  injury  of  said  grantor,  his  heirs 
and  assigns.  Also  the  right  to  lay  and  maintain  a railroad  track 
on  the  bank  of  the  canal  between  the  last  described  lot  and  the 
canal,  and  to  use  the  same  in  common  with  the  grantor,  his  heirs 
and  assigns.  Also,  the  right  to  pass  and  repass  with  teams  or 
otherwise,  between  Lawrence  street  and  said  last-described  lot 
over  Grove  street  and  the  bridge,  and  over  the  small  strip  of  land 
on  the  northeasterly  bank  of  the  canal,  but  so  as  not  to  interrupt 
or  interfere  with  the  use  of  said  strip  for  railroad  or  other 
purposes. 

In  case  said  Faulkner,  his  heirs  or  assigns,  shall,  within  three 
years  from  the  date  hereof,  pay  to  said  Patch,  or  his  heirs  or 
assigns,  the  sum  of  three  thousand  dollars,  then  from  and  after 
the  time  of  such  payment,  the  quantity  of  water  which  may  be 
drawn  from  the  canal  by  the  grantee,  his  heirs  and  assigns,  may  be 
increased,  but  so  as  in  no  event  to  exceed  ten  cubic  feet  per 
second,  for  eleven  and  one-quarter  hours  per  day  of  six  days  of 
the  week,  in  addition  to  the  fifteen  cubic  feet  aforesaid. 

And  said  Patch,  for  himself,  his  heirs  and  assigns,  reserves  the 
right  forever,  to  discharge  and  deliver  water  into  the  river  outside 
of  the  lot  herein  last  described,  and  over  a portion  of  said  lot 
from  a raceway  twelve  feet  wide,  already  existing  on  his  adjoining 
land  as  it  now  exists,  and  as  it  may  reasonably  be  altered,  and  as 
new  raceways  from  the  canal  into  the  same  may  hereafter  be  made, 
and  said  grantee,  his  heirs  and  assigns,  hall  nsever  erect  or  make 
any  building  or  structure  or  obstruction  on  his  premises,  so  as  to 
interfere  with  or  interrupt  the  free  passage  of  water  from  said 
raceway  (as  now  existing,  and  as  it  may  reasonably  be  altered, 
and  as  new  raceways  into  the  same  may  be  made)  over  the  lot  last 
above-described,  to  the  river  outside  said  lot  last  above-described. 

The  said  grantee,  his  heirs  and  assigns,  shall  not,  by  reason  of 
abbutting  on  said  river,  or  owning  said  premises,  have  the  right  to 
have  the  water  from  above  in  Concord  river,  flow  in  said  river 
past  said  premises,  but  said  Patch,  his  heirs  and'  assigns,  retain 
forever  the  right  to  dam  said  river  above  said  premises,  and  to 
divert  the  water  thereof  into  and  along  his  said  canal  for  the 
privilege  herein  conveyed,  and  for  other  privileges  established  and 
to  be  established.  And  the  said  grantee, #his  heirs  and  assigns, 
shall  have  the  right  to  discharge  the  water  from  the  last-described 
lot  of  land  into  Concord  river,  without  obstruction,  but  so  as  not 
unreasonably  to  obstruct  the  flow  of  water  in  said  river  or  tail- 
race. 

And  the  grantor,  for  himself,  his  heirs  and  assigns,  covenants 
with  the  grantee,  his  heirs  and  assigns,  that  he  will,  within  seven 
months  from  this  date,  so  enlarge  the  said  canal,  that  the  same 
shall  be  of  sufficient  capacity  at  all  times,  when  the  wTater  in  the 
river  and  canal  is  as  high  as  the  top  of  the  said  permanent  dam  in 


576 


Case  of  L.  W.  Faulkner. 


Concord  river,  to  carry  and  discharge  not  less  than  two  hundred 
and  eighty-eight  cubic  feet  per  second,  of  eleven  and  one-quarter 
hours  per  day  of  six  days  of  the  week,  without  the  water  therein 
at  the  head  of  the  head  raceways  of  the  grantee  being  drawn  down 
more  than  six  inches  below  the  top  of  said  permanent  dam. 

And  the  said  Patch,  for  himself,  his  heirs  and  assigns,  further 
covenants  that  he  will  forever  hereafter  keep  and  maintain  in 
suitable  and  proper  condition  and  repair,  the  said  canal  enlarged 
to  the  capacity  aforesaid,  and  the  banks  and  parts  and  appurte- 
nances thereof ; also  said  permanent  dam  and  the  eight-inch  flash- 
boards  as  they  are  usually  kept  thereon,  subject  to  such  reasonable 
and  temporary  interruptions  and  hindrances  as  may  be  necessary 
in  such  maintenance  and  repairs.  And  this  deed  is  on  the 
express  condition,  that  for  affording  reasonable  facilities  for  meas- 
uring water  taken  from  the  canal  bjr  the  grantee,  his  heirs  or 
assigns,  the  head  raceway  of  the  grantee  shall  consist  in  whole  or 
in  part  of  a flume  or  flumes  which  shall  not  be  less  than  fifteen 
feet  in  length  with  the  sides  and  bottom  smooth.  And  the 
grantor,  his  heirs  and  assigns,  may,  at  any  and  all  times,  hereafter 
enter  upon  the  said  premises  of  the  grantee,  and  make  such  meas- 
urements as  may  be  requisite  and  proper  for  determining  the 
quantity  of  water  taken,  and  also  for  the  purpose  from  time  to 
time  of  repairing  the  wall  and  bank  of  the  canal. 

And  I,  Oliver  M.  Whipple,  of  said  Lowell,  at  the  request  of 
said  Patch,  and  by  reason  of  the  consideration  aforesaid,  do 
hereby  release  and  foreVer  discharge  the  above-described  promises 
but  none  other,  from  a certain  mortgage  given  me  by  said  Patch, 
dated  March  20th,  1863,  and  which  covers  a piece  of  land  which 
includes  the  above-described  premises  ; and  I do  hereby  relinquish 
and  convey  unto  said  grantee,  all  the  right,  title  and  interest 
which  I have,  by  virtue  of  said  mortgage,  in  and  to  the  above- 
described  premises,  but  none  other,  so  that  the  said  grantee,  his 
heirs  and  assigns,  may  forever  hold  and  enjoy  the  above-descibred 
premises,  free  and  unincumbered  by  said  mortgage,  and  for  this 
purpose,  and  for  this  purpose  only,  I hereby  join  in  this  deed,  my 
object  and  purpose  being  to  release  from  said  mortgage  the  above- 
described  premises  without  prejudice  to  my  rights  under  said 
mortgage  to  the  remaining  land. 

To  have  and'to  hold  the  above-released  premises,  with  all  the 
privileges  and  appurtenances  to  the  same  belonging  to  the  said 
Luther  W.  Faulkner,  his  heirs  and  assigns,  to  his  and  their  use 
and  behoof  forever.  And  I,  the  said  Ephraim  B.  Patch,  for 
myself  and  my  heirs„executors  and  administrators,  do  covenant 
with  the  said  Faulkner,  his  heirs  and  assigns,  that  the  premises 
are  free  from  all  incumbrances  made  or  suffered  by  me,  and  that  I 
will,  and  my  heirs,  executors  and  administrators  shall,  warrant  and 
defend  the  same  to  the  said  Faulkner,  his  heirs  and  assigns, 
forever  against  the  lawful  claims  and  demands  of  all  persons 
claiming  by,  through  or  under  me,  but  against  none  other. 

In  witness  whereof,  we,  the  said  Ephraim  B.  Batch  and  Oliver 
M.  Whipple,  have  hereunto  set  our  hands  and  seals  this  fifth  day 


Argument  of  Richardson. 


577 


of  October,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-three. 

E.  B.  PATCH, 

OLIVER  M.  WHIPPLE. 

Signed,  sealed  and  delivered  in  presence  of 

GEOROE  F.  RICHARDSON. 

Middlesex,  ss.  October  5,  1863. 

Then  personally  appeared  the  above-named  Ephraim  B.  Patch 
and  Oliver  M.  Whipple,  and  severally  acknowledged  the  foregoing 
instrument  to  be  their  free  act  and  deed. 

Before  me, 

GEORGE  F.  RICHARDSON, 

Justice  of  the  Peace. 

From  that  deed  I will  read  the  description.  These  two 
parcels  of  land,  one  a small  parcel  and  one  a large  one,  at 
different  times  in  the  different  provisions,  they  were  both 
finally  embraced  together.  This  gives  a description  of  a 
quantity  of  land  on  the  southeasterly  side  of  Grove  street, 
so  called,  containing  about  eight  thousand  seven  hundred 
and  forty-one  square  feet,  thus  bounded  and  described,  begin- 
ning at  the  "southeasterly  side  of  said  Grove  street,  at  a stone 
bound  which  is  about  twenty  feet  distant  southwesterly  from 
the  canal  as  it  now  exists,  thence  running  along  said  Patch’s 
other  land  S.  29°  E.”  etc.,  "to  the  point  of  beginning.” 

Mr.  Butler.  Do  you  put  in  the  consideration  ? 

Mr.  Richardson.  This  was  a consideration  of  $5,200. 
" Also  a certain  other  piece  or  parcel  of  land  situate  in  said 
Lowell,  containing  about  eighteen  thousand  two  hundred 
and  eighty-one  square  feet,  more  or  less,  and  thus  bounded 
and  described : beginning  at  a stone  bound  at  the  westerly 
corner  of  the  premises  at  the  southerly  corner  of  land  sold 
by  Oliver  M.  Whipple  to  Alfred  II.  Chase  by  deed  dated 
February  20th,  1863,  thence  running  northeasterly  by  said 
Chase’s  land  about  one  hundred  and  twenty-nine  feet  to  a 
drill-hole  in  the  stone  at  Concord  river,  etc.,”  calling  that 
just  the  same,  as  I believe  in  the  others. 

Mr.  Butler.  Exactly? 

Mr.  Richardson.  Yes.  Then  the  next  deed  I put  in,  in 
the  same  proportions,  and  everything,  when  the  water  is 
below. 

Mr.  Butler.  Yes,  sir,  everything. 

Mr.  Richardson.  The  next  deed  is  dated  — 

Mr.  Butler.  State  how  many  feet  of  water  that  gives 
for  $5,200. 

Mr.  Richardson.  Not  exceeding  fifteen  cubic  teet  per 


578 


Case  of  L.  W.  Falulkner. 


second,  11^  hours  per  day.  The  next  deed  I put  in  is  one 
from  Patch,  also  signed  by  Oliver  M.  Whipple,  dated  the 
11th  of  May,  1864  : — 

Know  all  men  by  these  Presents , That,  whereas,  in  a certain  deed 
made  by  Ephraim  B.  Patch,  of  Lowell,  in  the  County  of  Middle- 
sex and  Commonwealth  of  Massachusetts,  to  Luther  W.  Faulkner, 
of  Billerica,  in  said  County,  dated  the  fifth  day  of  October,  A.  D. 
1863,  and  recorded  in  the  north  districts  of  Middlesex  Registry  of 
Deeds,  Book  33,  Page  490,  there  is  contained  the  following  pro- 
vision : “ In  case  said  Faulkner,  his  heir  and  assigns,  shall  within 

three  3'ears  from  the  date  hereof  pay  to  said  Patch,  or  his  heirs  or 
assigns,  the  sum  of  three  thousand  dollars,  then  from  and  after  the 
time  of  such  payment  the  quantity  of  water  which  may  be  drawn 
from  the  canal  by  the  grantee,  his  heirs  and  assigns,  may  be  in- 
creased, but  so  as  in  no  event  to  exceed  ten  cubic  feet  per  second 
for  eleven  and  one-quarter  hours  per  day  of  six  days  of  the  week, 
in  addition  to  the  fifteen  cubic  feet  aforesaid.’’  And  whereas  said 
Faulkner  has  this  day  paid  me  the  said  sum  of  three  thousand 
dollars  therein  mentioned,  now,  therefore,  in  consideration  thereof 
to  me  paid  by  said  Luther  W.  Faulkner,  the  receipt  whereof  is 
hereby  acknowledged,  I,  the  said  Ephraim  B.  Patch,  do  hereby 
bargain,  sell,  and  convey  unto  the  said  Faulkner,  his  heirs  and 
assigns,  the  right  to  draw  from  said  canal  the  increased  quantity 
of  water  in  said  clause  provided  for,  but  so  as  in  no  event  to  ex- 
ceed ten  cubic  feet  per  second  for  eleven  and  one-quarter  hours  per 
day  of  six  days  of  the  week,  in  addition  to  the  fifteen  cubic  feet 
specified  in  said  deed,  the  same  to  be  used  on  the  premises  con- 
veyed by  said  Patch  to  said  Faulkner  by  said  deed,  and  in  the 
manner  and  subject  to  the  provisions  contained  in  said  deed. 

And  I,  Oliver  M.  Whipple,  of  said  Lowell,  at  the  request  of  said 
Patch,  and  by  reason  of  the  consideration  of  twenty-five  hundred 
and  forty-five  dollars  to  me  paid,  do  hereby  release  and  forever 
discharge  the  above-described  premises,  but  none  other,  from  a 
certain  mortgage  given  me  by  said  Patch,  dated  the  twentieth  day 
of  March,  A.  D.  1863,  and  which  covers  a piece  of  land  and  water 
power  which  include  the  above-described  premises,  and  I do  hereby 
convey,  relinquish  and  release  unto  the  said  grantee,  his  heirs  and 
assigns,  all  the  right,  title,  and  interest  which  I have  by  virtue  of 
said  mortgage  in  and  to  the  above-described  premises,  but  none 
other ; so  that  the  said  grantee,  his  heirs  and  assigns,  may  forever 
hold  and  enjoy  the  above-described  premises  free  and  unincumbered 
by  said  mortgage ; and  for  this  purpose  and  for  this  purpose  only 
I hereby  join  in  this  deed,  my  object  and  purpose  being  to  release 
from  said  mortgage  the  above-described  premises  without  prejudice 
to  my  rights  under  said  mortgage  to  the  remaining  land  and  water 
power  embraced  therein. 

To  have  and  to  hold  the  above-conve}red  premises  with  all  the 
privileges  and  appurtenances  to  the  same  belonging  to  the  said 
Faulkner,  his  heirs  and  assigns,  to  his  and  their  use  and  behoof 
forever. 

And  I,  the  said  Ephraim  B.  Patch,  for  myself  and  my  heirs,  ex- 


Argument  of  Richardson. 


579 


ecutors,  and  administrators,  do  covenant  with  the  said  Faulkner, 
his  heirs  and  assigns,  that  the  premises  are  free  from  all  incum- 
brances made  or  suffered  by  me,  and  that  I will,  and  my  heirs, 
executors,  and  administrators  shall,  warrant  and  defend  the  same 
to  the  said  Falkner,  his  heirs  and  assigns,  forever  against  the  law- 
ful claims  and  demands  of  all  persons  claiming  by,  through,  or 
under  me,  but  against  none  other. 

In  witness  whereof  we,  the  said  Ephraim  B.  Patch  and  Oliver 
M.  Whipple,  have  hereunto  set  our  hands  and  seals  this  eleventh 
day  of  May  in  the  year  eighteen  hundred  and  sixty-four. 

E.  B.  PATCH, 

OLIVER  M.  WHIPPLE. 

Signed,  sealed,  and  delivered,  in  presence  of 

DANIEL  S.  RICHARDSON. 

Middlesex,  ss.  May  12,  1864. 

Then  personally  appeared  E.  B.  Patch  and  Oliver  M.  Whipple 
and  acknowledged  the  above  instrument  by  them  subscribed  to  be 
their  free  act  and  deed.  Before  me, 

DANIEL  S.  RICHARDSON, 
Justice  of  the  Peace. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Lowell,  May  12,  1864. 

Recorded  in  the  Registry  of  Deeds  for  the  Northern  District  of 
Middlesex,  in  Book  38,  Page  88. 

A.  B.  WRIGHT, 

Register. 

Mr.  Richardson.  This  deed  was  a deed  agreeing  for  a 
future  payment.  " In  case  the  said  Faulkner,  his  heirs  and 
assigns,  shall,  within  three  years  from  the  date  thereof,  pay  to 
said  Patch,  or  his  heirs  or  assigns,  the  sum  of  three  thousand 
dollars,  then  from  and  after  the  time  of  such  payment  the 
quantity  ot  water  which  may  be  drawn  from  the  canal  by  the 
grantee,  his  heirs  and  assigns,  maybe  increased,  but  so  as  in 
no  event  to  exceed  ten  cubic  feet  per  second  for  eleven  and 
one  quarter  hours  per  day,  of  six  days  of  the  week,  in  addi- 
tion to  the  fifteen  cubic  feet  aforesaid.”  There  are  two  lots 
of  land  described  here,  so  it  would  be  2,500  cubic  feet.  The 
money  was  paid  and  the  right  vested.  After  Mr.  Faulkner 
purchased  this  land  he  erected  a mill  and  machinery,  a race- 
way, placed  in  a wheel  for  the  enjoyment  of  this  water-power, 
and  has  been  in  the  use  and  occupation  of  it  alone  with  his 
partners  from  the  time  that  the  mill  was  completed  down  to 
this  time.  I do  not  propose  to  add  anything  in  the  opening 
as  to  the  evidence,  — as  to  the  matter  of  calculating  the 


580 


Case  of  S.  N.  Wood. 


measure  of  our  damages.  I take  the  evidence  that  is  in  al- 
ready as  to  that,  with  the  additional  evidence  that  we  shall 
have  from  Mr.  Frizell,  whom  we  will  examine,  which,  while 
it  does  not  go  over  a considerable  period  of  time,  I think  will 
furnish  some  aid  to  you  during  that  period  of  time  of  the 
condition  of  the  river,  from  which  you  can  calculate  the 
quantity  of  water  during  other  portions  of  the  year.  It  is 
unnecessary  for  me,  perhaps,  to  state  at  this  time  how  much 
water  I think  the  evidence  will  show  has  been  taken,  as  I do 
not  wish  to  occupy  your  time  on  that  head.  I do  not  pro- 
pose to  put  in  any  other  evidence  in  this  case  than  the  con- 
dition of  the  property  and  the  evidence  of  the  condition  of 
the  water  for  such  times  of  the  year,  at  sundry  times,  as  we 
shall  be  able  to  get  it  from  the  witnesses  and  from  the 
measurements  during  the  short  period  of  Mr.  Frizell’s  con- 
nection. 

The  next  case  is  the  case  of  Samuel  N.  Wood,  who  gives 
the  description  of  land  I need  not  read.  It  is  the  lot  you 
saw  adjoining  the  bleachery.  The  consideration  was  $4,000 
in  this  deed. 

Commissioner  Russell.  Who  from  ? 

Mr.  Richardson.  This  is  a deed  from  Oliver  M.  Whipple 
himself.  It  bears  date  the  21st  day  of  August,  1862. 

Know  all  men  by  these  Presents , That  I,  Oliver  M.  Whipple,  of 
Lowell,  County  of  Middlesex  and  Commonwealth  of  Massachu- 
setts, in  consideration  of  four  thousand  dollars,  to  me  paid  by 
Samuel  N.  Wood,  of  Lowell,  aforesaid,  the  receipt  whereof  I do 
hereby  acknowledge,  do  give,  grant,  bargain,  sell  and  convey  unto 
said  Wood,  a certain  piece  or  parcel  of  land  situated  in  said  Low- 
ell, near  land  owned  by  Lowell  Bleachery  Company,  described  as 
follows,  viz.  : commencing  at  the  southeasterly  corner  of  the  prem- 
ises at  a stake  at  land  of  the  grantor;  thence  at  an  angle  of  101° 
18'  35"  westerly,  by  land  of  the  grantor,  one  hundred  eighty-one 
and  one-tenth  feet  to  River  Meadow  brook  ; thence  northeasterly 
along  said  brook  fifty-one  and  thirty-one  one  hundredths  feet  to  a 
stake  at  land  of  grantor  ; thence  at  an  angle  of  102°  59'  09 7 easterly, 
along  land  of  the  grantor,  one  hundred  seventj'-nine  and  fifty-seven 
one  hundredths  feet,  to  a stake  ; thence  at  an  angle  of  78°  41'  25" 
south,  thirty-three  and  three-fourths  degrees  west,  fifty  feet  and 
ninety-nine  one  hundredths  to  the  point  begun  at ; also,  the  following 
described  parcel,  which  is  forever  to  be  kept  open  as  a street  or  way 
for  the  use  of  said  grantee,  his  heirs  and  assigns,  and  the  abuttors 
thereon,  commencing  at  the  southeasterly  corner  of  above-described 
premises  at  a stake;  thence  at  an  angle  of  102°  59'  097  westerly, 
it  being  a continuation  of  the  southerly  line  of  the  above-described 
premises  (and  over  said  brook)  ore  hundred  sixty-six  and  fifty 
one  hundredths  feet  to  the  easterly  line  of  a new  street  designated 
on  plan  of  land  of  the  grantor,  as  Orange  street,  which  is  forever 


Deed. 


581 


to  be  kept  open  thirty  feet  in  width  and  extend  to  its  intersection 
with  Crosby  street ; thence  by  the  easterly  side  of  Orange  street, 
thirty-one  and  twenty  one-hundredths  feet  to  a stake  of  land  of 
grantor ; thence  at  an  angle  with  said  Orange  street  105°  40;  by 
land  of  the  grantor,  one  hundred  and  sixty-five  feet  to  a stake  at 
the  easterly  side  of  said  brook,  at  a point  twenty  feet  southerly  by 
the  northwesterly  corner  of  the  first-described  premises  (said 
street  or  way  to  be  so  constructed  as  not  to  diminish  the  capacity 
of  said  brook,  or  to  obstruct  the  flow  of  water  therein),  also,  the 
right,  privilege  and  easement  to  pass  with  cars  over  the  railroad 
leading  from  the  Boston  and  Lowell  railroad,  Lowell  and  Lawrence 
and  Salem  & Lowell  Railroads  at  Whipple  station,  over  land  of 
the  grantor  to  the  first-described  lot.  As  said  railroad  is  now  con- 
structed, or  as  it  may  be  constructed  by  the  proprietors  of  the 
several  grants  now  made  or  which  may  be  made  by  the  grantor 
and  his  heirs  and  assigns,  and  the  grantee  may  construct  a side 
track  over  land  of  the  grantor  and  within  fifteen  feet  of  the  easterly 
line  of  the  first-granted  premises  and  in  a line  parallel  therewith, 
which  may  be  extended  in  the  same  direction  to  a point  seventy- 
five  feet  northerly  of  the  northeasterly  corner  of  the  first-granted 
premises ; but  the  use  of  said  railroad  and  side  track  is  to  be  in 
common  with  grantor,  and  his  heirs  and  assigns,  and  in  common 
with  other  grants  now  made  or  which  may  be  made  by  the  grantor 
and  his  heirs  and  assigns,  meaning  only  to  grant  the  right  to  use 
in  common  the  present  railroad  track,  so  long  as  it  may  be  contin- 
ued over  premises  of  grantor,  with  a right  to  rebuild  the  same,  so 
far  as  the  grantor  may  have  a right  so  to  do.  But  the  grantor,  or 
his  heirs  and  assigns,  shall  be  under  no  obligation  to  maintain  said 
railroad  or  said  track,  and  this  grant  is  made  subject  to  the  right 
of  the  Boston  and  Lowell,  Lowell  and  Lawrence,  and  Salem  & 
Lowell  Railroad  Companies,  and  all  others  having  rights  therein, 
and  subject  to  such  changes  in  direction  of  said  track  as  the  grant- 
or, and  his  heirs  and  assigns,  and  others  interested  may  reasonably 
demand,  and  in  case  said  railroad  shall  be  discontinued,  the  grantee 
and  his  heirs  and  assigns,  shall  have  a right  to  pass  and  re-pass 
with  teams  over  land  of  the  grantor,  from  Lawrence  street  to  the 
premises  conveyed,  but  not  so  as  to  obstruct  said  space  to  the  in- 
jury of  the  grantor,  and  his  heirs  and  assigns,  or  others  having 
right  thereon  ; also,  the  right,  privilege  and  easement  forever  to 
take  water  from  the  canal  of  the  grantor  to  the  extent  hereinafter 
specified  (which  canal  is  to  be  extended  by  the  grantor  within 
sixty  days),  in  front  of  the  whole  easterly  line  of  first-conveyed 
premises,  said  canal  leading  out  of  Concord  river,  and  by  means 
of  a head  raceway  the  grantee,  his  heirs  and  assigns,  may  enter 
said  canal  and  conduct  water  therefrom  to  the  above-granted  prem- 
ises, to  be  used  thereon,  the  same  to  be  done  in  such  a manner  as 
in  no  wise  to  weaken  said  canal,  or  the  banks  thereof,  or  intercept 
the  flow  of  water  in  said  canal,  also,  the  right  of  said  water  to  en- 
ter said  canal  from  Concord  river  to  the  extent  hereinafter  speci- 
fied ; also,  the  right  forever  hereafter  to  have  said  canal  and  the 
banks  thereof,  and  the  permanent  dam  of  the  grantor  across  Con- 
cord river  continued  for  the  purpose  of  affording  a water-power  to 


582 


Case  of  S.  N.  Wood. 


the  extent  and  with  the  exceptions  and  reservations  hereinafter  set 
forth.  The  quantity  of  water  which  may  be  drawn  from  said  canal 
by  the  grantee  and  his  heirs  and  assigns  is  strictly  limited  to,  and 
shall  not  exceed,  twelve  cubic  feet  per  second,  for  eleven  and  one- 
quarter  hours  per  day,  of  six  days  in  the  week  ; and  if  at  any  time 
the  quantity  of  water  in  the  canal  shall  not  be  equal  to  two  hundred 
and  eighty-eight  feet  per  second,  during  the  above  specified  time, 
then  the  grantee,  and  his  heirs  and  assigns,  shall  during  such  time 
be  restricted  to  one  twenty-fourth  part  of  the  quantity  of  water  in 
said  canal,  meaning  that  the  said  quantity  of  water  to  be  drawn 
by  the  grantee,  and  his  heirs  and  assigns,  shall  at  no  time  exceed 
twelve  cubic  feet  per  second,  for  above-specified  time,  however  great 
the  supply  of  water  may  be  in  the  canal,  and  shall  be  restricted  to 
such  an  amount  as  shall  be  equal  to  one  twenty-fourth  part  of  the 
supply  of  water  afforded  by  the  canal,  whenever  the  water  in  the 
canal  is  less  than  two  hundred  and  eighty-eight  cubic  feet  per 
second  for  above-specified  time,  and  the  grantor,  for  himself  and  his 
heirs  and  assigns,  covenants  with  the  grantee,  and  his  heirs  and 
assigns,  that  he  will,  within  six  months  from  date  hereof,  so  en- 
large said  canal,  that  the  same  shall  be  of  sufficient  capacity  so  as 
at  all  times,  when  the  water  in  the  river  and  canal  is  as  high  as  the 
top  of  the  permanent  dam  in  Concord  river,  to  carry  and  discharge 
not  less  than  two  hundred  and  eighty-eight  cubic  feet  of  water  per 
second,  for  eleven  and  one-quarter  hours  per  day,  of  six  days  in 
the  week,  without  the  water  at  the  head  of  the  head  race-way  of 
the  grantor  being  drawn  down  more  than  six  inches  below  the  top 
of  said  permanent  dam,  and  said  grantor,  for  himself  and  his  heirs 
and  assigns,  covenants  with  the  grantee,  and  his  heirs  and  assigns, 
to  maintain  and  keep  in  suitable  repair  the  said  canal  so 
enlarged  to  the  capacity  aforesaid,  and  the  banks  and  appur- 
tenances thereof;  also  the  said  permanent  dam  and  the  eight- 
inch  flash-boards,  so  far  as  the  grantor  has  a right  to  use 
them,  subject  to  such  reasonable  and  temporary  interruptions 
as  may  be  necessary  for  such  maintenance  and  repairs,  and  this 
deed  is  subject  to  the  condition  that  for  affording  reasonable 
facilities  for  measuring  the  water  taken  from  the  land  by  the 
grantee,  and  his  heirs  and  assigns,  the  head  raceway  of  the  grantees 
shall  consist  in  whole  or  in  part  of  a flume  or  flumes  which  shall 
not  be  less  than  fifteen  feet  in  length  with  the  sides  and  bottom 
smooth  ; and  the  grantor  and  his  heirs  and  assigns,  may  at  an}’  time 
and  at  all  times  hereafter  enter  upon  the  premises  and  make  such 
admeasurement  as  may  be  necessary  to  determine  the  quantity  of 
water  taken  by  the  grantee  and  his  heirs  and  assigns ; also  the 
right,  privilege,  and  easement  to  the  grantee  and  his  heirs  and  as- 
signs to  enter  a tail  raceway  of  the  grantor,  to  be  constructed  by 
the  grantor  on  his  premises  within  fifteen  feet  of  the  northerly  line 
of  the  conveyed  premises,  and  to  be  forever  used  by  said  grantee, 
his  heirs  and  assigns,  in  common  with  the  grantor  and  his  heirs  and 
assigns  for  conveying  water  into  River  Meadow  brook. 

To  have  and  to  hold  the  above-granted  premises  to  the  said 
Samuel  N.  Wood,  his  heirs  and  assigns,  to  his  and  their  use  and 
behoof  forever,  and  the  said  Oliver  M.  Whipple,  for  myself  and 


Argument  of  Eichardson. 


583 


my  heirs,  executors,  and  administrators,  do  covenant  with  the  said 
Wood,  his  heirs  and  assigns,  that  I am  lawfully  seized  in  fee  simple 
of  the  afore-granted  premises  ; that  they  are  free  from  all  incum- 
brances ; that  I have  good  right  to  sell  and  convey  the  same  to  the 
said  Wood,  his  heirs  and  assigns,  forever  as  aforesaid  ; and  that  I 
will,  and  my  heirs,  executors,  and  administrators  shall,  warrant 
and  defend  the  same  to  the  said  Wood,  his  heirs  and  assigns,  for- 
ever against  the  lawful  claims  and  demands  of  all  persons. 

In  witness  whereof,  I,  the  said  Oliver  M.  Whipple  and  Sarah 
K.  Whipple,  my  wife,  in  token  of  her  release  of  all  right,  dower, 
and  homestead  in  the  granted  premises,  have  hereunto  set  our 
names  and  seals  this  twenty-first  day  of  August,  in  the  year  of  our 
Lord  eighteen  hundred  and  sixty-two. 

OLIVER  M.  WHIPPLE.  [Seal.] 
SARAH  K.  WHIPPLE.  [Seal.] 

In  presence  of  E.  B.  PATCH. 

The  words  “ are,”  “ the,”  “is,”  “ corner,”  “ feet,”  “and,” 
“ others  interested,”  “shall  by  the  grantor,”  “ his  heirs,”  “ and 
assigns,”  “ be  not,”  “ all  right,”  inserted  before  signing. 

Middlesex,  ss.  Sept.  1,  1862. 

Then  personally  appeared  the  above-named  Oliver  M.  Whipple 
and  acknowledged  the  above  instrument  to  be  his  free  act  and  deed. 
Before  me.  E.  B.  PATCH, 

Justice  of  the  Peace. 

Recorded  September  2,  1862.  A.  B.  WRIGHT, 

Register. 

The  above  is  a true  copy  of  Deed,  Whipple  to  Wood,  dated 
August  21,  1862,  and  recorded  in  book  32,  page  15. 

Attest:  J.  P.  THOMPSON, 

Register. 

Lowell,  June  4,  1875. 

This  deed  will  present  a little  difference  in  the  original 
title  from  that  of  some  of  the  other  deeds  in  this  case ; I 
don’t  know  that  it  will  be  of  any  importance,  except  that  I 
shall  put  in  a fact  which  will  be  necessary  in  order  to  show 
that  the  grant  power  could  be  enjoyed.  In  the  other  deeds 
they  were  upon  the  canal,  or  the  canal  existed  so  far  down 
that  they  could  take  the  water  as  the  canal  then  stood.  In 
these  deeds,  the  grant  in  this  deed  and  also  in  the  next  one 
which  I shall  allude  to  — perhaps  I had  better  read  the  exact 
description  ; it  is  the  same  privilege  as  a railway  : " also  the 
right  privilege,  and  easement  forever  to  take  water  from  the 
canal  of  the  grantor  to  the  extent  hereinafter  specified, 
(which  canal  is  to  be  extended  by  the  grantor  within  sixty 


584 


Case  of  S.  N.  Wood. 


days) , in  front  of  the  whole  easterly  line  of  first-conveyed 
premises,  said  canal  leading  out  of  Concord  river  and  by 
means  of  a head  raceway.”  You  will  observe  while  in  the 
former  cases  the  canal  had  already  been  built  down  to  only 
where  this  land  was  located,  this  grants  the  right  to  take  the 
water  ; the  grant  shall  not  exceed  twelve  cubic  feet,  and  that 
right  was  to  take  it  from  that  canal  with  an  agreement  that 
the  canal  should  be  extended  from  where  it  then  ended,  past 
the  whole  site  of  this  land,  which  was  afterwards  done.  The 
purchase  and  consideration  was  paid  for  the  land  as  it  stood, 
with  no  improvements,  no  appliances  for  the  use  of  water, 
nor  was  there  on  Mr.  Faulkner’s  when  he  purchased.  After 
the  purchase  was  made  Mr.  Wood  went  to  work  and  con- 
structed a grist-mill,  and  mill  apparatus,  which  was  finished 
within  a year,  perhaps,  and  while  that  was  going  on  the 
canal  was  finished  from  where  it  ended  at  the  time  of  the 
grant,  and  finished  past  this  land  of  Mr.  Wood  and  extended 
down  to  the  northerly  line  of  the  bleachery  lot,  which  I shall 
come  to  next,  where  they  could  use  it.  We  shall  show  that 
Mr.  Wood,  after  constructing  his  mill  and  putting  in  his 
wheel,  has  occupied  it  from  that  time  down  to  this.  So  far 
as  you  saw  in  your  view  the  fact  that,  while  the  other  mills 
on  this  stream  were  all  running,  we  shall  show  no  water 
whatever  going  down  the  canal  on  the  Wamesit  Power  Com- 
pany’s last  stream,  there  will  be  some  evidence  to  explain  it ; 
although,  probably,  you  will  not  find  it  necessary  to  find  any 
certain  explanation  why  it  is  that  no  water  flows  there  when 
the  other  mills  own  a divided  interest  in  the  water  and  have  a 
right  to  run.  It  grows  out  of,  I suppose,  as  my  brother 
Butler  suggested,  either  a difference  of  opinion  in  the  rights 
of  the  owners  above  to  use  the  water,  more  probably,  out  of 
the  difficulty  which  exists  and  always  exists  when  different 
parties  have  the  right  to  take  a defined  share  out  of  a whole 
quantity  of  water  — the  difficulty  of  measuring  it  and  the 
difficulty  of  each  getting  their  rights  in  the  right  of  water. 

It  was  said  that  the  water  did  not  come,  could  not  come 
to  Mr.  Wood  and  the  bleachery,  and  therefore  the  city  ought 
not  to  pay  them  any  damages  if  they  have  taken  the  water 
which  otherwise,  if  they  had  not  taken  it,  could  not  have 
reached  Mr.  Woods  and  the  bleachery  there.  If  it  was  an 
impossibility  that  any  of  that  water  could  reach  the  land  of 
Mr.  Wood  or  the  bleachery,  or,  if  it  was  utterly  useless,  I 
do  not  know  but  such  remarks  might  have  some  cogni- 
zant direction.  But  we  shall  show  we  had  a large  portion, 
differing,  perhaps,  according  as  you  take  the  proof  that 
shows  it  of  the  288  cubic  feet,  which  was  the  original  divi- 
sion of  power  that  it  was  supposed  the  Concord  river  would 


Argument  of  Richardson. 


585 


furnish  through  this  canal ; we  will  show  that  that,  or  some 
portion  of  it,  greater  or  less,  actually  exists  in  the  river  and 
goes  into  the  canal  at  its  opening.  And  if  we  show  in  ad- 
dition to  that,  that  we  have  a definite,  undivided  portion  of 
that  whole  amount,  the  fact  that  others  use  it  and  deprive  us 
of  it  as  it  is  used,  I think  we  shall  ask  you  to  consider  there 
is  no  evidence  ; therefore,  the  city  has  a right  to  take  it  with- 
out any  compensation.  That  is,  I shall  claim  that  the  water 
which  was  granted  to  us  by  these  deeds,  and  this  canal  to 
come  out  of  the  river,  gives  us  the  right  to  take  that  water 
going  down  the  Concord  into  this  canal,  into  our  premises. 
And  if  we  show  that,  at  the  entrance  of  the  canal,  we  had  a 
certain  number  of  cubic  feet  of  water  that  was  there  meas- 
ured in  a certain  power,  then  we  have  the  right  to  the  value 
of  that  water  from  the  city,  and,  if  they  stop  it  from  coming 
to  that  place,  it  is  no  answer  that,  through  the  fault  of 
others,  we  do  not  have  the  benefit  of  that  water  before  it 
reaches  our  place.  That  peculiarity  will  exist  the  same  in 
the  cases  of  the  Bleachery  and  in  the  case  of  Mr.  Wood,  and 
after  the  division  of  this  water  among  the  earliest  days,  it 
was  found  that  from  the  quantity  of  water  taken  from  the 
upper  mills,  so  that  this  amount  that  existed  in  the  canal, 
entered  and  existed  in  the  canal,  was  so  much  diminished 
that  during  the  eleven  hours  of  the  day  when  the  other  mills 
could  run,  Mr.  Wood  had  no  power  a good  deal  of  the  time  ; 
whereas,  the  deed  provided  that  when  the  power  stood  at 
288  cubic  feet,  he  should  have  so  many  feet  of  that ; 
so  long  as  there  was  any  water,  however  small,  in  the  canal, 
he  should  have  the  same  proportion  of  that  the  other  mill- 
owners  did.  And  this,  perhaps,  arose  from  great  difficulty 
in  using  the  water  during  the  eleven  hours  of  the  day ; in 
dividing  it,  or  whatever  it  arose  from  ; the  owners  of  what 
is  now  the  Wamesit  Power  Company  requested  Mr.  Wood  to 
abandon  the  trying  to  use  his  power  in  the  daytime  for  a 
long  period  of  time,  but  use  it  nights,  and  paid  him  some 
money  for  the  extra  trouble,  and  he  has  been  obliged,  from 
time  to  time,  to  get  his  power  when  others  were  not  using  it. 
But  that  is  a matter  that  has  been  for  the  convenience  of  the 
parties ; the  question  that  you  are  to  try  here  is,  or  the 
matter  that  you  are  to  settle,  is  upon  the  rights  granted  to 
us  by  the  deed. 

Mr.  Butler.  Your  Honor  will  see  that  this  is  the  exact 
converse  of  the  proposition  argued  yesterday,  that  where  the 
upper  proprietors  furnished  water,  it  should  aid. 

Commissioner  Russell.  Not  quite. 

Mr.  Richardson.  I think  not.  The  answers  are  the 
same  in  each  case. 


586 


Lowell  Bleachery. 


Commissioner  Russell  (addressing  the  official  stenogra- 
pher). Make  the  memorandum,  if  you  please,  in  the  case 
of  Luther  W.  Faulkner  and  Samuel  N.  Wood,  and  I suppose 
the  same  with  the  Lowell  Bleachery,  to  which  you  are  coming 
next. 

Mr.  Richardson.  The  same  precisely. 

Commissioner  Russell  (addressing  the  official  stenog- 
rapher). The  answers  are  the  same  as  in  the  Wilder  case, 
and  therefore  need  not  be  printed. 

Mr.  Richardson.  The  next  case  is  that  of  the  Lowell 
Bleachery. 


COMMONWEALTH  OF  MASSACHUSETTS. 
Middlesex,  ss. 

To  the  Sheriffs  of  our  several  Counties  or  their  Deputies. 

Greeting  : 

We  command  you  to  summon  the  City  of  Boston,  a municipal 
corporation  established  under  the  laws  of  this  Commonwealth,  in 
the  County  of  Suffolk,  to  appear  before  the  justices  of  our  Superior 
Court,  to  be  holden  at  Lowell,  within  and  for  our  County  of 
Middlesex,  on  the  first  Monday  of  September  next,  and  answer  to 
the  petition  of  the  Lowell  Bleachery,  a body  corporate  duly  estab- 
lished by  law  at  Lowell  aforesaid,  filed  in  the  office  of  the  Clerk 
of  the  Courts  for  said  County  of  Middlesex  on  the  day  of  the  date 
hereof,  a true  and  attested  copy  of  which  petition  is  hereto 
annexed.  And  have  you  there  this  writ  with  your  doings  thereon. 

Witness,  Lincoln  F.  Brigham,  Esquire,  at  Cambridge,  this 
tenth  day  of  June,  one  thousand  eight  hundred  and  seventy-five. 

THEO.  C.  HURD,  Cleric. 

To  the  Honorable  the  Justice  of  the  Superior  Court , now  holden  at 
Cambridge , within  and  for  the  county  of  Middlesex , and  Com- 
monwealth of  Massachusetts. 

Your  petitioners,  the  Lowell  Bleacher}^  a body  corporate,  duly 
established  by  law  at  Lowell,  in  said  county,  respectfully  represent 
that  they  are  now  and  have  been  for  more  than  three  years  now 
last  past,  the  owners  in  fee-simple  and  possessed  of  certain  pieces 
or  parcels  of  land  situate  in  £aid  Lowell,  which  are  bounded  and 
described  as  follows,  viz. : beginning  at  the  southwesterly  corner 
of  the  premises,  at  a point  on  the  northerly  side  of  Moore  street, 
at  a post  and  at  other  land  of  said  Lowell  Bleachery  ; thence 
easterly  along  Moore  street,  one  hundred  and  six  and  T$-g-  feet  to 
another  street  laid  out  by  Oliver  M.  Whipple,  thirty  feet  in  width ; 
thence  along  the  westerly  line  of  said  last-named  street  at  an  angle 
with  Moore  street  of  89°,  and  running  north  5°  and  50'  west, 
eleven  hundred  and  seven  and  -fo  feet  to  a stake ; thence  at  an 


Petition. 


587 


angle  of  106°  21',  and  running  north  86°  west  along  land  formerly 
of  Oliver  M.  Whipple,  to  River-meadow  brook,  so  called ; thence 
crossing  said  River-meadow  brook  and  continuing  in  the  same 
direction  along  the  southerly  side  of  another  street  laid  out  by  said 
Whipple,  thirty  feet  in  width,  to  a stone  bound  at  the  corner  of  a 
fence  at  other  land  of  said  Lowell  Bleachery,  at  Babcock  street ; 
thence  easterly  along  other  land  of  said  Lowell  Bleachery  to  a 
stone  bound  ; thence  south  1°  east  along  other  land  of  said  Lowell 
Bleachery,  eleven  hundred  and  eight  and  T8^  feet  to  the  point  of 
beginning  on  Moore  street. 

Your  petitioners  further  represent  that  they  are  and  have 
been  for  more  than  three  years  now  last  past  the  owners  and 
have  possessed  and  now  possess  the  right,  privilege  and  easement 
by  means  of  a canal  leading  from  Concord  river  along  the  north- 
erly line  of  the  aforesaid  premises  to  take  water  from  said  river, 
and  by  means  of  a head  raceway  to  conduct  the  water  therefrom 
on  to  and  through  premises  of  your  petitioner  ; also  the  right  for 
the  waters  of  said  river  to  enter  and  flow  through  said  canal  to  the 
extent  hereinafter  specified,  and  the  right  forever  to  have  said 
canal  from  Concord  river  and  the  banks  thereof  and  the  permanent 
dam  and  flash-boards  formed}7  owned  by  Oliver  M.  Whipple, 
across  Concord  river  in  said  Lowell,  and  which  dam  has  there 
existed  more  than  twenty  years,  still  continued  for  the  purpose  of 
affording  water  for  any  and  all  purposes  of  a water-power,  and  to 
the  extent  and  with  the  exceptions  and  reservations  hereinafter 
set  forth.  The  quantity  of  water  which  your  petitioner  for  more 
than  three  years  now  last  past  has  had  and  now  has  the  right  to 
draw  from  said  river  by  means  of  said  canal,  was  and  is  limited 
to  thirty-six  cubic  feet  per  second  for  eleven  and  one-quarter  hours 
per  day  of  six  days  of  the  week,  subject,  however,  to  this  limita- 
tion, that  if  at  any  time  the  quantity  of  water  in  said  canal  shall 
not  equal  two  hundred  and  eighty-eight  cubic  feet  per  second  dur- 
ing the  time  aforesaid,  then  your  petitioners  during  such  time  were 
restricted  to  one-eighth  of  the  quantity  of  water  in  said  canal. 

Your  petitioners  further  represent  that  they  now  are  and  have 
been  for  more  than  three  years  now  last  past  the  owners  in  fee- 
simple  of  other  lands  adjoining  the  above-described  premises  on 
which  are  and  were  situate  various  mills,  factories,  bleaching  and 
dye  works  and  apparatus  of  great  value,  and  the  waters  of  said 
Concord  river  obtained  by  means  of  said  canal  and  raceway  were 
and  are  used  by  them  in  connection  with  their  said  works  for  the 
various  purposes  thereof. 

Your  petitioners  further  say  that  for  more  than  three  years  now 
last  past  they  have  been  and  now  are  seized  and  possessed  of  the 
land,  buildings,  rights,  privileges,  easements  and  water-power 
aforesaid,  in  fee-simple,  and  of  right  ought  to  enjoy  the  same 
uninjured  and  the  use  of  the  waters  in  Sudbury  river  and  Farm 
pond  and  their  tributaries  as  they  would  naturally  flow  into  Con- 
cord river  and  said  canal  to  their  premises  aforesaid,  the  said 
Sudbury  river  and  Farm  pond  having  been  from  time  immemorial 
tributary  to  and  flowing  into  said  Concord  river  and  supplying  the 
same  in  natural  channels  with  large  quantities  of  water  above 


588 


Lowell  Bleachery. 


said  dam  and  canal.  And  your  petitioners  say  that  for  more 
than  three  years  last  past  they  have  had  and  still  have  and  possess 
in  fee-simple  the  right  that  said  Concord  river  should  flow  in  the 
same  manner,  quantity,  volume  and  force,  and  within  the  same 
limits  and  channel  and.  with  the  same  sources  of  supply  as  said 
river  did  before  the  action  of  the  City  of  Boston,  hereinafter  set 
forth,  and  had  done  from  time  immemorial,  and  that  the  water 
thereof  should  continue  to  flow  to  said  dam  and  canal  in  its 
accustomed  and  ancient  channel  and  by  said  canal  and  head  race- 
way and  flume  and  suitable  sluiceways  made  by  the  petitioners  on 
to  their  premises  aforesaid,  so  that  the  quantity  of  water  above 
described  belonging  to  them  might  flow  on  to  their  said  premises 
to  be  used  by  them  for  all  purposes  on  premises  belonging  to 
them,  and  to  flow  over  and  off  the  same.  And  your  petitioners 
say  that  they  are,  and  for  more  than  three  years  last  past,  have 
been  seized  and  possessed  in  fee  simple  of  the  right  to  have  the 
waters  of  said  Farm  pond,  so  called,  situate  in  Framingham,  in 
said  count}7,  and  of  Sudbury  river  and  their  tributaries  flow  in 
their  natural  and  anbient  channels  into  said  Concord  river,  above 
said  dam  and  canal  and  to  said  canal  and  dam,  and  through  said 
canal  to,  on  and  over  their  premises  to  supply  them  with  their 
water-rights  and  with  water  aforesaid  thereon,  as  they  naturally 
would  have  done  but  for  the  acts  and  doings  of  said  city  as  herein 
set  out.  And  your  petitioners  further  represent  that  by  virtue  of 
an  act  of  the  Legislature  of  the  Commonwealth  of  Massachusetts, 
entitled  “ An  act  to  authorize  the  City  of  Boston  to  obtain  an 
additional  supply  of  pure  water,”  approved  April  8,  1872,  the  said 
City  of  Boston,  situate  in  the  County  of  Suffolk,  has  within  three 
years  last  past,  first  actually  taken  at  the  point  or  points  author- 
ized by  said  act,  through  the  agency  pointed  out  in  said  act  and  for 
the  purposes  therein  set  forth,  all  the  waters  of  said  Sudbury  river 
and  all  the  waters  of  said  Farm  pond  and  of  the  streams  and 
tributaries,  whether  natural  or  artificial,  flowing  into  them  by  means 
of  certain  dams,  obstructions  and  works,  built  by  said  city  in  said 
town  of  Framingham,  under  said  act  and  the  authority  thereof,  and 
for  the  purposes  therein  authorized,  and  still  continues  and  main- 
tains said  taking  and  said  dam,  obstructions  and  works,  and  have 
withdrawn  and  diverted  the  waters  of  said  Sudbury  river  and  Farm 
pond,  and  their  tributaries,  from  their  natural  flow7,  course  hnd 
current,  so  that  the  waters  thereof  no  longer  flow  into  Concord 
river,  and  are  prevented  by  said  city  from  so  flowing  and  from 
passing  in  their  natural  channel,  and  by  said  canal  to  and  on  said 
premises  of  your  petitioners  as  your  petitioners  are  rightly 
entitled  to  have  them  flow7,  and  as  they  would  flow  naturally  if  not 
so  interrupted.  And  your  petitioners  say  that  by  said  acts  of  said 
City  of  Boston  they  are  deprived  of  a large  amount  of  water, 
water-power,  rights,  mill  privileges  and  other  rights  aforesaid,  and 
of  their  right  to  the  natural  flowr  of  water  to  and  in  said  Concord 
river,  and  to  said  dam  and  canal,  and  of  the  right  to  have  the  same 
flow  from  said  Concord  river,  by  said  canal,  to  and  upon  and  over 
their  said  premises  to  supply  their  rights,  privileges,  easements, 
water  and  water-powrer  aforesaid,  upon  their  premises,  and  the  City 


Petition. 


589 


of  Boston  has  taken  and  appropriated  as  aforesaid  all  the  waters 
of  said  Sudbury  river  and  Farm  pond  and  their  tributaries  to  their 
own  use,  to  the  great  damage  of  your  petitioners,  sustained  in  their 
property  aforesaid.  And  your  petitioners  say  that  by  the  taking 
of  the  waters  of  Sudbury  river  and  Farm  pond  and  their  tributaries, 
and  by  the  erection  and  maintenance  of  their  said  dam  and  works, 
and  by  the  acceptance  and  exercise  of  the  powers  and  privileges 
given  by  said  act  by  said  city,  and  by  the  acts  and  doings  of  said 
city  under  said  act,  and  by  their  taking  and  interfering  with  and 
injuring  the  use  and  enjoymen’t  of  the  waters  of  said  river,  to 
which,  at  the  time  of  such  taking,  your  petitioners  were  justly 
entitled,  your  petitioners  have  sustained  great  damage  in  their 
property,  and  they  have  not  agreed  and  have  not  been  able  to  agree 
with  said  City  of  Boston  upon  the  damages  to  be  paid  them  there- 
for, and  said  city  has  not  offered  to  pay  them,  as  such  damages, 
any  sum  whatever.  Wherefore  your  petitioners  pray  this  Honor- 
able Court  for  the  assessment  of  their  said  damages  for  the  taking 
of  said  waters  of  said  Sudbury  river  and  Farm  pond,  and  their 
tributaries,  and  the  acts  and  doings  of  said  city  aforesaid,  and 
that  after  due  notice  and  summons  to  said  City  of  Boston,  this 
Honorable  Court  will  appoint,  upon  default  or  hearing  of  said  City 
of  Boston,  three  judicious  and  disinterested  freeholders  of  this 
Commonwealth,  who  shall  assess  said  damages  according  to  law, 
and  that  all  such  other  and  further  proceedings  may  be  had  in  the 
premises  as  to  law  and  justice  shall  appertain. 

The  Lowell  Bleachery,  by 

F.  R.  APPLETON, 

Ac’y  Lowell  Bleachery. 

D.  S.  & Gr.  F.  RICHARDSON, 

Attorneys  for  Petitioners. 

June  10,  1875. 

Suffolk,  ss.  Boston,  July  16,  1875. 

I,  this  da}7,  summoned  the  within-named  City  of  Boston  to  appear 
and  answer  at  court,  by  giving  in  hand  attested  copies  of  this 
writ,  and  of  the  petition  thereto  annexed,  to  Charles  H. 
Dennie,  Esq.,  Treasurer,  and  Samuel  F.  McCleary,  Esq.,  Clerk  of 
said  City  of  Boston. 

Service  and  travel,  $2.08 
Copies,  7.00 


$9.08 

BENJ.  F.  BAYLEY, 

Deputy  Sheriff. 

Mr.  Richardson.  The  Bleachery  lot  was  the  last  lot  that 
Mr.  Whipple  owned  before  you  arrived  at  the  land  of  the 
Bleachery:  Mr.  Wood’s  is  the  one  before.  The  grant  was 
made  to  the  Bleachery  in  a similar  manner. 

Mr.  Butler.  I guess  you  had  better  read  from  the  deed. 


590 


Lowell  Bleachery. 


Know  all  men  by  these  Presents , that  I,  Oliver  M.  Whipple,  of 
Lowell,  in  the  County  of  Middlesex,  and  Commonwealth  of  Massa- 
chusetts, in  consideration  of  thirteen  thousand  five  hundred 
dollars  to  m.e  paid  by  the  Lowell  Bleachery,  a body  corporate, 
duly  established  by  law  at  said  Lowell,  the  receipt  whereof  is 
hereby  acknowledged,  do  hereby  give,  grant,  bargain,  sell  and 
convey  unto  the  said  Lowell  Bleachery,  their  successors  and 
assigns  forever,  a certain  piece  or  parcel  of  land,  situated  in 
said  Lowell,  and  thus  bounded  and  described : beginning  at  the 
southwesterly  corner  of  the  premises,  at  a point  on  the  northerly 
side  of  Moore  street,  at  a post  and  at  land  of  said  Lowell  Bleachery  ; 
thence  easterly  along  Moore  street,  one  hundred  and  six  and  five 
one  hundredths  feet  to  a new  street,  to  be  laid  out  by  the  grantor 
thirty  feet  in  width  along  the  whole  easterly  side  of  the  premises 
hereby  conve3Ted,  which  street  is  also  to  be  extended  by  the  grantor 
in  the  same  direction,  northerly  until  it  intersects  a street  or  way 
now  leading  to  Lawrence  street ; thence  along  the  westerly  line  of 
said  new  street  at  an  angle  with  Moore  street  of  89°,  and  running 
north  5°  50'  west,  eleven  hundred  and  seven  and  two  tenths  feet 
to  a stake  ; thence  at  an  angle  of  106°  2L,  and  running  north  86° 
west,  along  other  land  of  the  grantor  to  River-meadow  brook,  so 
called ; thence  crossing  said  River-meadow  brook,  and  continuing 
in  the  same  direction  along  the  southerly  side  of  a new  street,  to 
be  laid  out  by  the  grantor  thirty  feet  in  width  to  a stone  bound  at 
the  comer  of  a fence  at  land  of  the  grantees  at  Babcock  street ; 
thence  easterly  along  land  of  the  grantees  to  a stone  bound  ; thence 
south  1°  east  along  laud  of  the  grantees  eleven  hundred  and  eight 
and  eighty  one  hundredths  feet,  to  the  point  of  beginning  on  Moore 
street. 

Also  the  right,  privilege  and  easement  to  take  water  bjT  means  of 
the  canal  of  the  grantor,  leading  out  of  Concord  river,  which  canal 
is  to  be  extended  by  the  grantor  to  the  northerly  line  of  the 
premises  hereby  conveyed,  and  by  means  of  a head  raceway  to 
enter  said  canal  thus  extended,  and  conduct  the  water  therefrom, 
the  same  to  be  done  in  such  manner  as  in  no  wise  to  injure  or 
weaken  said  canal.  And  the  said  grantor  hereby  covenants  and 
agrees  with  the  said  grantees,  their  successors  and  assigns,  that  he 
will  construct  and  extend  said  canal,  from  the  termination  of  his 
present  canal  leading  out  of  Concord  river,  up  to  a point  on  the 
northerly  line  of  the  premises  hereby  conve}Ted,  within  ten  feet 
westerl}T  of  the  railroad  track  as  now  constructed,  within  sixty  days 
from  the  da}”  of  the  date  hereof.  Also,  the  right  for  said  water  to 
enter  and  flow  through  the  canal  from  Concord  river,  and  its 
extension  to  the  extent  hereinafter  specified,  and  the  right  forever 
hereafter  to  have  said  canal  from  Concord  river  to  its  termination 
as  extended,  and  the  banks  thereof,  and  the  permanent  dam  owned 
by  the  grantor  across  Concord  river,  continued  for  the  purpose  of 
affording  water  for  any  and  all  purposes,  and  a water-power,  and 
to  the  extent  and  with  the  exceptions  and  reservations  hereinafter 
set  forth.  The  quantit}*  of  water  which  may  be  drawn  from  the 
canal  by  the  grantees,  their  successors  and  assigns,  is  strictly 
limited  to  and  shall  not  exceed  thiidy-six  cubic  feet  per  second,  for 


Deed. 


591 


eleven  and  one-quarter  hours  per  day  of  six  days  of  the  week. 
And  if  at  any  time  the  water  in  the  canal  shall  not  equal  two  hun- 
dred and  eighty-eight  cubic  feer  per  second,  during  the  time 
aforesaid,  then  the  grantees,  their  successors  and  assigns,  shall 
during  such  time  be  restricted  to  one-eighth  of  the  quantity  of 
water  in  the  canal.  Meaning  that  the  quantity  of  water  which  may 
be  drawn  from  the  canal  by  the  grantees,  their  successors  or 
assigns,  shall  never  at  any  time  exceed  thirty-six  cubic  feet  per 
second,  for  the  above-specified  time,  however  great  may  be  the 
supply  of  water  from  the  said*  canal,  and  that  the  quantity  of 
water  which  may  be  taken  by  the  grantees,  their  successors  or 
assigns,  shall  be  restricted  to  such  an  amount  less  than  thirty-six 
cubic  feet  per  second,  during  the  above-specified  time,  as  shall  be 
equal  to  one-eighth  of  the  supply  afforded  from  the  canal,  when- 
ever the  water  in  the  canal  shall  be  less  than  twro  hundred  and 
eighty-eight  cubic  feet  per  second,  for  eleven  and  one-quarter  hours 
per  da}7,  for  six  days  of  the  week. 

And  the  said  grantor,  for  himself  his  heirs  and  assigns,  cove- 
nants with  the  grantees,  their  successors  and  assigns,  that  he  will, 
within  six  months  from  this  date,  so  enlarge  his  said  canal  leading 
from  Concord  river  to  the  northerly  line  of  the  premises  hereby 
conveyed,  that  the  same  shall  be  of  sufficient  capacity  at  all  times, 
when  the  water  in  the  river  and  canal  is  as  high  as  the  top  of  the 
said  permanent  dam  in  Concord  river,  to  carry  and  discharge  not 
less  than  two  hundred  and  eighty-eight  cubic  feet  per  second,  of 
eleven  and  one-quarter  hours  per  day,  of  six  days  of  the  week, 
without  the  water  therein  at  the  head  of  the  head  race-ways  of  the 
grantees  being  drawn  down  more  than  six  inches  below  the  top  of 
said  permanent  dam.  And  the  said  Whipple,  for  himself,  his  heirs 
and  assigns,  further  covenants  that  he  will  forever  after  keep  and 
maintain  in  suitable  and  proper  condition  and  repair  said  canal, 
enlarged  to  the  capacity  aforesaid,  and  the  banks,  and  parts,  and 
appurtenances  thereof;  also  the  permanent  dam  aforesaid,  and  the 
eight-inch  flash-boards  as  they  are  usually  kept  thereon,  subject  to 
such  reasonable  and  temporary  interruptions  as  may  be  necessary 
in  such  maintenance  and  repairs. 

Reserving  to  the  grantor,  his  heirs  and  assigns,  and  to  all  other 
parties  having  any  legal  right  or  interest  theiein,  the  right  in  com- 
mon with  the  grantees,  their  successors  and  assigns,  to  use  the 
railroads  upon  the  premises  hereby  conveyed,  as  now  constructed. 

This  deed  is  on  the  express  condition,  that  for  affording  reason- 
able facilities  for  measuring  water  taken  from  the  canal,  by  the 
grantees,  their  successors  or  assigns,  the  head  race-way  of  the 
grantees  shall  consist  in  whole  or  in  part  of  a flume  or  flumes,  to 
be  located  at  the  termination  of  the  canal  as  extended  as  aforesaid, 
which  shall  not  be  less  than  fifteen  feet  in  length,  with  the  sides 
and  bottom  smooth.  And  the  grantor,  his  heirs  and  assigns,  may 
at  any  and  all  times  hereafter  enter  upon  the  premises  hereby  con- 
veyed, and  with  a competent  engineer  make  such  admeasurement 
as  may  be  requisite  and  proper  for  determining  the  quantity  of 
water  taken. 

To  have  and  to  hold  the  above-granted  premises,  with  all  the 


592 


Lowell  Bleachery. 


privileges  and  appurtenances  thereto  belonging  to  the  said  Lowell 
Bleachety,  their  successors  and  assigns,  to  their  use  and  behoof 
forever.  And  I,  the  said  Whipple,  for  myself,  and  my  heirs,  exec- 
utors and  administrators,  do  covenant  with  the  said  Lowell 
Bleachery,  their  successors  and  assigns,  that  I am  lawfully  seized  in 
fee-simple  of  the  aforegranted  premises  ; that  they  are  free  from  all 
incumbrances,  and  that  I have  good  right  to  sell  and  convey  the 
same  to  the  said  Lowell  Bleachery,  their  successors  and  assigns  as 
aforesaid.  And  that  I will,  and  my  heirs,  executors  and  adminis- 
trators shall,  warrant  and  defend  the  same,  to  the  said  Lowell 
Bleachery,  their  successors  and  assigns  forever,  against  the  lawful 
claims  and  demands  of  all  persons. 

In  witness  whereof,  I,  the  said  Oliver  M.  Whipple*  together 
with  Sarah  K.,  wife  of  said  Oliver  M.  Whipple,  who  joins  herein 
in  token  of  her  release  of  all  right  and  title  of  to  both  dower  and 
homestead,  in  the  granted  premises,  have  hereunto  set  our  hands 
and  seals,  this  twenty-first  day  of  August,  in  the  year  eighteen 
hundred  and  sixty-two. 

OLIVER  M.  WHIPPLE. 

SARAH  K.  WHIPPLE. 

The  words  ‘‘for  any  and  all  purposes,”  being  first  interlined. 

Signed,  sealed  and  delivered  in  presence  of 
E.  B.  PATCH. 

Middlesex,  ss.,  August  28,  1862. 

Then  personally  appeared  the  above-named  Oliver  M.  Whipple, 
and  acknowledged  the  foregoing  instrument  to  be  his  free  act  and 
deed. 

Before  me,  E.  B.  PATCH, 

Justice  of  the  Peace. 

Mr.  Richardson.  I will,  sir,  and  the  "consideration,” 
which  my  brother  desired  to  know,  in  the  other  deeds, 
and,  I presume,  will  in  this,  is  $13,500. 

Commissioner  Russell.  I think  you  did  not  give  it  in 
the  last  one. 

Mr.  Richardson.  Yes,  sir,  $4,000. 

Commissioner  Russell.  I did  not  catch  it. 

Mr.  Richardson.  Recollect  that  all  these  lots  were  with- 
out any  building,  — without  any  wheels.  The  consideration 
in  this  is  $13,500.  The  deed  is  dated  August  21st,  1862. 
1 said  that  this  land  was  situated  precisely  as  Mr.  Wood’s, 
with  the  canal  not  yet  built  down  to  Mr.  Wood’s  land,  and 
the  grant  power  was,  the  canal  water  may  be  drawn  from 
the  canal,  but  is  limited,  and  " shall  not  exceed  cubic  feet 
per  second  for  eleven  and  one-quarter  hours  per  day.” 

All  the  rest  of  the  provisions  were  like  what  were  in  the 
other  deeds,  with  a provision  that  the  canal  should  be 
extended  down  to  the  northerly  line  of  this  lot  which  was 
conveyed  in  this  deed. 


Argument  of  Storey. 


593 


Mr.  Butler.  How  much  land  was  conveyed  ? 

Mr.  Richardson.  I will  read  it.  '’A  certain  piece  or 
parcel  of  land  situate  in  said  Lowell,  and  thus  bounded  and 
described : beginning  at  the  southwesterly  corner  of  the 
premises  at  a point  on  the  northerly  side  of  Moore  street,  at 
a post  and  at  land  of  said  Lowell  bleachery ; thence  easterly 
along  Moore  street  one  hundred  and  six  and  five  one  hun- 
dredths feet  to  a new  street  to  be  laid  out  by  the  grantor 
thirty  feet  in  width.” 

Eleven  hundred  and  seven  feet  is  the  length  of  one  line. 
We  shall  have  some  witnesses  to  show.  The  bleachery  was 
incorporated  many  years  ago  for  the  purpose  of  coloring  and 
bleaching  woollen  and  cotton  goods,  and  owned  a large  tract 
of  land,  described  in  the  petition,  adjoining  this.  They 
went  on  and  put  into  this  land,  on  the  northerly  side  that  the 
cana!  was  to  be  constructed,  a flume,  and  they  have  put  in  a 
wheel  with  capacity  enough  to  use  the  power,  and  have  put 
in  works  by  which  they  could  use  the  power  for  the  purpose 
of  their  bleachery  and  works.  While  some  of  those  prepa- 
rations were  being  made  the  canal  was  extended  down  to  the 
northerly  line  to  meet  their  flume,  and  they  have  used  the 
water  as  they  might  from  that  time  to  this.  They  have  the 
means  by  their  flume  and  wheel  of  using  it  for  a power,  if 
power  might  be  necessary They  also  have  a use  for  it  dif- 
ferent from  what  the  others  do  for  the  purposes  of  their 
works,  and  there  will  be  some  evidence  of  the  need  of  water 
for  that  purpose,  and  the  value  of  water  for  that  purpose, 
both  or  either  of  which  measures  of  damages  you  will  con- 
sider in  finding  upon  our  loss. 


OPENING  ARGUMENT  OF  MOORFIELD 
STOREY,  ESQ. 

The  next  case  is  C.  Brown  Snyder,  the  owner  of  the 
Chase  mills.  The  petition  begins  with  a description  of  his 
land,  and  makes  the  same  allegations  that  the  other  petitions 
do  substantially.  I presume  it  will  not  be  desirable  to  read 
it. 

Mr.  Butler.  No,  sir. 

Mr.  Storey.  The  description  here  is  the  description  of 
the  land  as  it  stands.  The  title  to  the  land  is  derived  under 
quite  a number  of  deeds ; no  one  of  which  contains  the 
whole  description  as  it  is  given  here.  At  the  suggestion  of 
General  Butler,  in  order  to  bring  all  the  parties  before  the 
Court,  I have  had  the  petition  amended,  by  leave  of  the 


*594 


Case  of  C.  B.  Snyder* 


Court,  by  joining  in  it  Amory  Leland,  Charles  H.  Allen, 
Alfred  W.  Bates,  Benjamin  E.  Bates  and  C.  Brown  Snyder, 
partners,  under  the  firm  of  Leland,  Allen  & Bates,  who  hold 
two  mortgages  on  the  real  estate  and  the  water  rights. 
And  by  joining,  also,  Peter  O.  Strang,  of  New  York,  as  he 
is  surviving  trustee  under  an  indenture  of  trust  between  said 
Snyder  of  the  first  part,  and  Strang  and  Josiah  Bardwell 
of  the  other  part.  Mr.  Strang  holds,  as  trustee,  two  mort- 
gages to  the  amount  of  $80,000.  He  is  trustee  for  the  wife 
and  two  daughters  of  Mr.  Snyder.  Those  two  papers 
together  constitute  the  petition. 

Mr.  Butler.  What  is  the  father’s  conveyance? 

Air.  Storey.  I will  put  in  the  title  here  in  a moment. 
I suppose  the  petition  and  the  answers  will  be  printed? 

Commissioner  Bussell.  The  petition  will  be  printed.  I 
suppose  the  answer  is  the  same  precisely  as  in  the  other 
cases. 

Commissioner  Bussell  (addressing  official  stenographer). 
Print  the  petition  and  the  amendment,  and  then  make  a note 
saying  that  the  answer  is  the  same  as  the  case  of  Wilder, 
and  is  therefore  not  printed. 

COMMONWEALTH  OF  MASS ACHUSETTS . 

Middlesex,  ss. 

To  the  Sheriffs  of  our  several  Counties , or  their  Deputies, — 

Greeting  : 

We  command  you  to  summon  the  City  of  Boston,  a municipal 
corporation  established  under  the  laws  of  this  Commonwealth,  in 
the  County  of  Suffolk,  to  appear  before  the  justices  of  our 
Superior  Court,  to  be  holden  at  Lowell,  within  and  for  our  County 
of  Middlesex,  on  the  first  Monday  of  September  next,  and  answer 
to  the  petition  of  C.  Brown  Snyder,  of  the  City,  County  and  State 
of  New  York,  filed  in  the  office  of  the  Clerk  of  the  Courts  for 
said  County  of  Middlesex,  on  the  day  of  the  date  hereof,  a true 
and  attested  copy  of  which  petition  is  hereto  annexed. 

And  have  you  there  this  writ  with  your  doings  thereon. 

Witness,  Lincoln  F.  Brigham,  esquire,  at  Cambridge,  this 
eighteenth  day  of  June,  one  thousand  eight  hundred  and  seventy- 
five. 

THEO.  C.  HURD, 

Clerk. 

To  the  Honorable  the  Justices  of  the  Superior  Court  within  and  for 
the  County  of  Middlesex:  — 

Respectfully  represents  your  petitioners,  C.  Brown  Sn}Tder,  of 
the  City,  County  and  State  ot  New  York. 

1.  That  he  is  now  and  for  more  than  three  years  last  past  has 
been  lawfully  seized  in  fee  simple  of  a parcel  of  real  estate  situ- 


Petition. 


595 


ated  in  Lowell  in  said  county,  and  thus  described,  viz.  : beginning 
at  the  westerly  corner  of  the  premises,  at  a stone  marked  on  the 
easterly  face  of  the  easterly  bank-wall  of  Whipple’s  canal ; thence 
south  30^-°  east  thirty-two  and  forty  one-hundreths  feet ; thence  at 
an  angle  of  186°  25',  still  more  southerly  twenty  feet ; thence 
still  southerly,  at  an  angle  of  191°  9',  ten  feet;  thence  still  south- 
erly, at  an  angle  of  181°  35',  ten  feet ; thence  still  southerly,  at 
an  angle  of  172°  40',  ten  feet;  thence  still  southerly,  at  an  angle 
of  170°  10',  ten  feet;  thence  still  southerly,  at  an  angle  of  141° 
10',  eleven  and  five  one-hundredths  feet ; thence  still  more  south- 
erly than  said  last  line,  at  an  angle  of  217°  40',  nine  and  one- 
tenth  feet;  thence  westerly,  at  an  angle  of  270°,  seven  feet; 
thence  southerly,  at  an  angle  of  89°  44',  ninety  and  eighty-five 
one-hundredths  feet  to  a stake  at  said  easterly  face  of  said  bank- 
wall,  all  said  distances  from  the  point  begun  at,  to  said  stake, 
being  on  the  easterly  or  outside  face  of  said  bank-wall ; thence 
from  said  stake  easterly  at  a right  angle  ninety-five  feet  to  a 
marked  stone  bound  at  Concord  river ; thence  northerly,  on  the 
westerly  bank  of  Concord  river,  to  an  iron  bolt  in  the  ground  in 
the  river,  at  a point  which  will  be  met  by  extending  northerly  to 
the  river  (in  the  same  direction  the  line  now  runs  as  to  course)  the 
easterly  boundary-line  of  a lot  of  land  conveyed  by  said  Whipple 
to  Joshua  Mather  by  deed  dated  May  18th,  1857  ; thence  southerly 
fourteen  feet  to  a stake  at  the  northeasterly  corner  of  said  Mather 
lot ; thence  southerly  by  said  Mather  lot  eighty-seven  feet  to  a 
stake  at  the  southeasterly  corner  of  said  Mather  lot ; thence  west- 
erly, at  an  angle  of  218°  53',  fourteen  and  twenty-eight  one- 
hundredths  feet  to  the  point  of  beginning.  Also,  of  a certain 
other  parcel  of  real  estate,  situated  in  said  Lowell,  adjoining  the 
foregoing,  and  thus  bounded  and  described,  viz. : beginning  at 
the  northerly  corner  of  the  premises  at  the  corner  of  a wall 
at  the  junction  of  Concord  river  and  River  Meadow  brook ; 
thence  southwesterly  along  the  bank  of  said  River  Meadow 
brook  to  land  sold  by  Oliver  M.  Whipple  to  Joshua  Mather ; 
thence  southeasterly  along  said  Mather  land,  to  land  sold  by  said 
Whipple  to  A.  H.  Chase,  and  now  belonging  to  said  Snyder ; 
thence  northeasterly  along  said  petitioner’s  land  to  the  westerly 
bank  of  Concord  river ; thence  northwesterly  along  the  westerly 
bank  of  Concord  river  to  the  point  begun  at : containing  about 
eight  thousand  feet,  more  or  less. 

2.  That  as  appurtenant  to  said  real  estate  he  is,  and  for  more 
than  three  years  last  past  has  been,  in  full  possession  and  enjoy- 
ment of  a valuable  right,  privilege  and  easement,  viz. : the  right 
to  take  water  from  the  said  Concord  river,  through  and  by  means 
of  the  canal  now  or  formerly  of  one  Oliver  M.  Whipple,  lying 
southerly  of  the  first  parcel  of  real  estate  hereinbefore  described, 
to  an  amount  not  exceeding  forty-eight  cubic  feet  per  second,  for 
eleven  and  one-quarter  hours  per  day,  for  six  days  of  the  week, 
except  when  the  water  in  said  canal  is  not  equal  to  two  hundred 
and  eighty-eight  cubic  feet  per  second  during  the  time  aforesaid, 
and  then  to  an  amount  not  exceeding  one-sixth  of  the  water  flow- 
ing through  said  canal. 


596 


Case  of  C.  B.  Snyder. 


3.  That  your  petitioner  is,  and  during  the  whole  of  said  period 
has  been,  the  owner  of  a large  mill,  fully  equipped  with  expensive 
machinery  used  for  the  manufacture  of  cloth,  situated  upon  the 
said  real  estate,  which  depends  upon  the  water  which  your  peti- 
tioner has  the  right  to  draw  as  aforesaid  for  its  motive-power,  and 
which  was  erected  for  the  purpose  of  using  the  said  privilege  of 
taking  water,  and  that  the  said  real  estate,  mill  and  machinery, 
without  said  privilege,  would  be  of  little  or  no  value. 

4.  That  the  amount  of  wTater  in  said  canal  has  alwaj^s,  except 
in  rare  instances,  occasionally  occurring  in  exceptional  seasons, 
such  exceptional  periods  being  of  short  duration,  equalled  the 
amount  of  two  hundred  and  eighty-eight  cubic  feet  per  second  for 
eleven  and  one-quarter  hours  per  day  for  six  days  of  the  week ; 
and  that  the  amount  which  your  petitioner  has  been  able  to  draw 
from  said  river  by  virtue  of  his  said  privilege  was  always  suffi- 
cient for  all  the  requirements  of  his  said  mill,  until  the  water  of 
said  river  was  diverted  as  hereinafter  stated,  and  but  for  such 
diversion  would  have  continued  so  sufficient. 

5.  That  Sudbury  river,  so  called,  in  said  Commonwealth,  is 
one  of  the  natural  sources  and  tributaries  of  said  Concord  river, 
and  the  waters  thereof  are  the  principal  means  of  suppty  of  said 
Concord  river,  and  that  the  waters  of  said  Sudbury  river,  when 
undisturbed  and  unobstructed  and  left  to  their  natural  course  and 
current,  flow  into  said  Concord  river,  above  said  land  and  mill  of 
your  petitioner,  and  with  the  waters  of  said  Concord  river  have 
been  accustomed  to  and  of  right  ought  to  flow  through  the  canal 
aforesaid,  and  to  pass  by  and  through  the  said  land  and  mill,  and 
furnish  the  water-power  on  which  said  mill  and  machine^  are 
dependent  for  their  use  and  value  as  aforesaid  ; and  your  peti- 
tioner is  entitled  to  have  his  said  share,  viz. : forty-eight  cubic 
feet  per  second  of  the  waters  in  said  canal,  undiminished  and  un- 
abated ; and  your  petitioner,  if  deprived  of  the  right  to  the  waters 
of  said  Sudbury  river  flowing  as  aforesaid,  would  lose  substan- 
tially the  whole  of  his  said  right,  privilege  and  easement  in  the 
waters  of  the  said  Concord  river  and  in  said  canal,  and  the  value 
of  his  said  property,  mill  and  machinery  would  be  greatly  re- 
duced. 

6.  That  under  and  by  virtue  of,  in  accordance  with  and  for  the 
purpose  of  an  act  of  the  Legislature  of  the  Commonwealth  of 
Massachusetts,  passed  on  the  eighth  day  of  April,  A.D.  1872, 
entitled  “ An  Act  to  authorize  the  City  of  Boston  to  obtain  an 
additional  supply  of  pure  water,”  and  by  and  through  the  agency 
ordained  by  said  act,  the  City  of  Boston,  in  the  County  of  Suffolk 
in  said  Commonwealth,  within  three  3’ears  previous  to  the  filing 
of  this  petition  took,  held  and  conveyed  to  and  through  said  city 
all  the  waters  of  said  Sudbury  river  at  and  above  the  dam  built 
by  the  City  of  Boston  in  1872,  five  hundred  feet,  more  or  less, 
below  the  crossing  of  the  said  Sudbury  river  by  the  Boston,  Clin- 
ton and  Fitchburg  Railroad,  in  the  town  of  Framingham,  in  the 
County  of  Middlesex,  and  near  the  brook  which  is  the  outlet  from 
Farm  pond  into  said  river,  and  all  the  water  in  the  said  dam  to  the 
source  or  sources  of  said  river  ; also,  all  the  water  in  Farm  pond, 


Petition. 


597 


so  called,  in  the  said  town  of  Framingham,  and  all  the  water  in 
the  brook  connecting  Farm  pond  with  Sudbury  river  ; also,  all  the 
water  in  all  streams,  brooks  and  rivulets,  or  water-courses  of  any 
kind,  whether  natural  or  artificial,  that  may  flow  into  or  from 
said  Farm  pond,  and  into  or  from  said  Sudbury  river,  at  any 
point  or  points  above  said  dam,  subject  to  the  restrictions  set 
forth  in  section  4 of  chapter  177  of  the  Laws  of  1872, 
with  reference  to  said  water ; and  the  said  city  took  and 
held  the  whole  right,  title  and  interest  in  said  waters,  and  has 
become  the  sole  and  absolute  owner  of  the  same,  subject  to  the 
restrictions  aforesaid  ; and  by  and  as  a part  of  the  aforesaid 
taking,  the  city  took  and  your  petitioner  has  been  deprived  of 
substantially  the  whole  of  his  said  right,  privilege  and  easement 
to  take  water  from  said  Concord  river,  and  the  value  of  his  said 
property,  mill  and  machinery  has  been  greatly  reduced.  • 

7.  That  said  City  of  Boston,  by  the  authority  and  agency,  and 
for  the  purposes  hereinbefore  set  forth,  and  within  three  years  last 
past  from  the  day  of  the  date  of  this  petition,  first  actually  with- 
drew, diverted  and  obstructed,  and  has  ever  since  continued  and 
still  continues,  and  intends  henceforth  to  withdraw,  divert  and 
obstruct,  the  waters  of  said  Sudbury  river,  and  said  other  waters 
in  the  sixth  paragraph  of  this  petition  described,  from  and  in 
what  has  always  been  heretofore,  and  what  would  have  always 
been  hereafter,  their  natural  and  accustomed  flow  into  and  through 
said  Concord  river,  and  by,  through  and  over  the  aforesaid  land 
and  mill  of  your  petitioner.  All  of  which  past,  present  and  in- 
tended withdrawals,  diversions  and  obstructions  are  against  the 
rights  of  your  petitioner,  and  have  deprived  and  will  henceforth 
deprive  your  petitioner  of  the  water-power  to  which  he  is  entitled 
as  aforesaid,  and  have  greatly  diminished  and  will  henceforth 
greatly  diminish  or  destroy  the  value  of  your  petitioner’s  rights  in 
the  same,  and  in  said  property,  mill  and  machinery. 

8.  That  by  reason  of  said  taking  of  the  water  of  said  Sudbury 
river  and  the  other  waters  aforesaid,  and  by  reason  of  said  past, 
present  and  intended  withdrawals,  diversions  and  obstructions, 
and  by  reason  of  all  the  acts  of  said  City  of  Boston  and  its 
agents,  and  the  matters  and  things  hereinbefore  set  forth,  your 
petitioner  has  suffered  great  damages  in  his  property,  and  that  he 
has  cot  agreed  and  has  not  been  able  to  agree  with  the  said  City 
of  Boston  upon  the  damages  to  be  paid  therefor,  and  that  said 
city  has  not  offered  to  pay  him  as  such  damages  any  sum  whatever. 
Wherefore  your  petitioners,  not  waiving  any  right  to  take  advan- 
tage by  petition  for  a writ  of  certiorari  or  otherwise  of  errors 
and  irregularities  in  the  aforesaid  acts  and  proceedings,  but  ex- 
pressly reserving  the  right  so  to  do,  pra}Ts  for  the  assessment  of 
the  damages  by  him  sustained  as  aforesaid,  and  for  such  other 
relief  as  your  petitioner  may  be  entitled  to  have  in  this  Court, 
and  for  a summons  to  said  City  of  Boston,  conformably  to  the 
statutes  in  such  case  made  and  provided. 

C.  BROWN  SNYDER. 


598 


Case  of  C.  B.  Snyder. 


Suffolk,  ss.  Boston,  July  16,  1875. 

1 this  day  summon  the  within-named  City  of  Boston  to  appear 
and  answer  at  Court,  by  giving  in  hand  attested  copies  of  this 
writ,  and  of  the  petition  annexed,  to  Charles  H.  Dennie,  Esq., 
treasurer,  and  Samuel  F.  McCleary,  Esq.,  Clerk  of  said  City  of 
Boston. 

BENJ.  F.  BAYLEY, 

Deputy  Sheriff. 

Services  and  travel,  $2  08 
Copies,  7 00 


$9  08 


SUPERIOR  COURT. 

Middlesex,  ss.  September  Term,  1876. 

C.  B.  Snyder  et  al.  vs.  The  City  of  Boston. 

And  now  come  Amory  Leland,  Charles  H.  Allen,  Alfred  W. 
Bates,  Benjamin  E.  Bates,  and  C.  Brown  Snyder,  partners  under  the 
firm  of  Leland,  Allen  and  Bates,  and  say  that  they,  as  said  part- 
ners, hold  two  mortgages  upon  the  real  estate  and  mill  property 
and  rights  belonging  to  said  Snyder,  and  described  in  his  petition 
in  the  above-entitled  case,  the  first  made  b}r  Alfred  H.  Chase  of 
Lowell  to  the  Lowell  Five  Cent  Savings  Bank,  to  secure  the  sum 
of  seven  thousand  dollars,  and  subsequently  assigned  to  said  firm 
by  the  assignees  of  said  mortgage,  on  which  the  sum  of  thirty-five 
hundred  dollars  remains  unpaid  ; and  the  second  made  by  said 
Chase  to  Hocum  Hosford  of  said  Lowell,  to  secure  the  sum  of 
thirt}T-two  thousand  five  hundred  dollars,  of  which  six  thousand 
dollars  have  been  paid,  which  was  subsequently  assigned  to  said 
firm  by  the  assignees  thereof. 

And  also  comes  Peter  0.  Strang,  of  New  York,  as  he  is  surviv- 
ing trustee  under  an  indenture  of  trust  between  said  C.  Brown 
Snyder  of  the  one  part,  and  said  Strang  and  Josiah  Bardwell, 
late  of  Boston,  deceased,  of  the  other  part,  and  says  that,  as  such 
trustee,  he  holds  two  mortgages  upon  the  estate,  mill  propert}7,  and 
rights  belonging  to  said  Snyder,  end  described  in  said  petition, 
the  first  made  by  said  Alfred  H.  Chase  to  Josiah  Gates  and  others, 
to  secure  the  sum  of  fifty  thousand  dollars,  and  subsequently 
assigned  to  said  Strang  and  Bardwell,  as  said  trustees,  by  the 
assignees  thereof;  and  the  second  made  by  said  Snyder  to  said 
Strang  and  Bardwell,  as  trustees,  to  secure  the  payment  of  thirty 
thousand  dollars. 

And  the  said  Leland,  Allen,  Alfred  W.  Bates,  Benjamin  E. 
Bates,  and  C.  Brown  Snyder,  partners  as  aforesaid,  and  the  said 
Peter  O.  Strang,  trustee  as  aforesaid,  ask  that  thej'  may  be  ad- 
mitted as  parties  to  said  petition  of  said  C.  Brown  Snyder,  and 


Deed. 


599 


may  be  allowed  jointly  with  him  to  prosecute  the  claim  for  dam- 
ages therein  set  forth  against  Ihe  said  City  of  Boston. 

AMORY  LELAND, 
CHARLES  H.  ALLEN, 
ALFRED  W.  BATES, 
BENJAMIN  E.  BATES, 

C.  BROWN  SNYDER. 

By  BROOKS,  BALL  & STOREY, 

Their  Attorneys. 

PETER  O.  STRANG. 

By  BROOKS,  BALL  & STOREY, 

His  Attorneys. 


Mr.  Storey.  The  immediate  title  to  this  property  came 
from  a deed  of  Oliver  B.  Coe,  dated  the  5th  day  of  Febru- 
ary, 1872. 

This  indenture , made  the  fifth  day  of  February,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  seventy-two,  between 
Oliver  B.  Coe  and  Annie  I.,  his  wife,  of  the  City  of  Boston,  in  the 
county  of  Suffolk,  and  Commonwealth  of  Massachusetts,  parties 
of  the  first  part,  and  C.  Brown  Snyder,  of  Spuyten  Duyvel,  in  the 
county  of  Westchester,  and  State  of  New  York,  party  of  the 
second  part,  witnesseth,  that  the  said  parties  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  six  hundred  dollars,  lawful 
money  of  the  United  States  of  America,  to  them  in  hand  paid  by 
the  said  party  of  the  second  part,  at  or  before  the  ensealing  and 
delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, have  remised,  released,  and  quitclaimed,  and  by  these 
presents  do  remise,  release,  and  quitclaim  unto  the  said  party  of 
the  second  part,  and  to  his  heirs  and  assigns,  forever,  all  that  cer- 
tain real  estate  lying  and  being  situated  in  the  City  of  Lowell,  in 
the  County  of  Middlesex,  and  Commonwealth  of  Massachusetts, 
and  known  as  the  Chase  Mills,  which  was  conveyed  to  me  by 
Alfred  H.  Chase  and  Helen  F.,  his  wife,  by  quitclaim  deed,  dated 
February  9th,  1871,  and  recorded  in  Middlesex  Northern  District 
Registry  of  Deed's,  February  10th,  1871,  book  77,  page  527,  in  which 
said  deed  reference  is  made,  for  further  description  of  the  prop- 
erty thereby  conveyed,  to  the  following  deeds  : Deed  of  Oliver  M. 
Whipple  to  said  Chase,  dated  February  20th,  1863,  and  recorded 
in  Middlesex  Northern  Registry  of  Deeds,  February  21st,  1863, 
book  33,  page  184  ; also  deed  of  Hocum  Hosford,  dated  March 
5th,  1866,  to  said  Chase,  and  recorded  in  said  Registry  of  Deeds, 
March  13th,  1866,  book  47,  page  244.  Also,  for  further  descrip- 
tion reference  is  made  to  deed  of  said  Chase  to  said  Hosford, 
dated  December  1st,  1863,  and  recorded  in  said  Registry  of  Deeds, 
December  29th,  1863,  book  36,  page  364.  Reference  is  also  made 
for  further  description  to  six  deeds  to  said  Chase  and  Hosford,  as 
follows : Deed  by  Ephraim  B.  Patch,  dated  February  29th,  1864, 


600 


Case  of  C.  B.  Snyder. 


recorded  in  said  Registry  of  Deeds,  March  1st,  1864,  book  36, 
page  544  ; deed  by  E.  B.  Patch,  dated  February  10th,  1865,  and  re- 
corded in  said  Registry  of  Deeds,  February  lltli,  1865,  book  41, 
pages  7 and  8 ; deed  by  L.  W.  Faulkner,  dated  Februar}''  29th, 

1864,  and  recorded  in  said  Registry  of  Deeds,  August  13th,  1864, 
book  40,  page  78  ; deed  from  Luther  Richards,  dated  February 
20th,  1865,  and  recorded  in  said  Registry  of  Deeds,  February  21st, 

1865,  book  41,  page  120  ; deed  from  John  Rothwell,  dated  Decem- 
ber 11th,  1863,  and  recorded  in  said  Registry  of  Deeds,  December 
29th,  1863,  book  36,  page  369  ; deed  from  Joseph  Ball,  dated 
December  9th,  1863,  and  recorded  in  said  Registr}7  of  December 
9th,  1863,  book  36,  page  293.  Meaning  herebj^  to  convey,  and  I 
do  hereby  convey,  unto  the  said  Snyder,  all  that  factory  estate 
known  as  the  Chase  Mills,  with  all  the  privileges,  water-rights, 
easements,  and  appurtenances  thereto  belonging,  and  all  machin- 
ery, fixtures,  and  tools  on  said  premises  and  connected  therewith, 
the  said  factory  estate  being  situated  in  said  Lowell.  These  said 
premises  are  subject,  as  to  the  whole  or  a part  thereof,  to  the  fol- 
lowing-named mortgages,  viz. : Mortgage  deed  from  said  Alfred 
H.  Chase  to  the  Lowell  Five  Cent  Savings  Bank,  of  Lowell,  dated 
February  20th,  1863,  and  recorded  in  Middlesex  Northern  District 
Registiy  of  Deeds,  February  21,  1863,  book  33,  page  189  ; also  a 
mortgage  deed  from  said  Chase  to  Hocum  Hosford,  of  Lowell, 
dated  March  5th,  1866,  and  recorded  in  said  Registry  of  Deeds, 
March  13th,  1866,  book  47,  page  246  ; also  a mortgage  deed  from 
said  Chase  to  said  Hosford,  dated  March  12th,  1866,  and  recorded 
in  said  Registry  of  Deeds,  March  13th,  1866,  in  book  47,  page 
248  ; also  a mortgage  deed  from  said  Chase  to  said  Hosford,  dated 
April  17th,  1866,  and  recorded  in  said  Registry  of  Deeds,  April 
20th,  1866,  in  book  48,  page  242  ; also  a mortgage  deed  from 
said  Chase  to  Josiah  Gates,  Horace  J.  Adams,  William  H.  Wig- 
gin,  and  Charles  P.  Talbot,  all  of  Lowell,  and  Thomas  Talbot,  of 
Billerica,  dated  February  1st,  1867,  and  recorded  in  said  Registry 
of  deeds,  February  2d,  1867,  book  54,  page  266  ; also  a mortgage 
deed  from  said  Chase  to  Peter  O.  Strang,  of  New  York,  dated 
June  13th,  1867,  recorded  in  said  Registry  of  Deeds,  June  13th, 
1867,  book  57,  page  201. 

Together  with  all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in  anywise  appertain- 
ing, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues  and  profits  thereof.  And  also,  all  the  estate,  right, 
title,  interest,  homestead  rights,  dower,  and  rights  of  dower, 
property,  possession,  claim  and  demand  whatsoever,  as  well  in 
law  as  in  equity,  of  the  said  parties  of  the  first  part,  of,  in  or  to 
the  above-described  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances.  To  have  and  to  hold  all  and  singular  the 
above  mentioned  and  described  premises,  together  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part,  his  heirs,  and 
assigns  forever. 

In  witness  whereof,  the  said  parties  of  the  first  part  have  here- 


Deed. 


601 


unto  set  their  hands  and  seals,  the  day  and  year  first  above 
written. 

OLIVER  B.  COE. 

ANNIE  I.  COE. 

Sealed  and  delivered  in  presence  of 

CHAS.  H.  ALLEN, 

As  to  0.  B.  C. 

WILL.  HOLMES. 

State  of  Massachusetts,  County  of  Suffolk,  ss. 

On  this  eighth  day  of  February,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-two,  before  me  personally 
came  Oliver  B.  Coe  and  Annie  I.  Coe,  to  me  known  to  be  the 
individuals  described  in,  and  who  executed  the  within  conveyance, 
who  have  acknowledged  that  they  executed  the  same. 

WM.  M.  BUNTON, 

Justice  of  the  Peace. 

Mr.  Storey.  Then  there  is  a deed  of  Alfred  H.  Chase 
to  Coe,  dated  February  9th,  1871,  which  conveys  the  prop- 
erty which  is  described  in  the  petition. 

Know  all  men  by  these  Presents , That  I,  Alfred  H.  Chase,  of 
Lowell,  in  the  County  of  Middlesex,  and  Commonwealth  of  Mas- 
sachusetts, in  consideration  of  six  hundred  dollars,  paid  by  Oliver 
B.  Coe,  of  the  City  of  Boston,  in  the  County  of  Suffolk,  and  Com- 
monwealth of  Massachusetts,  the  receipt  whereof  which  is  hereby  ac- 
knowledged, do  hereby  remise,  release,  and  forever  quitclaim  unto 
the  said  Coe,  his  heirs  and  assigns,  all  the  real  estate  situated  in 
said  Lowell  which  was  conveyed  to  me  by  and  described  in  the 
deeds  of  Oliver  M.  Whipple,  dated  February  20th,  1863,  and  re- 
corded in  Middlesex  Northern  District  Registry  of  Deeds,  Feb- 
ruary 21st,  1863,  book  33,  page  184.  Also  all  the  estate  whereof 
one  undivided  half  was  conveyed  to  me  by  deed  of  Hocum  Hos- 
ford,  dated  March  5th,  1866,  and  recorded  in  said  Registry  of 
Deeds,  March  13th,  1866,  book  47,  page  254,  the  other  undivided 
half  of  which  was,  previously  to  said  last-named  deed,  owned  by 
me  in  common  with  said  Hosford,  and  the  title  to  which  is  cited 
in  his  said  deed  to  me ; also  all  the  estate  of  which  one  undivided 
half  was  by  me  conveyed  to  said  Hosford  by  deed  dated  December 
1st,  1863,  and  recorded  in  said  Registry  of  Deeds  December  29th, 

1863,  in  book  36,  page  364,  as  well  as  that  purchased  by  said 
Hosford  and  myself  together,  by  deeds,  from  Ephraim  B.  Patch, 
dated  February  29th,  A.  D.  1864,  recorded  in  said  Registry  March 
1st,  1864,  book  36,  page  544  ; deed  from  Ephraim  B.  Patch,  dated  ' 
February  10th,  1865,  and  recorded  in  said  Registry  February  11th, 
1865,  book  41,  pages  7 and  8 ; deed  from  L.  W.  Faulkner,  dated 
February  29th,  1864,  and  recorded  in  said  Registry  August  13th, 

1864,  book  40,  page  78  ; deed  from  Luther  Richards,  dated  Feb- 
ruary 20th,  1865,  and  recorded  in  said  Registry  February  21st, 


602 


Case  of  C.  B.  Snyder. 


1865,  in  book  41,  page  120;  deed  from  John  Rothwell,  dated 
December  lltli,  1863,  and  recorded  in  said  Registry  December 
29th,  1863,  book  36,  page  369  ; deed  from  Joseph  Ball,  dated 
December  9th,  1863,  and  recorded  in  said  Registry  December  9th, 
1863,  book  36,  page  293.  Meaning  hereby  to  convey,  and  I do 
hereby  convey,  unto  the  said  Coe  all  my  factory  estate  known  as 
the  “ Chase  Mills,”  with  all  the  privileges,  water-rights,  easements, 
and  appurtenances  thereto  belonging,  and  all  machinery,  fixtures, 
and  tools  on  said  premises  and  connected  therewith,  the  said  fac- 
tory estate  being  situated  in  said  Lowell. 

The  said  premises  are  subject  as  to  the  whole  or  a part  thereof 
to  the  following-named  mortgages,  viz. : Mortgage  deed  from  me 

to  the  Lowell  Five  Cents  Savings  Bank  of  Lowell,  dated  February 
20th,  1863,  and  recorded  in  Middlesex  Northern  District  Registry 
of  Deeds  February  21st,  1863,  in  book  33,  page  189  ; also  a 
mortgage  deed  from  me  to  Hocum  Hosford  of  Lowell,  dated  March 
5th,  1866,  and  recorded  in  said  Registry  March  13,  1866,  in  book 
47,  page  246  ; also  a mortgage  deed  from  me  to  Hocum  Hosford 
aforesaid,  dated  March  12th,  1866,  and  recorded  in  said  Registry 
of  Deeds  March  13th,  1866,  in  book  47,  page  248  ; also  a mort- 
gage deed  from  me  to  said  Hocum  Hosford,  dated  April  17th, 

1866,  and  recorded  in  said  Registry  April  20th,  1866,  in  book  48, 
page  242  ; also  a mortgage  deed  from  me  to  Josiah  Gates,  Horace 
J.  Adams,  William  H.  Wiggin,  and  Charles  P.  Talbot,  all  of 
Lowell,  and  Thomas  Talbot  of  Billerica,  dated  February  1st,  1867, 
and  recorded  in  said  Registry  February  2d,  1867,  in  book  54, 
page  266  ; also  a mortgage  deed  from  me  to  Peter  O.  Strang  of 
New  York,  dated  June  13th,  1867,  and  recorded  in  said  Registry 
of  Deeds  June  13th,  1867,  in  book  57,  page  201.  Also  these 
premises  are  subject  to  a lease  from  me  to  Messrs.  Strang,  Platt 
& Co.  of  New  York,  dated  March  12th,  1868. 

To  have  and  to  hold  the  granted  premises,  with  all  the  privileges 
and  appurtenances  thereto  belonging,  to  the  said  Oliver  B.  Coe 
and  his  heirs  and  assigns,  to  their  own  use  and  behoof  forever. 

And  I do  hereby,  for  myself  and  my  heirs,  executors,  and  ad- 
ministrators, covenant  with  the  said  grantee  and  his  heirs  and 
assigns  that  the  granted  premises  are  free  from  all  incumbrances 
made  or  suffered  by  me,  except  the  six  mortgages  and  one  lease 
referred  to  aforesaid  ; and  that  I will  and  my  heirs,  executors  and 
administrators  shall  warrant  and  defend  the  same  to  the  said 
grantee  and  his  heirs  and  assigns  forever  against  the  lawful  claims 
and  demands  of  all  persons  claiming  by,  through,  or  under  me 
except  as  aforesaid,  but  against  none  other.  And  for  the  consid- 
eration aforesaid,  I,  Helen  F.  Chase,  wife  of  Alfred  H.  Chase 
aforesaid,  do  hereby  release  unto  the  said  grantee,  and  his  heirs 
and  assigns,  all  right  of  or  to  both  dowTer  and  homestead  in  the 
granted  premises. 

In  witness  wiiereof  we,  the  said  Alfred  H.  Chase  and  Helen  F. 
Chase,  have  hereunto  set  our  hands  and  seals  and  affixed  and  can- 
celled the  stamp  required  by  law,  this  9th  day  of  February,  in  the 
year  one  thousand  eight  hundred  and  seventy-one. 

ALFRED  H.  CHASE. 

HELEN  F.  CHASE. 


Deed. 


603 


Signed  in  presence  of 

FRANCIS  C.  CROSS  to  A.  H.  C. 

SUSAN  WHEELOCK  to  H.  F.  C. 

The  words  u right,  title,  and  interest  in  and  to,”  “ all  that  cer- 
tain,” were  erased  before  signing  ; also  the  word  “ title  ” in  the 
eighteenth  line  from  top  was  interlined  before  signing. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Middlesex,  ss.  Feb.  10,  1871. 

Then  personally  appeared  the  above-named  Alfred  H.  and 
Helen  F.  Chase,  and  acknowledged  the  foregoing  instrument  to  be 
their  free  act  and  deed.  Before  me, 

JOHN  F.  MANAHAN, 

Justice  of  the  Peace. 

Mr.  Storey.  The  original  deeds  which  describe  our 
water-rights  are  two  : one  the  deed  of  Oliver  M.  Whipple 
to  Alfred  H.  Chase,  dated  20th  February,  1863,  and  the 
other  a deed  from  Ephraim  B.  Patch  to  Hocum  Hosford  and 
Alfred  H.  Chase,  dated  February  29,  1864. 

Know  all  men  by  these  Presents , That  I,  Oliver  M.  Whipple,  of  Lowell, 
in  the  County  of  Middlesex,  and  Commonwealth  of  Massachusetts,  in  con- 
sideration of  fourteen  thousand  dollars  to  me  paid  by  Alfred  H.  Chase,  of 
said  Lowell,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby 
give,  grant,  bargain,  sell  and  convey  unto  the  said  Alfred  H.  Chase, 
his  heirs  and  assigns,  a certain  parcel  of  land,  situate  in  said  Lowell, 
on  Concord  river,  and  thus  described,  viz. : “ beginning  at  the  westerly 
corner  of  the  premises  at  a stone  marked  on  the  easterly  face  of  the 
easterly  bank-wall  of  Whipple’s  canal,  thence  S.  304  degrees,  E.  thirty- 
two  40-100  feet ; thence  at  an  angle  of  186  degrees  and  twenty-five 
min.;  still  more  southerly  twenty  feet;  thence  still  southerly  at  an 
angle  of  191  deg.  9 min.,  ten  feet;  thence  still  southerly  at  an  angle  of 
181  deg.,  35  min.,  ten  feet ; thence  still  southerly  at  an  angle  of  172  deg. 
40  min.,  ten  feet;  thence  still  southerly  at  an  angle  of  170  deg.  10  min. 
ten  feet;  thence  still  southerly  at  an  angle  of  141  deg.  10  min.,  eleven 
and  5-100  feet ; thence  still  more  southerly  than  said  last  line  at  an 
angle  of  217  deg.  40  min.,  nine  and  1-10  feet;  thence  westerly  at  an 
angle  of  270  deg.,  seven  feet;  thence  southerly  at  an  angle  of  89  deg. 
44  min.,  ninety  and  85-100  feet  to  a stake  at  said  easterly  face  of  said 
bank  wall ; all  said  distances  from  the  point  begun  at  to  said  stake, 
being  on  the  easterly  or  outside  face  of  said  bank  wall ; thence  from 
said  stake  easterly  at  a right  angle  ninety-five  feet  to  a marked  stone 
bound  at  Concord  river ; thence  northerly  on  the  westerly  bank  of  Con- 
cord river  to  an  iron  bolt  in  the  ground  in  the  river,  at  a point  which 
will  be  met  by  extending  northerly  to  the  river  (in  the  same  direction 
the  line  now  runs  as  to  course),  the  easterly  boundary  line  of  a lot  of 
land  conveyed  by  said  Whipple  to  Joshua  Mather,  by  deed  dated  May 
18,  1857  ; thence  southerly  fourteen  feet  to  a stake  at  the  northeasterly 
corner  of  said  Mather  lot ; thence  southerly  by  said  Mather  lot  eighty- 
seven  feet  to  a stake  at  the  southeasterly  corner  of  said  Mather  lot ; 
thence  westerly  at  an  angle  of  218  deg.  53  min.,  fourteen  and  28-100 
feet,  to  the  point  of  beginning. 


604 


Case  of  C.  B.  Snydek. 


Also  the  right,  privilege  and  easement  to  take  water  by  means  of  the 
canal  of  the  grantor  lying  southerly  of  the  premises,  and  leading  out 
of  Concord  river,  and  by  means  of  head  raceways  to  enter  the  said 
canal  at  any  points  opposite  the  premises,  and  to  conduct  the  water  to 
the  premises  to  be  used  thereon,  the  same  to  be  done  in  such  a manner 
as  in  no  wise  to  injure  or  weaken  the  banks  of  said  canal  or  interrupt 
the  flow  of  water  therein.  Also,  the  right  for  said  water  to  enter  said 
canal  from  the  said  Concord  river  to  the  extent  hereinafter  specified, 
and  the  right  forever  hereafter  to  have  said  canal  and  the  banks 
thereof  and  the  permanent  dam  owned  by  the  grantor  across  Concord 
river  continued  for  the  purpose  of  affording  a water-power,  and  to  the 
extent  and  with  the  exceptions  and  reservations  hereinafter  contained 
and  set  forth.  The  quantity  of  water  which  may  be  drawn  from  the 
canal  by  the  grantee,  his  heirs  and  assigns,  is  strictly  limited  to  and 
shall  not  exceed  thirty-six  cubic  feet  per  second  for  eleven  and  one- 
quarter  hours  per  day  of  six  days  of  the  week.  And  if,  at  any  time, 
the  quantity  of  water  in  the  canal  shall  not  equal  two  hundred  and 
eiglity-eight  cubic  feet  per  second  during  the  time  aforesaid,  then  the 
grantee,  his  heirs  and  assigns,  shall,  during  such  time,  be  restricted  to 
one-eighth  of  the  quantity  of  water  in  the  canal.  Meaning  that  the 
quantity  of  water  which  may  be  drawn  from  the  canal  by  the  grantee, 
his  heirs  and  assigns,  shall  never,  at  any  time,  exceed  thirty-six  cubic 
feet  per  second,  for  the  above-specified  time,  however  great  may  be  the 
supply  of  water  from  the  said  canal,  and  that  the  quantity  of  water 
which  may  be  taken  by  the  grantee,  his  heirs  or  assigns,  shall  be 
restricted  to  such  an  amount  less  than  thirty-six  cubic  feet  per  second 
during  the  above-specified  time  as  shall  be  equal  to  one-eighth  of  the 
supply  afforded  from  the  canal,  whenever  the  water  in  the  canal  shall 
be  less  than  two  hundred  and  eighty-eight  cubic  feet  per  second  for 
eleven  and  one-quarter  hours  per  day  for  six  days  of  the  week. 

Also,  the  right  to  pass  with  cars  over  the  railroad  leading  from  the 
Boston  & Lowell,  and  Lowell  & Lawrence  Railroads  at  Whipple’s 
station  to  the  above-described  premises,  and  over  the  premises  of  the 
grantor  as  the  railroad  is  now  constructed,  or  as  it  may  be  constructed 
hereafter  by  the  grantee,  or  by  the  proprietors  of  the  several  rights  or 
grants  now  made,  or  which  may  be  made  by  the  grantor,  his  heirs  or 
assigns.  But  this  right  is  to  be  used  in  common  with  other  grants 
made  by  the  grantor,  or  which  may  be  made,  and  in  common  with  the 
grantor,  his  heirs  and  assigns.  Nor  shall  he  or  they  be  under  any 
obligation  to  maintain  said  railroad  or  to  extend  the  same  ; meaning  only 
to  grant  the  right  to  use  in  common  with  others  the  present  railroad 
track,  so  long  as  the  same  may  continue,  with  a right  of  rebuilding  a 
track,  and  using  and  maintaining  the  same  as  aforesaid,  and  subject  to 
the  rights  of  the  Boston  & Lowell,  Lowell  & Lawrence,  and  Salem  & 
Lowell  Railroad  Companies,  and  subject  to  such  changes  in  the  direc- 
tion or  situation  of  the  track  as  the  grantor,  his  heirs  or  assigns,  may 
reasonably  demand.  And  in  case  said  railroad  shall  be  discontinued 
the  grantee,  his  heirs  and  assigns,  shall  have,  so  long  as  the  railroad 
shall  be  discontinued,  a right  of  way  to  pass  and  repass  with  teams 
from  Lawrence  street  to  the  conveyed  premises  over  the  space  on  the 
northeasterly  side  of  the  canal,  between  said  canal  and  conveyed  lots, 
which  space  is  now  owned  by  said  Whipple,  but  so  as  not  to  obstruct 
said  space  to  the  injury  of  said  grantor,  his  heirs  and  assigns.  Also, 
the  right  to  lay  and  maintain  a railroad  track  on  the  bank  of  the  canal, 
between  the  conveyed  premises  and  the  canal,  aud  to  use  the  same  in 
common  with  the  grantor,  his  heirs  and  assigns.  Also,  a convenient 
way  not  less  than  thirty  feet  wide,  from  Lawrence  street  to  the 
premises  herein  conveyed,  to  be  located  by  said  Whipple,  and  which 
with  a bridge  of  suitable  width  and  construction  over  the  canal  is, 
including  the  bridge  to  be  made  and  maintained  by  said  Whipple,  his 


Deed. 


605 


heirs  and  assigns,  for  the  common  use  of  said  grantor  and  grantee,  and 
their  heirs  ana  assigns. 

And  said  grantor  reserves  to  himself,  his  heirs  and  assigns,  the  right 
to  lay  and  use  in  the  edge  of  the  river  outside  of  the  bank  a tail-race 
along  the  line  of  the  conveyed  premises,  but  so  as  not  to  interrupt  the 
convenient  flow  of  water  from  said  premises  into  said  river,  and  the 
said  grantee,  his  heirs  and  assigns,  shall  not  by  reason  of  abutting  on 
said  river  or  owning  said  premises,  have  the  right  to  have  the  water 
from  above  in  Concord  river  flow  in  said  river  past  said  premises,  but 
said  Whipple,  his  heirs  and  assigns,  retain  forever  the  right  to  dam 
said  river  above  said  premises,  and  to  divert  the  water  thereof  into  and 
along  his  said  canal  for  the  privilege  herein  conveyed,  and  for  other 
privileges  established  and  to  be  established.  And  the  said  grantee,  his 
heirs  and  assigns,  shall  have  the  right  to  discharge  the  water  from  the 
conveyed  premises  into  Concord  river  without  obstruction,  and  the  right 
to  construct  buildings  on  piles  or  posts  over  the  edge  of  said  river,  but 
not  to  extend  more  than  twenty-five  feet  from  said  bank  of  said  river 
and  only  along  his  said  premises,  but  so  as  not  unreasonably  to  obstruct 
the  flow  of  water  in  said  river  or  tail-race. 

And  the  grantor,  for  himself,  his  heirs  and  assigns,  covenants  with 
the  grantee,  his  heirs  and  assigns,  that  he  will  within  seven  months 
from  this  date  so  enlarge  the  said  canal  that  the  same  shall  be  of  suffi- 
cient capacity  at  all  times,  when  the  water  in  the  river  and  canal  is  as 
high  as  the  top  of  the  said  permanent  dam  in  Concord  river,  to  carry 
and  discharge  not  less  than  two  hundred  and  eighty-eight  cubic  feet 
per  second,  of  eleven  and  one-quarter  hours  per  day,  of  six  days  of  the 
week,  without  the  water  therein  at  the  head  of  the  head  raceways  of  the 
grantee  being  drawn  down  more  than  six  inches  below  the  top  of  said 
permanent  dam. 

And  the  said  Whipple,  for  himself,  his  heirs  and  assigns,  further  cov- 
enants that  he  will  forever  hereafter  keep  and  maintain  in  suitable  and 
proper  condition  and  repair  the  said  canal,  enlarged  to  the  capacity 
aforesaid,  and  the  banks  and  parts  and  appurtenances  thereof ; also  said 
permanent  dam  and  the  eight-inch  flash-boards  as  they  are  usually  kept 
thereon,  subject  to  such  reasonable  and  temporary  interruptions  and 
hindrances  as  may  be  necessary  in  such  maintenance  and  repairs. 
This  deed  is  on  the  express  reservation  to  the  grantor,  his  heirs  and 
assigns,  of  the  annual  sum  of  fifteen  dollars,  to  be  forever  hereafter 
yielded  and  paid  by  the  grantee,  his  heirs  and  assigns,  for  such  main- 
tenance and  repairs.  And  this  deed  is  also  on  the  express  condition 
that  for  affording  reasonable  facilities  for  measuring  water  taken  from 
the  canal  by  the  grantee,  his  heirs  and  assigns,  the  head  raceway  of 
the  grantee  shall  consist  in  whole  or  in  part  of  a flume  or  flumes  which 
shall  not  be  less  than  fifteen  feet  in  length,  with  the  sides  and  bottom 
smooth.  And  the  grantor,  his  heirs  and  assigns,  may  at  any  and  all 
times  hereafter  enter  upon  the  said  premises  of  the  grantee,  and  make 
such  admeasurements  as  may  be  requisite  and  proper  for  determining 
the  quantity  of  water  taken,  and  also  for  the  purpose,  from  time  to  time, 
of  repairing  the  wall  and  bank  of  the  canal. 

To  have  and  to  hold  the  said  conveyed  premises,  with  the  privileges 
and  appurtenances  to  the  same  belonging  to  the  said  Chase,  his  heirs 
and  assigns,  in  fee  simple  forever.  And  I,  the  said  Whipple,  for 
myself,  my  heirs,  executors  and  administrators,  do  covenant  with  said 
Chase,  his  heirs  and  assigns,  that  I am  lawfully  seized  in  fee  simple,  of 
the  aforegranted  premises ; that  they  are  free  from  all  encumbrances ; 
that  I have  good  right  to  sell  and  convey  the  same  to  said  Chase,  his 
heirs  and  assigns  forever,  as  aforesaid ; and  that  I will  and  my  heirs 
executors  and  administrators  shall  warrant  and  defend  the  same  to  the 
said  Chase,  his  heirs  and  assigns,  forever  against  the  lawful  claims  and 
demands  of  all  persons. 


606 


Case  of  C.  B.  Snyder. 


In  witness  whereof,  we,  the  said  Oliver  M.  Whipple  and  Sarah  K., 
his  wife,  in  token  of  her  release  of  all  claim  to  dower  and  homestead 
exemption  in  the  premises,  have  hereunto  set  our  hands  and  seals  this 
twentieth  day  of  February,  in  the  year  eighteen  hundred  and  sixty- 

OLIVER  M.  WHIPPLE, 
SARAH  K.  WHIPPLE. 

Signed,  sealed  and  delivered  in  the  presence  of 

DANIEL  S.  RICHARDSON, 
GEORGE  F.  RICHARDSON, 
MARGARET  A.  WHIPPLE. 


Three  interlineations  made  before  execution,  and  above  the  words 
“ to  the  same  belonging.” 


COMMONWEALTH  OF  MASSACHUSETTS. 


Middlesex,  ss.  February  20,  1863. 

Personally  appeared  Oliver  M.  Whipple,  and  acknowledged  the 
above  instrument  by  him  subscribed  to  be  his  free  act  and  deed. 

Before  me, 


DANIEL  S.  RICHARDSON, 

Justice  of  the  Peace. 


Know  all  men  by  these  Presents , that  I,  Ephraim  B.  Patch,  of  Lowell, 
in  the  County  of  Middlesex  and  Commonwealth  of  Massachusetts,  in 
consideration  of  five  thousand  dollars,  paid  to  me  by  Hocum  Hosford 
and  Alfred  H.  Chase,  both  of  said  Lowell,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  convey,  remise,  release  and  forever  quitclaim 
unto  the  said  Hosford  and  Chase,  their  heirs  and  assigns  forever,  a cer- 
tain piece  or  parcel  of  land,  situate  in  said  Lowell,  thus  bounded  and 
described,  viz. : beginning  at  the  northerly  corner  of  the  premises  at 
the  corner  of  a wall  at  the  junction  of  Concord  river  and  River  Meadow 
brook;  thence  southwesterly  along  the  bank  of  said  River  Meadow 
brook  to  land  sold  by  Oliver  M.  Whipple  to  Joshua  Mather ; thence 
southeasterly  along  said  Mather  land  to  land  sold  by  said  Whipple  to 
said  Chase,  and  now  belonging  to  said  Chase,  and  Hosford;  thence 
northeasterly  along  said  grantee’s  land  to  the  westerly  bank  of  Concord 
river ; thence  northwesterly  along  the  westerly  bank  of  Concord  river 
to  the  point  begun  at : containing  about  eight  thousand  feet,  more  or 
less. 

And  the  said  grantor  reserves  to  himself,  his  heirs  and  assigns,  the 
right  to  lay  and  use  in  the  edge  of  said  Concord  river  outside  of  the 
bank  a tail-race  along  the  line  of  the  conveyed  premises ; and  the  said 
grantees,  their  heirs  and  assigns,  shall  not,  by  reason  of  abutting  on 
said  river  or  owning  said  premises,  have  the  right  to  have  the  water 
from  above  in  Concord  river  flow  in  said  river  past  said  premises,  but 
said  Patch,  his  heirs  and  assigns,  retain  forever  the  right  to  dam  said 
river  above  said  premises,  and  to  divert  the  water  thereof  into  and 
along  the  canal  of  the  grantor,  for  water  privileges  now  sold  or  estab- 
lished. or  which  may  be  hereafter  sold  or  established. 

And  the  said  grantor,  his  heirs  and  assigns,  reserve  forever  the  right 
for  the  water  in  River  Meadow  brook  to  flow  in  and  through  said 
River  Meadow  brook  along  the  line  of  the  conveyed  premises  as  it  now 
flows  or  may  flow  bv  the  discharge  of  additional  water  from  said  canal ; 
and  said  grantees,  their  heirs  and  assigns,  shall  in  no  way  obstruct  the 
free  flow  of  water  in  said  brook  or  in  Concord  river. 


Deed. 


607 


Also  the  right,  privilege  and  easement  to  take  water  by  means  of  the 
canal  of  the  grantor  lying  southerly  of  the  premises  conveyed  by  Oliver 
M.  Whipple  to  Chase  by  deed  dated  the  twentieth  day  of  February,  1863, 
and  recorded  in  the  northern  district  of  Middlesex  Registry  of  Deeds, 
February  21,  1863,  book  33,  page  184,  and  leading  out  of  Concord  river, 
and  by  means  of  head  raceways  to  enter  the  said  canal  at  any  points 
opposite  the  premises  so  conveyed  by  said  Whipple  to  said  Chase, 
which  said  premises  now  belong  to  saidHosford  and  Chase,  and  to  con- 
duct the  water  to  said  premises  of  said  grantees  to  be  used  thereon,  the 
same  to  be  done  in  such  a manner  as  in  no  wise  to  injure  or  weaken 
the  banks  of  said  canal  or  interrupt  the  flow  of  water  therein,  Also,  the 
right  for  said  water  to  enter  said  canal  from  the  said  Concord  river  to 
the  extent  hereinafter  specified,  and  the  right  forever  hereafter  to  have 
said  canal  and  the  banks  thereof,  and  the  permanent  dam  owned  by  the 
grantor  across  Concord  river  continued  for  the  purpose  of  affording  a 
water-power  and  to  the  extent  and  with  the  exceptions  and  reservations 
herein  contained  and  set  forth.  The  quantity  of  water  which  may  be 
drawn  from  the  canal  by  the  grantees,  their  heirs  and  assigns,  by  vir- 
tue of  this  conveyance,  is  strictly  limited  to  and  shall  not  exceed  twelve 
cubic  feet  per  second  for  eleven  and  one  quarter  hours  per  day  of  six 
days  of  the  week.  And  if  at  any  time  the  quantity  of  water  in  the  canal 
shall  not  equal  two  hundred  and  eighty-eight  cubic  feet  per  second  dur- 
ing the  time  aforesaid,  then  the  grantees,  their  heirs  and  assigns,  shall 
during  such  time  be  restricted  to  one  twenty-fourth  of  the  quantity  of 
water  in  the  canal ; meaning  that  the  quantity  of  water  which  may  be 
drawn  from  the  canal  by  the  grantees,  their  heirs  and  assigns,  by  vir- 
tue of  this  conveyance,  shall  never  at  any  time  exceed  twelve  cubic  feet 
per  second  for  the  above-specified  time,  however  great  may  be  the  sup- 
ply of  water  from  the  said  canal,  and  that  the  quantity  of  water  which 
may  be  taken  by  the  grantees,  their  heirs  and  assigns,  by  virtue  of  this 
conveyance,  shall  be  restricted  to  such  an  amount  less  than  twelve 
cubic  feet  per  second  during  the  above-specified  time  as  shall  be  equal 
to  one  twenty-fourth  of  the  supply  afforded  from  the  canal  whenever 
the  water  in  the  canal  shall  be  less  than  two  hundred  and  eighty-eight 
cubic  feet  per  second,  for  eleven  and  one  quarter  hours  per  day,  for  six 
days  of  the  week.  The  said  grantees,  their  heirs  and  assigns,  shall 
have  the  right  to  discharge  said  water  over  their  own  premises  into 
Concord  river,  without  obstruction,  but  so  as  not  unreasonably  to 
obstruct  the  flow  of  water  in  said  river. 

And  the  grantor,  for  himself,  his  heirs  and  assigns,  covenants  with 
the  grantees,  their  heirs  and  assigns,  that  he  will,  within  seven  months 
from  this-  date,  so  enlarge  the  said  canal  that  the  same  shall  be 
of  sufficient  capacity  at  all  times,  when  the  water  in  the  river  and  canal 
is  as  high  as  the  top  of  the  said  permanent  dam  in  Concord  river,  to 
carry  and  discharge  not  less  than  two  hundred  and  eighty-eight  cubic 
feet  per  second,  of  eleven  and  one-quarter  hours  per  day,  of  six  days  of 
the  week,  without  the  water  therein  at  the  head  of  the  head  raceways 
of  the  grantees  being  drawn  down  more  than  six  inches  below  the  top 
of  said  permanent  dam. 

And  the  said  Patch,  for  himself,  his  heirs  and  assigns,  further  cove- 
nants that  he  will  forever  hereafter  keep  and  maintain  in  suitable  and 
proper  condition  and  repair  the  said  canal  enlarged  to  the  capacity 
aforesaid,  and  the  banks,  and  parts,  and  appurtenances  thereof;  also, 
said  permanent  dam  and  the  eight-inch  flash-boards  as  they  are  usually 
kept  thereon,  subject  to  such  reasonable  and  temporary  interruptions 
and  hindrances  as  may  be  necessary  in  such  maintenance  and  repairs. 
This  deed  is  on  the  express  reservation  to  the  grantor,  his  heirs  and 
assigns,  of  the  annual  sum  of  five  dollars,  to  be  forever  hereafter 
yielded  and  paid  by  the  grantees,  their  heirs  and  assigns,  for  such 
maintenance  and  repairs.  And  this  deed  is  on  the  express  condition 


608 


Case  of  C.  B.  Snyder. 


that  for  affording  reasonable  facilities  for  measuring  water  taken  from 
the  canal  by  the  grantees,  their  heirs  and  assigns,  by  virtue  of  this  con- 
veyance, the  head  raceway  of  the  grantees  shall  consist  in  whole  or  in 
part  of  a flume  or  flumes  which  shall  not  be  less  than  fifteen  feet  in 
length  with  the  sides  and  bottom  smooth.  And  said  grantor,  his  heirs 
and  assigns,  may  at  any  and  all  times  hereafter  enter  upon  said  prem- 
ises, so  sold  by  said  Whipple  to  said  Chase,  and  now  belonging 
to  said  grantees,  and  make  such  admeasurements  as  may  be  requisite 
and  proper  for  determining  the  quantity  of  water  taken. 

And  I,  Oliver  M.  Whipple,  of  said  Lowell,  at  the  request  of  said 
Patch,  and  by  reason  of  consideration  aforesaid,  do  hereby  release  and 
forever  discharge  the  above-described  premises,  but  none  other,  from  a 
certain  mortgage  given  me  by  said  Patch,  dated  the  twentieth  day  of 
March,  A.D.  1863,  and  which  covers  a piece  of  land  and  water-power 
which  include  the  above-described  premises,  and  I do  hereby  relinquish, 
convey  and  release  unto  the  said  grantees,  their  heirs  and  assigns,  all 
the  right,  title  and  interest,  which  I have  by  virtue  of  said  mortgage  in 
and  to  the  above-described  premises,  but  none,  other  so  that  the  said 
grantees,  their  heirs  and  assigns,  may  forever  hold  and  enjoy  the  above- 
described  premises  free  and  unincumbered  by  said  mortgage,  and  for 
this  purpose  and  for  this  purpose  only,  I hereby  join  in  this  deed,  my 
object  and  purpose  being  to  release  from  said  mortgage  the  above- 
described  premises  without  prejudice  to  my  rights  under  said  mortgage 
to  the  remaining  land  and  water-power  embraced  therein. 

To  have  and  to  hold  the  above-conveyed  premises  with  all  the  privi- 
leges and  appurtenances  to  the  same  belonging  to  the  said  Hosford  and 
Chase,  their  heirs  and  assigns,  to  their  use  and  behoof  forever,  and  I, 
the  said  Ephraim  B.  Patch,  for  myself  and  my  heirs,  executors  and  ad- 
ministrators, do  covenant  with  the  said  Hosford  and  Chase,  their  heirs 
and  assigns,  that  the  premises  are  free  from  all  incumbrances  made  or 
suffered  by  me,  and  that  I will,  and  my  heirs,  executors  and  adminis- 
trators shall,  warrant  and  defend  the  same  to  the  said  Hosford  and 
Chase,  their  heirs  and  assigns,  forever  against  the  lawful  claims  and 
demands  of  all  persons  claiming  by,  through  or  under  me,  but  against 
none  other. 

In  witness  whereof,  we,  the  said  Ephraim  B.  Patch  and  Oliver  M. 
Whipple,  have  hereunto  set  our  hands  and  seals  this  twenty-ninth  day 
of  February,  in  the  year  eighteen  hundred  and  sixty-four. 

E.  B.  PATCH.  TSeal.] 

OLIVER  M.  WHIPPLE.  [Seal.] 


Signed,  sealed  and  delivered  in  presence  of 

George  F.  Richardson. 

Middlesex,  ss.,  March  1st,  1864. 

Then  personally  appeared  the  above-named  E.  B.  Patch  and  Oliver 
M.  Whipple,  and  severally  acknowledged  the  foregoing  instrument  to 
be  their  free  act  and  deed. 

Before  me, 

GEORGE  F.  RICHARDSON, 

Justice  of  the  Peace. 

Mr.  Storey.  I have  also  five  separate  deeds  from  five 
distinct  parties,  from  whom  Messrs.  Hosford  and  Chase 
jointly  got  various  parcels  of  land  which  have  been  added 
to  the  laud  upon  which  this  mill  now  stands,  and  help  to 


Deed. 


609 


make  up  the  land  described  in  the  petition.  As  the  answer 
admits,  substantially,  the  ownership  of  the  land,  and  merely 
puts  in  question  our  title  to  the  water-power,  I presume  it  is 
not  necessary  to  trouble  the  Commissioners  with  any  refer- 
ence to  those  deeds  — those  little  outside  pieces  of  land. 
Then  there  is  a deed  from  Hosford  to  Chase,  conveying  his 
undivided  half,  which  is  conveyed  on  the  5th  of  March,  1866. 

Know  all  men  by  these  Presents , That  I,  Hocum  Hosford,  of 
Lowell,  in  the  County  of  Middlesex,  and  Commonwealth  of  Massa- 
chusetts, in  consideration  of  forty-seven  thousand  five  hundred 
dollars,  paid  by  Alfred  H.  Chase,  of  said  Lowell,  the  receipt 
whereof  is  hereby  acknowledged,  do  hereby  remise,  release  and 
forever  quitclaim  unto  the  said  Chase,  his  heirs  and  assigns,  my 
undivided  half  of  all  the  real  estate,  easements  and  privileges  de- 
scribed in  a deed  thereof  from  said  Chase  to  me  dated  December 
1,  1863,  and  recorded  in  Middlesex  Registry  of  Deeds,  Northern 
District,  December  29,  1863,  book  36,  page  364,  subject  to  the 
provisions,  reservations,  and  conditions  in  said  deed  contained,  in- 
tending hereby  to  reconvey  to  said  Chase  all  the  real  estate,  rights, 
privileges,  and  easements  combed  to  me  by  said  Chase  by  said 
deed,  including  my  undivided  half  of  all  the  fixtures  situate  in  or 
connected  with  the  mill  upon  the  premises.  Said  real  estate  is 
situate  in  said  Lowell,  and  for  further  description  reference  is  made 
to  said  deed  and  deeds  therein  referred  to. 

Also,  my  undivided  half  of  all  the  real  estate  situate  in  said 
Lowell,  and  of  all  the  rights,  privileges,  and  easements  (subject  to 
the  provisions  in  the  deeds  hereinafter  mentioned  contained)  which 
were  conveyed  to  the  said  Hosford  and  Chase  by  the  following 
deeds  from  the  following  persons : Deed  from  Ephraim  B.  Patch, 
dated  February  29,  A.  D.  1864,  recorded  in  said  Registry  March 
1,  1864,  book  36,  page  544.  Deed  from  Ephraim  B.  Patch,  dated 
February  10,  1865,  and  recorded  in  said  Registry,  February  11, 
1865,  book  41,  pages  7 and  8.  Deed  from  L.  W.  Faulkner,  dated 
February  29,  1864,  and  recorded  in  said  Registry,  August  13, 

1864,  book  40,  page  78.  Deed  from  Luther  Richards,  dated 
February  20,  1865,  and  recorded  in  said  Registry,  February  21, 

1865,  book  41,  page  120.  Deed  from  John  Rothwell,  dated  De- 
cember 11,  1863,  and  recorded  in  said  Registry  December  29,  1863, 
book  36,  page  329.  Deed  from  Joseph  Ball,  dated  December  9, 
1863,  and  recorded  in  said  Registry  December  9,  1863,  book  36, 
page  293.  Including  all  my  interest  in  the  machinery  on  the 
premises. 

To  have  and  to  hold  the  above-released  premises,  with  all  the 
privileges  and  appurtenances  to  the  same  belonging,  to  the  said 
Chase,  his  heirs  and  assigns,  to  his  and  their  use  and  behoof  for- 
ever. 

And  I,  the  said  Hosford,  for  myself  and  my  heirs,  executors, 
and  administrators,  do  covenant  with  the  said  Chase,  his  heirs  and 
assigns,  that  the  premises  are  free  from  all  incumbrances,  made  or 
sutfered  by  me,  except  of  certain  easements  conveyed  by  said 
Chase  and  myself  to  L.  W.  Faulkner. 


610 


Case  of  C.  B.  Snydeh. 


And  that  I will,  and  my  heirs,  executors,  and  administrators 
shall,  warrant  and  defend  the  same  to  the  said  Chase,  his  heirs 
and  assigns  forever,  against  the  lawful  claims  and  demands  of  all 
persons,  claiming  by,  through,  or  under  me,  except  as  aforesaid, 
but  against  none  other. 

In  witness  whereof,  I,  the  said  Hocum  Hosford  and  Rebecca  T., 
wife  of  said  Hosford,  in  token  of  her  release  of  all  right  and  title 
of  or  to  both  dow;er  and  homestead  in  the  granted  premises,  have 
hereunto  set  our  hands  and  seals,  this  fifth  daj^  of  March,  in  the 
year  of  our  Lord  eighteen  hundred  and  sixty-six. 

H.  HOSFORD, 

REBECCA  T.  HOSFORD. 

Signed,  sealed  and  delivered,  in  the  presence  of 

GEORGE  F.  RICHARDSON. 

Witness  to  H.  H. 

A.  G.  POLLARD. 

Witness  to  R.  T.  H. 

Middlesex,  ss.  March  12,  1866. 

Then  personally  appeared  the  within-named  Hocum  Hosford, 
and  acknowledged  the  foregoing  instrument  to  be  his  free  act  and 
deed.  Before  me, 

GEORGE  F.  RICHARDSON, 

Justice  of  the  Peace. 

Mr.  Storey.  I might,  perhaps,  explain  that  Chase,  at 
one  time,  conveyed  to  Hosford  an  undivided  half  of  the 
property  described  in  the  deed  of  Whipple  to  Chase  and 
Hosford  subsequently  re-conveyed  it  to  him,  so  that  those 
two  deeds  will  cancel  each  other.  I have  not  thought  it 
worth  while  to  allude  to  them.  But  the  deeds  which  de- 
scribe our  property,  so  far  as  the  water-rights  are  concerned, 
are  the  two  deeds  — of  Whipple  to  Chase  and  Patch  to  Hos- 
ford and  Chase.  The  deed  of  Oliver  M.  Whipple  to  Chase 
conveys  to  us,  on  the  same  terms  as  in  the  other  deeds  which 
have  been  read,  36  cubic  feet  of  water  per  second. 

Mr.  Butler.  What  is  the  consideration  ? 

Mr.  Storey.  The  consideration  is  $14,000. 

Commissioner  Russell.  That  is  Whipple  to  Chase, 
February  20.  1863? 

Mr.  Storey.  Yes,  sir. 

Commissioner  Russell.  And  $14,000  the  amount? 

Mr.  Storey.  Thirty-six  feet  of  wTater. 

Commissioner  Russell.  Perhaps  it  may  be  well  to  print 
that  deed  ; that,  and  the  next. 

Mr.  Storey.  The  next  deed,  the  deed  of  Ephraim  B. 
Patch,  is  a deed  to  Hosford  and  Chase.  In  consideration  of 


Argument  of  Storey. 


611 


$5,000,  conveys  a certain  parcel  of  land,  which  is  described, 
and  also  the  right  to  take  1 2 cubic  feet  of  water  per  second 
under  the  same  terms  and  conditions  which  are  contained  in 
the  other  deeds.  The  first  was  36  and  the  other  12, 
making  48  cubic  feet  of  water  per  second,  which  we  are 
entitled  to  draw.  Under  these  two  deeds,  we  claim  that  we 
have  the  right  to  draw  48  cubic  feet  of  water  per  second. 
Those  two  deeds  describe  the  extent  and  character  of  our 
rights  to  the  water,  and  if  it  is  desired  to  have  the  deeds 
which  make  the  chain,  they  can  be  procured.  ? 

Mr.  Butler.  I do,  because  there  has  been  so  much  con- 
veyancing back  and  forth,  I want  to  see  who  has  got  the 
title. 

Mr.  Storey.  Well,  there  are  deeds  referred  to  ; I have 
not  got  a copy  of  it,  but  there  is  a deed  from  Chase  to 
Hosford  of  an  undivided  half  of  the  property  described  in  the 
first  deed.  Then,  there  is  a reconveyance  back  to  him  ; I 
have  got  the  reconveyance,  but  not  the  original  conveyance. 
Hosford,  in  his  reconveyance  to  Chase,  says  that  he  conveys 
to  Chase  " my  undivided  half  of  all  the  real  estate,  easements 
and  privileges  described  in  a deed  thereof  from  said  Chase 
to  me,  dated  December  1,  1863,  and  recorded  in  Middlesex 
Registry  of  Deeds,  Northern  District,  December  29,  1863, 
B.  36,  page  364,  subject  to  the  provisions,  reservations,  and 
conditions  in  said  deed  contained,  intending  hereby  to  re- 
convey to  said  Chase  all  the  real  estate,  rights,  privileges 
and  easements  conveyed  to  me  by  said  Chase  by  said  deed, 
including  my  undivided  half  of  all  the  fixtures  situate  on  or 
connected  with  the  mill  upon  the  premises.  Said  real  estate 
is  situate  in  said  Lowell,  and  for  further  description,  reference 
is  made  to  said  deed  and  deeds  therein  referred  to.  Also, 
my  undivided  half  of  all  the  real  estate  situate  in  said  Lowell, 
and  of  all  the  rights,  privileges,  and  easements  (subject  to 
the  provisions  in  the  deeds  hereinafter  mentioned  contained) 
which  were  conveyed  to  the  said  Hosford  and  Chase.”  Now, 
it  is  necessary,  in  order  to  show  precisely  what  this  con- 
veyance applied  to,  to  have  a copy  of  the  deed  from  Chase  to 
Hosford. 

Mr.  Butler.  Will  you  get  that? 

Mr.  Storey.  Yes,  I will  get  it. 

Commissioner  Russell.  Do  you  care  to  have  those 
printed,  General? 

Mr.  Storey.  In  order  to  get  at  precisely  what  the  deeds 
of  Chase  to  Coe  and  Coe  to  Snyder  cover,  it  is  necessary  to 
have  those  deeds  all  printed.  The  description  of  the  water- 
power is  contained  in  the  two  deeds  of  Whipple  to  Chase 
and  Patch  to  Chase  and  Hosford.  I don’t  care  anything 


612 


Case  of  C.  B.  Snyder. 


about  the  outside  land.  If  I put  in  those  two  deeds,  and 
those  of  Hosford  to  Chase,  and  Chase  to  Coe,  and  Coe  to 
Snyder,  will  that  do  ? 

Mr.  Butler.  I think  those  will  do. 

Mr.  Storey.  The  mill  which  is  erected  on  this  property 
is  a mill  that  was  established  for  the  manufacture  of  cloths, 
tailor’s  cloths,  cassimeres,  and  other  goods  of  that  sort.  I 
understand  that  the  machinery  which  is  used  for  the  manu- 
facture of  those  goods  requires  more  power  than  the 
machinery  which  is  used  for  the  manufacture  of  flannels ; 
there  are  other  machines  necessary  to  complete  the  process, 
which  require  a good  deal  of  power.  There  are,  of  such 
machinery,  ten  sets  in  the  mill  now. 

The  mill  was  originally  built  so  that  it  could  accommodate 
fourteen  sets,  and  fifteen,  by  crowding.  The  additional  sets 
have  never  been  put  in.  Business  has  never  been  such  as 
to  warrant  it.  These  deeds  and  the  description  of  the 
property  show  exactly  what  our  rights  are.  We  are  affected 
by  the  taking  precisely  as  the  other  parties  on  the  same 
dam  are  affected,  and  very  much  of  the  same  evidence  will 
apply  to  every  case.  We  expect  to  show  that,  while  we 
have  the  right  to  take  forty-eight  cubic  feet  of  water  a 
second,  whenever  the  water  in  the  river  furnishes  288  cubic 
feet  a second'  or  more,  for  a very  considerable  portion  of 
the  year,  we  need  the  water  derived  from  the  Sudbury 
river  to  make  up  the  number  of  cubic  feet  per  second 
which  we  are  entitled  to ; that  by  the  diversion  of  the 
water  of  the  Sudbury  river  we  lose  a certain  proportion 
of  the  power  which  we  are  entitled  to  under  our  deeds, 
and  which  is  necessary  to  run  our  mill,  and  we  shall  ask 
you  to  say  what  the  value  of  that  power  is  as  the  meas- 
ure of  our  damages.  And  we  shall  ask  you  to  measure 
the  extent  of  our  damages  by  what  it  will  cost  us  to 
replace  it,  in  other  words,  by  the  cost  per  horse-power  of 
the  steam  which  we  should  be  obliged  to  manufacture  and 
use  to  take  the  place  of  the  power  which  is  taken.  The  evi- 
dence will  show  in  regard  to  that,  I suppose.  It  is  not  neces- 
sary to  state  here  precisely  the  evidence,  how  much  water  we 
have,  nor  how  much  water  we  lose. 

Mr.  Shattuck.  I would  like  to  state  one  thing.  It  was 
stated  at  the  view,  inadvertently  no  doubt,  but  it  may  be 
material,  it  was  stated  there  that  the  City  of  Boston  pur- 
chased the  surplus  water.  I think  they  have  no  interest  in 
the  surplus. 


Testimony  of  Joseph  B.  Frizell. 


613 


TESTIMONY  OF  JOSEPH  B.  FRIZELL. 

Joseph  B.  Frizell  sworn  for  the  petitioners  (in  the  Wilder  case). 

Q.  (By  Mr.  Shattuck.)  What  is  y our  business  ? 

A.  I am  a civil  engineer. 

Q.  How  long  have  you  been  so. 

A.  About  twenty  years. 

Q.  To  what  branch  of  engineering  have  }’ou  been  devoted  ? 

A.  Mostly  to  hydraulic  engineering,  dealing  with  water  in  one 
way  and  another. 

Q.  What  is  the  surface  from  which  evaporation  takes  place 
above  the  Talbot  dam,  below  the  junction  of  the  Sudbury  river? 

A.  I find  the  area  of  meadows  and  water  surface  together,  4,685 
acres ; that  is,  between  the  dam  at  Middlesex  and  the  dam  at 
Saxonville. 

Q.  What  do  you  estimate  the  evaporation  per  day,  and  using 
the  four  months  from  the  first  of  May  to  the  first  of  September  ? 

A.  It  is  thought  by  civil  engineers,  it  appears  very  reasonable, 
that  the  evaporation  from  a meadow  or  marsh  is  about  the  same  as 
from  water  surface ; taking  that,  and  the  experiments  that  have 
been  made  on  evaporation,  we  find  it  to  be  about  41  cubic  feet  per 
second,  on  that  surface,  during  the  months  of  Ma}r,  June,  Juty  and 
August. 

Commissioner  Russell.  The  evaporation  from  May  1st  to  Sep- 
tember 1st,  is  about  40  cubic  feet  per  second,  on  this  amount  of 
surface  ? 

A.  Yes,  sir. 

Q.  That  does  not  include  the  part  between  the  Talbot  dam  and 
the  Wamesit. 

A.  No,  sir. 

Q.  The  area  that  you  refer  to  is  between  the  Saxonville  dam  to 
the  Talbot  dam  ? 

A.  Yes,  sir. 

Q.  And  does  not  include  the  part  below  the  Talbot  dam  ? 

A.  No,  sir. 

Commissioner  Russell.  Does  not  include  the  water  from  the 
Wamesit  dam  to  the  Talbot  dam? 

Q.  Have  you  examined  the  Concord  river  at  the  Middlesex 
dam? 

A.  Yes,  sir : I have  viewed  the  condition  of  things  there. 

Q.  How  much  water  is  called  for  by  the  wheels  of  the  Middle- 
sex mill ; have  you  made  an  examination  of  that? 

A.  I assisted  in  a computation  of  measurements  intended  to 
ascertain  that  quantity,  the  quantity  called  for  by  the  existing 
deeds  on  the  Middlesex  mills  ? 

Q.  Yes,  used. 

A.  Drawn  from  the  Concord  river. 

Q.  Drawn  from  the  Concord  river? 

A.  It  would  not  exceed  167  or  168  cubic  feet  per  second. 

Q.  What  is  the  amount  of  water  called  for  by  the  Belvidere  mill, 
the  Stott  mill  which  takes  the  water  from  the  same  dam  ? 


614 


Testimony  of  Joseph  B.  Frizell. 


A.  They  have  a wheel  there  capable  of  discharging  about  80 
cubic  feet  per  second. 

Q.  A wheel  capable  of  discharging  80  cubic  feet  per  second. 
What  is  the  effective  power  used? 

A.  I find  by  comparison  on  trials  of  machinery  of  the  same 
character  at  other  places,  the  machinery  of  that  mill  would  call  for 
about  46  horse-power. 

Q.  Now  how  many  feet  per  second,  whether  or  not  about 
sixty  ? 

A.  It  would  call  for  about  sixty  cubic  feet  per  second. 

Q.  Do  }Tou  know  whether  there  are  any  other  mills  ? 

A.  The  fall  is  nine  feet  in  the  winter,  it  is  eleven  feet  in  the 
summer,  approximately,  I should  say. 

Mr.  Butler.  You  have  not  measured  it. 

The  Witness.  I have  not  measured  the  fall  in  the  winter. 

Mr.  Butler.  Please  only  state  what  }tou  know  of  your  own 
measurement. 

Mr.  Shattuck.  Certainty,  from  your  own  measurement  and  in- 
vestigation. You  know  what  the  flash-board  is  and  what  the  fall 
is.  Are  there  an}T  other  mills  to  your  knowledge  using  the  water 
over  that  dam  ? 

The  Witness.  The  Middlesex  dam. 

Q.  Yes? 

A.  I understand  there  are. 

Q.  Have  you  any  personal  knowledge? 

A.  No  personal  knowledge,  except  inspection  of  the  arrange- 
ments for  drawing  water.  I don’t  know  but  other  mills  may  be 
using  water. 

Q.  Have  you  any  knowledge  as  to  how  much  ? 

A.  No,  sir  ; I have  not. 

Q.  You  don’t  know  whether  they  are  using  an}^  now? 

A.  No,  sir. 

Q.  And  what  quantity  runs  over  the  Middlesex  dam,  compared 
with  the  water  that  is  running  over  the  Wamesit  dam? 

A.  The  water  running  over  the  Wamesit  dam,  when  the  mills  are 
running,  is  that  the  question  ? 

Q.  Yes,  when  the  mills  are  running  generally.  When  I say  over 
the  Wamesit  dam  I mean,  the  flow  of  the  river. 

A.  It  would  only  differ  b}T  the  flow  of  Hale’s  brook. 

Q.  What  is  the  flow  of  Hale’s  brook  in  summer? 

A.  It  fluctuates  very  much ; the  minimum  is  not  over  four  cubic 
feet  per  second. 

Q.  What  is  the  water-shed? 

A.  Of  Hale’s  brook?  It  is  about  twenty-four  square  miles,  as 
I make  it  out  by  the  State  map. 

Q.  Have  jrou  measured  the  water  in  the  Concord  river? 

A.  Yes,  sir. 

Q.  From  what  time  to  what  time  ? 

A.  I measured  the  water  from  the  24th  day  of  August  to  the 
25th  day  of  September  last. 

Q.  Will  3rou  state  what  the  minimum  supply  averaged  for  the 
twenty-four  hours. 


Testimony  of  Joseph  B*  Frizell* 


615 


A.  The  minimum  during  the  working-day,  — the  least  flow  of 
the  river  during  any  working-day  of  twenty-four  hours,  that  is,  the 
minimum  average  for  the  whole  twenty -four  hours  of  any  working- 
aay,  was  ninety-nine  cubic  feet  per  second. 

Q.  (By  Commissioner  Russell.)  That  is  for  the  whole  twenty- 
four  hours  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Shattuck.)  What  was  the  least  average  for  a 
working  day  of  eleven  hours  and  a quarter? 

A.  Do  you  mean  the  average  of  all  the  water  that  flows  in  the 
river  ? 

Mr.  Butler.  They  don’t  work  so  up  there. 

The  Witness.  I know  they  don’t  work  so  because  they  run 
nights. 

Mr.  Butler.  They  cannot  run  but  11£  hours  a day  under  the 
contract. 

Q.  Well,  you  ma}7  state  (of  course  that  fact  comes  in  for  what 
it  is  worth),  during  the  working  hours,  what  is  the  average. 

Mr.  Butler.  1 don’t  get  that  question  exactly,  Mr.  Shattuck. 

Q.  How  often  did  }7ou  measure  the  water  ? 

A.  About  once  in  forty  minutes. 

Q.  Now,  I want  to  know  the  least  average  per  working-day 
when  the  mills  were  running  as  much  as  they  were  running. 

A.  The  smallest  quantity  of  water  flowing  while  the  mills  were 
running,  that  is,  the  average  for  a day, — the  average  from  the  time 
when  the  mills  start  in  the  morning  until  they  stop  at  night,  was 
139f  cubic  feet  per  second. 

Q.  (By  Commissioner  Russell.)  That  is  the  minimum? 

A.  Yes,  sir ; that  is  the  minimum  during  that  period.  1 beg 
pardon  ; there  was  one  smaller  than  that,  135^. 

Q.  (By  Mr.  Butler.)  What  day  was  that,  sir? 

A.  Saturday,  the  16th  day  of  September. 

Q.  Give  the  smallest  quantity  that  you  measured  at  any  one 
time  during  the  working  hours. 

A.  It  would  take  a good  while  to  be  sure  that  it  was  the  smallest 
quantity. 

Q.  Well,  give  about  the  smallest  quantity  ; take  the  smallest 
one  that  day. 

A.  I had  it  as  low  as  105  cubic  feet  per  second  that  day,  Satur- 
day, the  16th  day  of  September. 


AFTERNOON  SESSION. 

Direct  examination  of  J.  P.  Frizell.  — Continued. 

Q.  (By  Mr.  Shattuck.)  You  have  given  the  minimum  flow 
during  the  working  hours  of  a day  as  105  cubic  feet  per  second. 
Was  there  any  lower  than  that? 

A.  I have  one  on  that  same  day  lower  than  that,  at  seven 
' o’clock  in  the  morning ; but  I think  that  is  about  as  low  as  we 
should  find  after  the  mills  had  got  fairly  running. 

Q.  I suppose  there  are  times  when  there  is  nothing  running? 


616  " 


Testimony  of  Joseph  B.  Frizell. 


A.  There  is  no  time  when  there  is  not  something  running. 

Q.  What  is  the  lowest? 

A.  I found  it  as  low  as  twenty-five  cubic  feet  per  second.  That 
was  the  average  for  the  whole  day,  — Sunday,  — the  twentyxfour 
hours. 

Q.  What  was  the  average  flow  during  the  month,  during  the 
working  day,  and  during  the  twenty-four  hours,  from  the  24th  of 
August  to  the  25th  of  September  ? 

A.  Counting  the  entire  thirty-one  days  during  which  the  meas- 
urements were  made,  the  average,  including  Sundays,  was  128.3 
cubic  feet  per  second. 

Q.  That  was  for  the  whole  twenty-four  hours? 

A.  Yes,  sir. 

Q.  Now,  what  was  the  average  during  the  working  hours  for 
that  period  ? 

A.  The  average  was  210.7  cubic  feet  per  second. 

Q.  What  was  the  rainfall  during  that  period,  and  just  before  it, 
as  far  as  you  can  tell  ? 

A.  There  had  been  no  heavy  rain  since  the  31st  day  of  July. 

Q.  Was  the  effect  of  that  perceptible  when  you  began  to 
measure  ? 

A.  Bjt  the  gauge  at  Lowell,  there  had  been  no  heavy  rainfall 
since  the  30th  day  of  July.  On  the  31st  the  rain  occurred  at 
Lowell. 

Q.  How  much  was  the  rain-fall  then? 

A.  The  rain-fall  recorded  at  Lowell  on  the  31st  of  July  was 
3.62  inches. 

Q.  How  had  the  latter  part  of  July  been,  — very  wet  or  other- 
wise? 

A.  On  the  23d  of  July  there  was  a rain-fall  of  1.28  inches. 
There  was  a large  quantity  of  rain-fall  in  Juty. 

Q.  How  much? 

A.  About  seven  inches,  by  the  Lowell  guage.  The  gauge  at 
Lake  Cochituate  showed  a fall  of  4.38  inches  on  the  31st  day  of 
July. 

Q.  How  much  fell  during  the  month  of  Juty  at  Lake  Cochituate? 

A.  It  is  not  carried  out  here.  I can  tell  }rou  approximately.  By 
the  gauge  at  Lake  Cochituate,  there  was  something  over  nine  inches 
during  the  month  of  July.  There  was  a rain-fall  recorded  at  Lake 
Cochituate  of  1.52  inches  on  the  18th  of  August.  That  is  the  only 
heavy  rain.  There  was  only  one  other  rain  recorded  in  August  at 
Lake  Cochituate.  That  was  on  the  8th,  which  was  three-tenths  of 
an  inch.  There  was  also  a rain-fall  recorded  at  South  Framingham 
of  1.23  inches  on  the  17th  of  August.  The  month  of  August,  by 
all  the  records,  was  a month  of  exceptional^  low  rain-fall. 

Q.  How  does  the  month  of  Juty  compare  with  the  average? 

A.  The  month  of  Juty  was  a good  deal  above  the  average. 

Q.  Now,  you  may  give  the  rain-falls  during  the  time  }tou  were 
measuring  the  water. 

A.  The  principal  rain-fall  that  occurred  while  we  were  measur- 
ing was  about  the  18th  of  September. 

Q.  How  much  was  that  at  Lowell,  and  how  much  at  Lake  Co- 
chituate ? 


Testimony  of  Joseph  B.  Frizell. 


617 


A.  That  is  recorded  as  2.72  inches  at  Lowell,  the  19th;  2.4, 
the  18th,  at  Lake  Cochituate. 

Q.  What  effect  did  that  have  on  the  water  ? 

A.  The  flow  of  the  river  increased  directly  after  this  rain-fall. 

Q.  Will  you  state  the  average  during  the  working-days  for  suc- 
cessive days  after  the  rain  ? 

A.  The  average  flow  on  the  18th  day  of  September  was  158.9 
cubic  feet  per  second, — the  average  flow  for  the  whole  twenty-four 
hours.  That  was  the  day  the  rain  occurred  in  the  district  that 
would  affect  the  flow  of  the  river. 

Q.  How  much  was  it  the  day  before? 

A.  The  preceeding  day  was  Sunday,  when  we  had  only  25.7. 

Q.  The  preceding  Saturday,  how  much  ? 

A.  The  preceding  Saturday  we  had  ninety-nine  cubic  feet  and 
a fraction,  on  the  average. 

Q.  There  is  always  a larger  flow  on  Monday,  whether  you  have 
rain  or  not,  is  there  not?  You  have  found  it  so,  haven’t  you? 

A.  Yes,  sir,  — that  increase  on  Monday  might  have  been  due  to 
causes  independent  of  the  rain-fall,  in  a considerable  measure.  On 
Tuesday  there  was  201  cubic  feet  per  second.  On  Wednesday 
there  was  205.9.  On  Thursday,  194.4.  On  Friday,  202.  On 
Saturday,  174.5.  On  the  next  Monday  there  was  205.4.  That 
was  the  last  day  of  the  measurements.  The  measurement  on  that 
day  did  not  include  the  entire  day. 

Q.  Now,  let  me  ask  you  if  you  ever  measured  the  water  when 
the  flow  was  maintained  steadily  above  the  stone  dam,  but  below 
the  top  of  the  flash-boards,  — maintained  steadily,  with  a slight 
reduction  ? 

A.  On  the  19th  of  September,  between  ten  o’clock  in  the  fore- 
noon and  four  in  the  afternoon,  it  was  in  that  condition. 

Q.  State  what  condition  it  was  in. 

A.  The  water  was  about  one  inch  below  the  top  of  the  flash- 
boards,  whatever  they  are. 

Q.  In  drawing,  state  whether  they  diminish  the  height  or  not. 

A.  The  water  fell  twenty-one  one-hundredths  of  a foot,  accord- 
ing to  the  observations,  from  ten  o’clock  until  five. 

Q.  How  much  were  they  drawing  at  that  time  ? 

A.  September  19th,  at  ten  o’clock,  there  was  297  cubic  feet  per 
second  running. 

Q.  Give  it  from  hour  to  hour. 

A.  At  10.40  o’clock  it  was  289  cubic  feet  per  second.  I omit 
the  fractions.  At  11.20  there  was  277  cubic  feet ; and  at  12  there 
was  292.  From  12  to  2 the  quantity  will  be  affected  by  the  stop- 
ping of  the  mills.  At  2 o’clock  there  was  286  cubic  feet  of  water 
per  second  passing  the  Wamesit  dam.  At  2.40  there  was  292.  At 
3.20,  302.  At  4 o’clock,  295. 

Q.  And  it  had  gone  down  in  the  meantime  three  one-hundredths 
of  a foot,  as  I understand  it? 

A.  Yes,  sir.  The  water  fell  three  one-hundredths  of  a foot, 
from  3.45  to  4.45. 

Q.  Have  you  ever  observed  the  amount  flowing  in  the  canal 
when  it  was  the  exact  height  of  the  main  stone  dam,  without  the 
flash-boards  ? 


618 


Testimony  of  Joseph  B.  Frizell. 

A.  I believe  this  dam  has  a wooden  cap.  The  cap  of  the  dam, 
I take  it,  is  what  is  meant. 

Q.  If  you  have  or  have  not,  will  you  state? 

A.  Not  when  it  was  exactly  at  that  point,  I think. 

Q.  Are  you  able  to  form  any  judgment  as  to  about  how  much 
would  flow  when  the  water  is  on  a level  with  the  cap  of  the  dam, 
and  is  drawing  so  as  to  take  the  full  amount  supposed  ? 

A.  I don’t  think  I could  tell  just  how  much  the  canal  is  capable 
of  carrying.  The  record  shows,  I think,  that  it  is  capable  of 
carrying  nearly  300  cubic  feet  per  second,  without  an  unreasonable 
loss  of  head. 

Q.  What  was  the  loss  of  head  at  the  time  you  took  these 
measurements  that  you  have  last  given?  I mean,  what  was  the 
difference  in  the  height  of  water  between  the  place  where  it  goes 
into  the  canal  and  the  race-way  the  other  way? 

A.  On  that  day,  September  19th,  at  twenty  minutes  past  ten, 
the  water  at  the  Wamesit  dam  stood  at  the  height  of  43.66  b}r  the 
locks  and  canals  scale,  and  at  10.38  the  water  opposite  Mr. 
Wood’s  mill  stood  at  the  height  of  42.98.  There  was  a fall  of 
of  a foot  in  that  distance. 

Q.  Is  there  any  other  observation  made  by  you  that  bears  on 
the  question  of  the  water  flowing  in  the  river,  except  what  you 
have  stated? 

A.  I presume  there  are  a good  manjr. 

Q.  I mean,  any  other  observation  of  yonrs  that  you  have  here? 

A.  I suppose  the  lawyers  know  better  than  I do  what  bears  upon 
the  case. 

Q.  I will  ask  }tou  the  question  in  another  form.  From  your  ob- 
servation and  knowledge  of  the  flow  of  Concord  river,  at  the 
Wamesit  dam,  what  in  your  judgment,  was  the  available  flow,  be- 
fore the  taking  for  mill  purposes,  such  as  a prudent  mill-owner 
would  have  provided  machinery  for. 

A.  That  depends  upon  whether  he  proposes  to  run  his  machinery 
during  the  day,  or  both  day  and  night. 

Q.  To  run  by  day,  as  the  water  was  used.  That  is  what  I 
mean. 

A.  You  couldn’t  depend  upon  drawing,  during  the  dajTime,  more 
than  220  cubic  feet  per  second,  during  the  working  hours  of  the 
day,  in  the  present  condition  of  things. 

Q.  I mean,  before  Sudbury  river  was  taken? 

A.  I mean,  before  Sudbury  river  was  taken  ; but  assuming  that 
people  draw  water  at  night,  as  they  do  now. 

Q.  (By  Mr.  Storey.)  That  is,  during  the  whole  year,  you 
mean? 

A.  That  is  about  what  you  could  rety  upon. 

Q.  (B}’  Mr.  Shattuck.)  For  what  time  should  you  say  you 
could  rely  upon  it? 

A.  Well,  there  might  be  perhaps  three  times  in  a year  that  you 
would  be  scant  of  water  for  several  da}'s  at  a time. 

Q.  You  consider  that  the  power  that  could  be  counted  on  with 
reasonable  expectation  ? 

A.  Yes,  I think  a man  might  make  calculations  upon  that. 


Testimony  of  Joseph  B.  Frizell. 


619 


Q.  Will  you  give  your  reasons,  if  you  have  any,  for  that  judg- 
ment? State  whatever  influences  your  mind. 

A.  Well,  by  comparing  the  rain-fall  during  the  period  of  our 
measurements  with  the  records  of  rain-falls  in  past  years. 

Q.  Any  other? 

A.  That  is  the  chief  consideration  that  I proceed  upon. 

Q.  What  is  your  opinion  as  to  the  amount  of  flow  in  the  canal 
when  the  flash-boards  are  off,  without  drawing  down  the  head  more 
than  six  or  eight  inches,  as  you  did  on  that  occasion? 

A.  The  amount  cf  water  that  the  canal  will  carry. 

Q.  You  have  stated  that  on  one  day,  when  it  was  within  about 
an  inch  of  the  top  of  the  flash-boards,  there  was  a certain  amount 
of  water  running  for  several  hours,  and  it  drew  it  down  on  the 
flash-boards  a certain  part  of  a foot — three  one-hundredths  of  a foot, 
I believe  — and  that  at  the  time  you  observed  there  was  a loss  of 
head  of  sixty-eight  one-hundredths  between  Wamesit  dam  and 
Wood’s  mill.  Now,  I want  to  know  how  much,  in  your  judgment, 
the  canal  would  carry  with  that  loss  of  head,  if  it  was  full  to  the 
top  of  the  flash-boards  ? 

A.  It  was  very  near  the  top  of  the  flash-boards  then. 

Q.  If  that  was  substantially  the  amount,  say  so. 

A.  That  was  exactly  the  amount  that  the  canal  could  cany 
with  that  loss  of  head. 

Q.  Whether  bringing  it  up  that  additional  inch  would  have 
made  any  substantial  difference,  in  your  judgment?  If  it  had 
been,  I mean,  to  the  top  of  the  flash-boards. 

A.  I think  it  was  above  the  top  of  the  flash-boards  at  that 
time. 

Q.  Did  it  during  that  day,  at  any  time,  go  above  the  top  of 
the  flash-boards? 

A.  The  time  that  I referred  to  as  establishing  a loss  of  head, 
at  that  time  the  water  was  above  the  top  of  the  flash-boards.  I 
think  I have  stated  the  time  wrong  when  I said  the  water  fell 
three  one-hundredths  of  a foot.  It  varied  that  day  eleven  one- 
hundredths  of  a foot  between  10.20  and  4.45.  (Correctly  twent}T- 
one  one-hundredths.) 

Q.  During  that  period,  was  it  at  any  time  running  over  the 
flash-boards  ? 

A.  It  was  running  over  the  flash-boards  at  10.20. 

Q.  Now,  what  was  the  quantity  of  water  running  at  that  time, 
when  it  was  running  over  the  flash-boards  ? 

A.  The  quantity  at  ten  o’clock  in  the  forenoon,  September  19, 
was  297  cubic  feet  per  second.  That  includes  what  was  running 
over  the  flash-boards. 

Q.  (By  Commissioner  Stevens.)  And  Hale’s  brook,  too? 

A.  No,  sir.  That  does  not  include  Hale’s  brook. 

Q.  (By  Commissioner  Russell.)  Where  did  you  measure? 

A.  I measured  the  water  at  Massic  dam,  and  I deducted  the 
flow  of  Hale’s  brook. 

Q.  (By  Mr.  Richardson.)  Why  do  you  say  that  there  would 
be  220  cubic  feet  during  the  day,  when  your  observations  on  the 
19th  show  more  than  that? 


620 


Testimony  of  Joseph  B.  Frizell. 


A.  On  the  19th,  the  river  was  swollen  by  the  rain  of  the  18th,  it 
was  above  what  could  be  expected  on  an  average. 

Q.  (B}r  Mr.  Shattuck.)  And  some  part  of  the  time  it  went 
below  what  you  would  expect  might  be  depended  upon  ? 

A.  Yes,  sir. 

Q.  Have  you  examined  the  machinery  of  the  Sterling  mill  ? 

A.  Yes,  sir  ; I have  inspected  it. 

Q.  Have  you  also  measured  the  fall  of  the  water? 

A.  It  varies  considerable,  according  to  the  condition  of  the  river. 
The  average  would  probably  be  something  like  23J  feet. 

Q.  Taking  thirty-six  feet  per  second  of  water,  wrhat  amount  of 
effective  power  would  that  give,  such  as  would  act  upon  the  ma- 
chinery, taking  the  wheel  as  it  is  there  ? 

A.  It  ought  to  give  72  horse-power,  with  an  ordinary  good 
wheel ; and  I presume  it  would  give  that  with  the  wheel  they  have 
there. 

Q.  Take  the  Belvidere  mill,  sometimes  called  “ Belvidere 
No.  2,”  above  there  on  the  Wamesit  dam.  Have  yon  measured 
the  fall  there  ? 

A.  Not  exactly  at  that  place  ; but  I have  at  another  place  that 
will  apply  to  that  very  well.  I cannot  give  the  average  fall  very 
accurately ; it  would  be  between  twent}r-three  and  twenty-four 
feet. 

Q.  With  twenty-seven  feet  of  water  per  second,  how  much 
effective  mill-power  would  you  have  there,  with  a wheel  of  ordinary 
good  construction? 

A.  I don’t  know  what  power  the  wheel  they  have  there  would 
devolop ; but  you  ought  to  have  about  two  horse-power  for  every 
cubic  foot  of  water. 

Q.  That  would  be  about  fifty-four  horse-power? 

A.  Yes,  sir. 

Q.  Have  you  examined  the  machinery  in  the  Belvidere  mill 
No.  2? 

A.  Yes,  sir. 

Q.  How  many  horse-power  does  that  call  for? 

A.  That  would  call  for  about  53^-  horse-power  to  drive  the  mill. 

Q.  How  many  sets  of  machiner}-  are  there  ? 

A.  There  are  eight  sets  of  cards. 

Q.  Did  you  examine  the  machinery  in  the  Sterling  mill? 

A.  Yes,  sir. 

Q.  How  many  sets  are  there  there  ? 

A.  Seven  sets  of  cards  there. 

Q.  How  much  power? 

A.  I make  the  power  there  fifty-three  horse-power. 

Q.  Why  do  you  make  more  per  set  there? 

A.  They  have  about  the  same  machinery  that  consumes  power  ; 
the  swift-running  machinery  that  consumes  the  principal  part  of  the 
power ; the  fans  and  centrifugal  dryers.  There  is  one  set  less 
cards ; but  cards  do  not  consume  much  power  as  compared  with 
other  machinery. 

Q.  Now,  I should  like  to  ask  }'ou,  assuming  that  mill-power  to 
be  reduced  from  one-fifth  to  one-fourth,  what  it  would  cost  to  make 
that  by  steam  ? I mean,  how  much  per  horse-power  ? 


Testimony  of  Joseph  B.  Frizell. 


621 


A.  I think  yon  ought  to  allow,  for  so  small  an  amount  of  steam- 
power  as  wrould  be  required  there,  as  much  as  $150  a horse- 
power. 

Q.  How  do  you  fix  it?  What  are  your  reasons  for  fixing  it  at 
$150  per  horse-power? 

A.  Well,  the  prices  that  are  paid  for  steam-power  in  small  quan- 
tities. 

Q.  What  are  they? 

A.  $175  and  $200  are  the  common  prices  in  Boston. 

Q.  For  how  much? 

A.  The  Sears’  estate,  I understand,  lets  steam-power.  Their 
terms  are  $175  per  annum  for  quantities  exceeding  five  horse- 
power, and  $200  per  annum  for  quantities  less  than  five  horse- 
power. 

Q.  Suppose  you  increase  the  deficiency  to  be  made  good  up  to 
thirty  and  forty  horse-power,  how  much  should  you  allow  them  ? 
Assuming  a deficiency  of  thirty  or  forty  horse-power,  would  that 
be  worth  less  than  $150,  or  more? 

A.  Assuming  that  it  would  be  required  all  the  year,  or  only 
part  of  the  year. 

Q.  Say  nin°  months  in  the  year? 

A.  Assuming  a quantity ’as  large  as  thirty  horse-power,  required 
during  the  whole  year,  to  be  paid  for  pro  rata , I should  say  that 
$125  per  horse-power  would  be  a fair  price. 

Q.  And  if  you  went  up  to  one  hundred  horse-power,  what  would 
it  be  worth  ? 

A.  I should  not  put  it  higher  than  $100  a horse-power  in  that 
case. 

Q.  If  there  is  a loss  in  those  mills,  do  you  know  of  any  other 
way  of  snpplying  it  except  by  steam-power  ? Wouldn’t  that  be  a 
judicious  and  proper  way  ? 

A.  It  would  be  the  ordinary  way  adopted  in  this  country. 
There  are  other  ways  in  which  it  might  be  done,  by  constructing 
reservoirs  on  the  stream. 

Q.  (By  Mr.  Storey.)  What  is  the  fall  of  the  Chase  mill? 

A.  It  is  not  much  different  from  the  falls  I have  given  — a little 
greater.  I have  found  it  as  low  22J  feet  and  as  high  as  24J  feet. 

Q.  Were  both  measurements  made  when  the  mills  were  runn- 
ing? 

A.  I can’t  say  that  this  particular  mill  was  running  at  the  time. 
It  was  during  the  time  that  the  mills  would  ordinarily  be  running. 

Q.  Take  the  ordinary  condition  during  the  larger  part  of  the 
year.  What  should  you  say  the  average  fall  at  the  Chase  mill 
would  be  ? 

Mr.  Butler.  I do  not  understand  that  there  is  any  average  fall, 
except  from  back  water.  There  may  be  an  average  when  the  head 
is  drawn  down ; but  if  there  is  a drawing  down  of  the  canal,  it 
does  not  affect  the  Chase  mill  as  much  as  it  does  some  others.  I 
understand  that  it  may  differ  from  drawdng  down  ; but  I supposed, 
up  to  now,  that  when  there  was  enough  to  fill  the  canal  completely, 
it  would  be  the  same  height. 

A.  Suppose  the  canal  to  be  full  up  to  the  top  of  the  flash-boards, 
it  would  have  a fall  of  twenty-five  feet  and  about  four  inches. 


622 


'Testimony  of  Joseph  B.  Frizell. 


Q.  Then,  of  course,  if  it  only  came  to  the  top  of  the  dam,  it 
would  be  eight  inches  less  if  the  flash-boards  are  eight  inches  in 
height  ? 

A.  Yes,  sir;  that  is,  assuming  the  water  at  Chase’s  mill  to  be 
at  the  height  of  the  flash-boards. 

Q.  When  you  found  it  as  low  as  22J  feet,  that  was  when  there 
was  an  extremely  small  quantity  of  water  there?  That  was  the 
lowest  point  you  found  ? 

A.  It  was. 

Correction.  — The  fall  at  Chase’s  mill  was  found  as  low  as 
21.89  and  as  high  as  24.97. 

Q.  (By  Mr.  Richardson.)  Will  you  give  the  fall  at  Faulkner’s, 
Wood’s,  and  the  Bleachery? 

A.  Mr.  Faulkner’s  don’t  differ  essentially  from  the  fall  at  Chase’s 
mill. 

Q.  What  do  you  put  the  Faulkuer  fall  at? 

A.  You  might  put  it  the  same  as  at  Chase’s  mill,  from  22J  to 
24f. 

Q.  How  at  Wood’s? 

A.  He  has  from  21 J to  24. 

Q.  How  at  the  Bleachery  ? 

A.  That  would  apply  to  the  Bleachery,  as  I understand  it.  I 
won’t  say  that  positively,  because  I believe  the  Bleachery  does  not 
run  a wheel. 

Q.  Did  you  see  the  wheel? 

A.  No,  sir  ; I did  not  see  the  wheel. 

Q.  What  wouldbe  the  effective  horse-power  at  Faulkner’s  with 
that  fall? 

A.  I don’t  know  how  much  he  has. 

Q.  Taking  it  at  twenty-five  cubic  feet. 

A.  The  power  would  not  be  far  from  fifty  horse-power,  with 
twenty-five  cubic  feet. 

Q.  Taking  it  at  thirty-six  feet  at  the  Bleachery,  and  twenty-five 
feet  at  Faulkner’s,  and  twelve  at  Wood’s? 

A.  Twelve  cubic  feet  at  Wood’s  would  be  about  the  same  ratio. 

Q.  Woods’  has  a little  less  fall  than  Faulkner’s,  has  it  not? 

A.  I have  taken  the  fall  at  Wood’s  mill.  That  will,  I presume, 
apply  very  nearty  to  the  Bleachery. 

Q.  You  have  examined  the  Wamesit  canal,  have  you  not,  all 
the  way  through  down  to  the  Bleachery  ? 

A.  I have  been  over  the  ground.  I haven’t  sounded  the  canal, 
or  made  any  exact  measurement  of  it. 

Q.  In  your  judgment,  would  it  have  the  capacity  to  carry  to 
the  Bleachery  thirty-six  cubic  feet,  and  to  Wood’s  twelve  cubic 
feet,  as  it  is  now,  if  the  water  was  there  to  go  through? 

A.  It  would  if  other  people  didn’t  take  if  out  before  it  got  there. 

Q.  Have  you  any  doubt  as  to  that  fact? 

A.  I have  no  doubt  of  this  fact : that  if  no  man  drew  more  than 
his  share,  no  other  man  would  be  obliged  to  take  less  than  his 
share. 

Q.  And  it  could  be  so  arranged  that  each  man  could  get  his 
share  ? 


Testimony  of  Joseph  B.  Frizell. 


623 


A.  I think  it  could  be  so  arranged. 

Q.  I want  your  judgment  as  to  whether  if  Mr.  Wood  and  the 
Bleachery  had  so  much  water  of  the  river  that  they  were  entitled 
to  go  to  their  places  respectively,  and  the  water  was  there,  the 
capacity  of  the  canal  would  enable  them  to  get  it  there  from  where 
the  Wamesit  fall  comes  in  between  Wood’s  and  the  Bleachery? 

A.  It  would  depend  upon  what  other  concerns  were  drawing. 

Q.  I say,  assuming  that  others  do  not  touch  it,  that  they  have  it 
and  own  it,  with  others,  is  the  capacity  of  the  canal  enough  to 
carry  it  to  their  works  ? 

A.  I can  only  answer  the  question  upon  certain  assumptions. 
If  other  parties  drew  all  that  they  could,  Mr.  Woods  and  the 
Bleachery  would  not  be  able  to  get  that  amount. 

Q.  If  it  was  not  taken  before  it  got  there  to  use  at  the  dam, 
would  the  canal,  after  it  got  there,  have  the  capacity  to  deliver  it 
to  the  Bleachery  and  to  Wood’s? 

A.  I think  it  would. 

Mr.  Butler.  I agree,  that  if  there  was  nobody  drawing  but 
Wood,  the  canal  is  big  enough  to  carry  it. 

Mr.  Richardson.  That  is,  there  is  not  physical  difficulty  in  its 
being  carried,  if  it  is  there. 

Mr.  Butler.  If  it  is  there  at  a sufficient  height.  The  difficulty 
about  your  canal,  brother  Richardson,  I guess  is,  that  you  want  to 
cut  it  down  a little,  because  the  water  has  to  run  up  hill  after  it 
gets  down  a certain  distance. 

Mr.  Richardson.  The  difficulty  maybe  that  the  Wamesit  canal, 
taking  it  out  of  the  main  canal,  is  a foot  lower. 

Mr.  Butler.  I don’t  care  whether  the  Wamesit  canal  is  a foot 
lower,  or  yours  is  a foot  higher. 

Mr.  Richardson.  If,  where  the  Wamesit  canal  takes  it  out  of 
the  main  canal,  it  was  on  the  same  level  with  the  main  canal,  there 
would  be  no  difficulty  ; but  if,  after  getting  to  the  Wamesit  canal, 
the  water  has  to  go  a foot  higher,  it  is  a little  difficult  for  it  to  get 
up  there. 

Mr.  Butler.  That  is  the  exact  ground  of  defence  that  the  Wa- 
mesit people  take,  it  seems  to  me.  I should  have  advised  that,  if 
they  had  asked  me. 

Witness.  I wish  to  amend  one  answer.  When  I gave  the 
amount  of  water  called  for  by  the  machinery  of  the  Stott  mill,  it 
was  upon  the  assumption  of  a fall  of  nine  feet. 

Q . What  is  the  fall  in  summer? 

A.  The  fall  during  those  ‘measurements  was  something  over 
eleven  feet. 

Q.  How  much  difference  would  it  make  ? 

A.  As  eleven  to  nine.  The  quantity  of  water  would  be  dimin- 
ished in  the  proportion  of  eleven  to  nine. 


Cross-Examinatio7i . 


Q.  (By  Mr.  Butler.)  Mr.  Frizell,  3-ou  say  that  the  evaporation 
area  is  4,685  acres  of  the  marsh.  That  covers  all  there  is  of  marsh, 


624 


Testimony  of  Joseph  B.  Frizell. 


partially  flowed  and  open  water  between  the  Talbot  dam  and  the 
Saxonville  dam  ? 

A.  Yes,  sir. 

Q.  And  which  you  assume  to  be  an  evaporating  area  of  equal 
power  ? 

A.  I assume  that  there  would  be  as  much  evaporation  from  the 
marsh  as  there  is  from  the  water  surface. 

Q.  That  is,  you  assume  that  area  to  be  an  evaporating  area  of 
equal  power? 

A.  Yes,  sir. 

Q.  Then,  did  you  ascertain  the  evaporating  area  between  Talbot 
and  Wamesit? 

A.  No,  sir. 

Q.  Why,  not? 

A.  I had  no  means  of  getting  at  the  area  of  the  meadows,  with- 
out making  a survey  of  them.  I was  able  to  get  the  area  of  the 
meadows  between  Talbot  and  Saxonville,  from  the  report  made  by 
the  commissioners. 

Q.  That  is,  you  did  not  do  it,  because  you  did  not  have  a sur- 
vey of  the  area  ? 

A.  Yes,  sir. 

Q.  Do  you  know  whether  that  report  of  the  commissioners  is  a 
surveyed  area  or  not  ? 

A.  It  is  given  as  being  accurately  determined. 

Q.  Yes,'  but  is  it  given  as  a surveyed  area,  or  an  estimated 
area,  — which? 

A.  I can’t  say  whether  it  is  given  as  a result  of  a survey  or 
not. 

Q.  Is  there  any  survey  in  that  report,  or  any  plan  showing  it? 

A.  There  is  a plan  of  the  river. 

Q.  I know,  but  does  the  plan  show  the  area  at  all? 

A.  I think  it  does. 

Q , Then  please  answer  the  question, — is  there  any  measure- 
ment or  map  showing  the  area  in  that  report  ? 

A.  There  is  a map,  I think,  and  I think  the  area  of  the  meadow 
is  marked  on  the  map. 

Q.  Won’t  }Tou,  betwixt  now  and  to-morrow  morning,  make  your- 
self sure  about  that  ? 

A.  Yes,  sir. 

Q.  Now,  I suppose  there  would  be  greater  evaporation  and 
soakage,  and  therefore  waste  of  water,  where  a river  was  being 
drawn  down  and  filled  from  time  to  time,  wonld’nt  there?  The 
meadows  were  sometimes  left  bare,  and  then  filled  up  again? 

A.  I think,  as  long  as  the  ground  is  saturated  with  water,  it 
would  make  but  very  little  difference. 

Q.  Then,  it  would  make  no  difference  to  flow  the  marshes,  and 
then  draw  the  water  down,  and  keep  on  flowing  and  drawing  down 
alternately,  week  b}r  week,  in  the  evaporation  or  the  soakage,  in 
your  judgment? 

A.  Unless  drawing  down  the  water  dried  the  surface. 

Q.  And  would’nt  it  dr}r  the  surface  more  or  less? 

A.  I should  hardly  think  so.  The  backing  up  of  the  water  does 


Testimony  of  Joseph  B.  Frizell. 


625 


not  extend  very  far  up  the  river.  The  variations  of  the  water  at 
Talbot’s  dam  do  not  extend  very  far  up  the  river. 

Q.  I am  not  dealing  now  with  Talbot’s  dam  at  all ; I am  only 
asking  you  a general  question  ; therefore,  you  need  not  go  into  any 
course  of  reasoning  about  that ; I only  want  to  get  your  general 
belief,  and  put  the  general  question  to  you,  whether  the  evapora- 
ting capacity  of  the  marsh  and  pond  would  not  be  very  considerably 
enhanced  where  you  draw  it  down  and  filled  it  up  often  ? 

A.  If  you  draw  it  down  and  filled  it  up  often,  I think  it  would 
make  very  little  difference  ; that  is,  once  a day. 

Q.  If  you  kept  on  drawing  down  sometime,  and  then  filled  it  up, 
would  it  not  take  up  a very  considerable  amount  of  water  ? 

A.  The  water  contained  in  the  ground  would  run  off  when  you 
draw  the  water  down,  and  the  ground  would  fill  up  when  you  raised 
the  water. 

Q.  Would  you  not  find  this  condition  of  things,  that  where  the 
water  had  been  drawn  down  a considerable  time,  and  rain  came, 
you  would  hardly  perceive  it,  whereas,  if  it  was  full,  you  would 
feel  it  at  once  ? 

A.  I don’t  quite  understand  your  question. 

Q.  Is  not  this  the  fact,  that  where  a pond  has  been  drawn  down 
for  a considerable  time,  and  then  there  comes  a rainfall  on  that 
drainage  area,  that  rainfall  is  taken  up,  so  that  you  do  not  per- 
ceive it  in  the  flow  at  the  place  where  the  water  is  drawn  ? 

A.  I presume  that  may  be  the  case. 

Q.  I “presume”  that  it  may  be,  but  is’nt  it  so?  That  is  the 
question  ? 

A.  You  mean,  the  ground  from  which  the  water  is  drawn  ? When 
you  draw  down  a pond  which  required  some  considerable  time  to 
fill  up  again  from  rain,  you  would  not  perceive  the  effect  of  it  so 
quick,  as  if  the  pond  was  full,  perhaps. 

Q.  11  Perhaps  ” is  a qualification.  Don’t  it  make  a great  deal  of 
difference  ? 

A.  It  makes  a great  deal  of  difference  whether  the  ground  is 
saturated  with  water  or  not. 

Q.  For  instance,  — suppose  the  pond  were  drawn  down  between 
the  Saxonville  and  Talbot’s  dam  a foot  and  a half  (I  won’t  say 
whether  it  could  or  could  not  be  now) , and  it  remains  drawn  down 
some  three  or  four  weeks,  in  a dry  time,  and  then  there  should  fall 
on  the  upper  half  of  that  pond  an  inch  of  rain,  would  you  feel  it  at 
all  at  Talbot’s? 

A.  I think  you  would  feel  it ; not  so  much,  perhaps. 

Q.  Would  you  feel  it  perceptibly  ? i 

A.  I think  that  an  inch  of  rain-fall  would  be  felt  at  Talbot’s 
dam  almost  any  time. 

Q.  The  Wamesit  dam  is  drawn  down  frequently,  and  is  kept 
drawn  down  for  some  time,  depending  upon  the  coming  rkinfall  to 
fill  it  up,  isn’t  it?  Drawn  down  some  inches,  a foot  or  a foot  and 
a half,  during  the  summer  ? Is  not  that  so  ? 

A.  We  have  not  found  it  more  than  a foot  below  the  cap  of  the 
dam. 

Q.  Haven’t  there  been  permanent  flash-boards  on  all  the  time, 
so  that  those  were  practically  the  top  of  the  dam  ? 


626 


Testimony  of  Joseph  B.  Fkizell. 


A.  Yes,  sir. 

Q.  Wasn’t  it  drawn  down  a foot  and  over  during  the  summer 
below  the  top  of  those  flash-boards  ? 

A.  Yes,  sir. 

Q.  Why  couldn’t  you  have  told  me  so  before? 

A.  I wanted  to  speak  accurate^. 

Q.  Have  you  any  other  means  of  :forming  your  opinion  of  }Tour 
own  knowledge,  as  to  the  amount  of  water  running  in  the  river 
which  may  be  depended  upon,  than  is  derived  from  the  measure- 
ments which  you  have  put  in  ? 

A.  From  the  measurements  and  rain  gauge  records  ? 

Q.  Have  3rou  any  other? 

A.  No  other. 

Q.  For  how  man}r  years  have  you  calculated  the  rain-gauge 
record  and  the  effect  of  it? 

A.  I have  not  made  any  exact  calculations  ; that  is  not  a matter 
that  can  be  made  a subject  of  exact  calculations. 

Q.  I did  not  ask  you  whether  3’ou  had  made  exact  calculations, 
I asked  3’ou  how  many  years  you  had  made  anyT  calculations  upon 
which  you  based  your  opinion  ? 

A.  Well,  I run  over  two  or  three  years. 

Q.  Which  two  or  three  years  ? 

A.  The  last  two  or  three  years. 

Q.  Did  you  take  into  calculation  whether  the  cityT  of  Boston  was 
taking  the  water  at  this  time  or  not  ? 

A.  I assumed  that  the  water  was  being  taken  during  our  mea- 
surements. 

Q.  I am  talking  about  y^our  calculations  now,  sir? 

A.  I give  my  result  upon  the  assumption  that  the  water  was  not 
diverted  ? 

Q.  Was  not  diverted? 

A.  Yes,  sir. 

Q.  In  neither  of  the  years  ? 

A.  Not  in  either  of  the  years. 

Q.  Did  you  take  out  any  amount  for  its  diversion  in  either  of 
the  years  in  your  calculation  ? 

A.  I made  the  statement  on  the  assumption  that  the 

Q.  I don’t  ask  you  what  your  statement  was  ; I ask  3’ou  for 
your  calculation  by  which  3'ou  arrived  at  that  statement? 

A.  No,  I made  no  allowance  for  the  water  being  diverted. 

Q.  What  rain  gauge  did  3tou  take  to  get  at  that  calculation? 

A.  That  cannot  be  called  a 4 4 calculation.” 

Q.  Well,  that  which 3*011  have  given  your  sworn  judgment  upon? 
I don’t  care  whether  3*011  call  it  a calculation  or  a guess  ? 

A.  I took  the  rain-gauge  for  Lowell,  for  Framingham  and  for 
Lake  Cochituate. 

Q.  Does  the  rain-gauge  at  Lake  Cochituate  show  an  average 
higher  or  lower  than  the  Lowell  rain-gauge  ? 

A.  I can’t  sa3T ; I think  the  rain-gauge  at  Lake  Cochituate 
shows  a higher  average  general^  than  the  gauge  at  Lowell. 

Q.  Did  it  the  last  two  or  three  3*ears  ? 

A.  I can’t  sa3'. 


Testimony  of  Joseph  B.  Frizell. 


627 


Q.  Did  you  examine  the  water-shed  of  "River  Meadow  brook  ? 

A.  No,  sir. 

Q.  Do  you  know  whether  it  is  as  good,  or  better,  or  worse  than 
the  average  water-shed  of  Concord  river  or  Sudbury  river  ? 

A.  I know  that  it  is  not  so  valuable. 

Q.  How  do  you  know  that,  if  you  did  not  examine  it  ? 

A.  I know  from  the  flow  of  the  brook,  that  is  all. 

Q.  Have  you  any  knowledge  of  the  flow  of  the  brook,  except 
for  a month? 

A.  No. 

Q.  Then  you  know  that  it  is  not  so  valuable,  because  you  know 
the  flow  of  the  brook,  in  the  driest  time,  for  one  month.  How 
many  measurements  did  you  make  of  the  flow  of  that  brook? 

A.  I ascertained  the  flow^of  the  brook  about  twice  every  three 
hours. 

Q.  How? 

A.  By  means  of  a weir. 

Q.  Where  did  you  put  the  weir? 

A.  In  the  dam  belonging  to  the  Bleachery. 

Q.  At  the  Bleachery  dam? 

A.  Yes,  sir. 

Q.  Were  the}7  using  their  draft  below  their  mill-race  or  above? 

A.  What  do  you  mean  by  “ their  mill-race?” 

Q.  Well,  I mean  pretty  much  what  I say.  There  is  a dam  and 
generally  there  is  a mill-race  where  they  use  the  water? 

A.  The  bleacher}"  has  two  yards  ; this  dam  is  in  the  upper  yard 
of  the  bleachery. 

Q.  Did  you  put  it  above  where  the  bleachery  takes  out  any 
water,  or  below  ? 

A.  There  was  a little  water  taken  out  above,  I think,  and  dis- 
charged immediately  below". 

Q.  How  did  you  get  at  that? 

A , I made  a little  flume  below  the  dam,  and  took  the  leakage  of 
the  dam  and  what  is  discharged  from  the  building  in  the.  bleachery 
yard. 

Q.  Where  did  you  put  the  weir? 

A.  The  weir  was  on  the  dam. 

Q.  Was  there  any  water  running  over  the  dam? 

A.  The  water  was  running  over  the  dam  during  our  measure- 
ments. The  water  ran  over  our  weir  always  — over  the  weir  and 
over  a part  of  the  dam. 

Q.  Which  did  it  run  most  over,  your  weir,  or  through  the 
flume? 

A.  There  was  a very  small  quantity  running  through  the  flume. 

Q.  Now,  having  ascertained  your  mode  of  measurement,  let  me 
go  a little  more  carefully  into  what  you  did  measure  ; how  often 
did  you  measure  ? 

A.  I noted  the  height  of  the  water  every  forty  minutes. 

Q.  For  how  long? 

A.  For  thirty-one  days. 

Q.  Give  me  the  flow  for  thirty-one  days  on  the  Eiver  Meadow- 
brook  ? 


628 


Testimony  of  Joseph  B.  Frizell. 


A.  I have  not  computed  tlie  average  flow  for  any  day. 

Q.  I have  not  asked  for  the  average.  Give  me  any  measure- 
ments you  made  of  the  brook?  In  the  first  place,  you  gave  us  the 
minimum  as  four  feet. 

A.  I don’t  remember  that  I gave  the  minimum. 

Q.  Yes,  sir,  you  gave  the  minimum  at  four  feet  per  second,  as 
I remember  it,  because  I made  a little  calculation  based  upon  that. 

A.  I guess  Mr.  Shattuck  stated  that. 

[By  reference  to  the  minutes  of  the  commissioners,  it  appeared 
that  the  witness  so  stated.] 

Q.  Then  you  assumed  that  it  was  very  variable,  and  I want  to 
see  how  it  varied. 

A.  On  the  13th  of  September,  the  flow  did  not  reach  four  cubic 
feet  per  second  but  twice  during  the  time. 

Q.  Now,  won’t  you  begin  on  the  24th  day  of  August,  and  go 
on  ; that  will  be  the  better  wa}^. 

A.  On  the  24th  of  August,  Thursday,  the  measurements  were 
commenced  about  10.45  in  the  afternoon.  The  quantity  passing 
Hale’s  brook  was  extremely  small.  It  did  not  amount  to  a cubic 
foot  per  second  until  half  past  one.  At  1.40  it  was  2.10  cubic 
feet ; at  1.45,  4.21  ; at  1.50,  6.16  ; at  1.55,  7.76  ; at  2 o’clock,  9.02 
cubic  feet ; at  3 o’clock  it  was  11  cubic  feet ; at  3.30,  10.35  ; at  4, 
9.91  ; at  4.30,  9.70  ; at  5 it  w^as  9.61  ; at  5.30,  9.36  ; at  6,  8.9  ; 
at  6.30,  8.4;  at  7,  8 cubic  feet;  at  7.30,  7.80;  at  8,  7.76;  at 
8.30,  7.60  ; at  9 o’clock,  7.41  ; at  9.30,  7.41  ; at  10,  7.21  ; at  10.30, 
7.02 ; at  11,  6.98 ; at  11.30,  6.83  ; at  12  o’clock,  Friday  morning, 
it  was  6.64. 

Q.  About  one  hundred  rods  above  there,  there  is  a small  dam, 
isn’t  there  ? 

A.  There  is  a dam  a short  distance  above. 

Q.  And  if  those  mills  happen  to  be  running,  there  will  be  some 
water  in  the  brook ; and  if  they  do  not  happen  to  be  running,  there 
isn’t  any? 

A.  That  is  the  fact. 

Q.  Now,  let  us  take  from  12  o’clock  to  12  the  next  day.  Give 
me  what  it  was  from  12  o’clock  at  noon  Frida}r  to  12  at  night. 

A.  At  12  in  the  morning  it  was  6.64  ; at  noon  it  was  exactly 
the  same,  6.64. 

Q.  How  was  it  at  12  at  night,  Friday? 

A.  6.68. 

Q.  How  was  it  at  12  at  noon,  Saturday? 

A.  It  was  7.02. 

Q.  How  was  it  at  12  at  night,  Saturday? 

A.  That  was  5.91. 

Q.  How  was  it  at  12  at  noon,  Sunday? 

A.  It  was  6.31. 

Q.  How  was  it  at  12  at  night,  Sunday? 

A.  It  was  5.8. 

Q.  How  was  it  at  12  at  noon,  Monday?  • 

A.  It  w^as  5.27. 

Q.  How  was  it  at  12  at  night,  Monday? 

A.  5.17. 


Testimony  of  Joseph  B.  Frizell. 


629 


Q.  How  was  it  at  11  at  noon,  Tuesday? 

A.  It  was  5.27. 

Q.  How  was  it  at  12  at  night,  Tuesday? 

A.  It  was  5.62. 

Q.  How  was  it  at  12  at  noon,  Wednesday? 

A.  6.76. 

Q.  How  was  it  at  12  at  night,  Wednesday? 

A.  5.24. 

Q.  12  at  noon,  Thursday? 

A.  5.55. 

Q.  12  at  night,  Thursday? 

A.  5.55. 

Q.  12  at  noon,  Friday? 

A.  5.21. 

Q.  12  at  night,  Friday? 

A.  5.24. 

Q.  12  at  noon,  Saturday? 

A.  5.14. 

Q.  3 2 at  night,  Saturday? 

A.  5.55. 

Q.  Now,  Sunday  noon? 

A.  5 21. 

Q.  12,  Sunday  night? 

A.  4.97. 

Q.  Monday  noon? 

A.  4.70. 

Q.  12,  Monday  night? 

A.  4.22. 

Q.  Tuesday  noon? 

A.  3.91. 

Q.  12,  Tuesday  night? 

A.  3.6. 

Q.  Wednesday  noon? 

A.  3.08. 

Q.  Wednesday  night? 

A.  3.28. 

Q.  Thursday  noon  ? 

A.  3.34. 

Q.  Now,  we  have  got  round  fifteen  days.  It  is  a pretty  con- 
stant stream^ isn’t  it,  upon  the^whole?  It  did  not  vary  much  those 
fifteen  days,  did  it? 

A.  Not  much  that  fifteen  days. 

Q . Which  fifteen  days  did  it  vary,  so  that  you  swore  it  was  va- 
riable ? 

A.  If  you  will  go  on,  we  will  come  to  the  variations.  There  was 
nothing  to  make  it  vary  until  there  came  a rain. 

Q.  When  you  got  over  to  about  the  19th  of  September,  I guess 
it  varied  considerably,  didn’t  it  ? 

A.  At  noon,  on  the  18th  of  September,  it  was  24  cubic  feet  per 
second. 

Q.  What  was  it  at  midnight  on  the  18th  ? 

A.  At  midnight  on  the  18th  there  was  27.01. 


630 


Testimony  of  Joseph  B.  Frizell, 


Q.  Now,  take  it  the  next  day  at  noon? 

A.  At  noon,  on  the  19th,  there  was  32.26.  At  midnight,  that 
is,  the  commencement  of  September  20,  there  was  25.7. 

Q.  How  much  rainfall  was  there  ? 

A.  The  day  before  it  began  to  rise,  by  the  Lowell  guage,  the 
rain  did  not  come  at  Lowell  until  the  19th.  It  commenced  to  rise 
on  the  18th.  The  rain  at  Lake  Cochituate  occurred  on  the  18th  ; 
2.4  inches. 

Commissioner  Francis.  The  rain  at  Lowell,  as  I happen  to 
know,  is  put  down  when  it  is  ascertained.  It  frequently  falls  the 
day  before.  The  day  does  not  end  until  12  at  night,  and  the  man 
does  not  get  at  it  until  the  next  day  ; and  it  frequently  appears  the 
day  following  the  rain. 

Q.  How  far  is  the  head  water  of  River  Meadow  brook  from 
Lowell  ? 

A.  I can’t  say. 

Q.  About  how  far? 

A.  I don’t  know  that  I have  the  remotest  idea  of  it. 

Q.  Is  it  five  miles  off  ? 

A.  I should  think  it  would  be  rather  more  than  that ; but  I can’t 
say  positively  about  that. 

Adjourned  to  Wednesday  morning , at  9.30  o’clock.] 


Testimony  of  Joseph  B.  Frizell. 


631 


Boston,  Wednesday,  Oct.  11,  1876. 

The  commissioners  met  at  9.30  A.  M. 

Joseph  P.  Frizell,  continued. 

Witness.  I wish  to  explain  or  correct  my  testimony  as  to  the 
height  of  the  water  in  the  canal  on  the  19th  of  September,  at  the 
Wamesit  dam.  At  10.20  it  was  43.66. 

Q.  (By  Commissioner  Francis.)  That  is  on  locks  and  canals 
scale,  as  you  call  it? 

A.  Yes,  sir;  I can  give  you  an  intermediate  time.  At  3.45  it 
was  43.48  ; at  4.45  it  was  43.45. 

Q.  That  gives  a fall  of  -fifo  then  in  the  canal  at  the  same  time  ? 

A.  There  are  various  heights  in  the  canal. 

Q.  Well,  at  nearly  the  same  times.  Give  us  at  the  same  time 
as  near  as  you  can  at  Wood’s? 

A.  At  Wood’s  at  10.38  to  10.40  it  was  42.98 ; at  4 o’clock  it 
was  42.56. 

Q.  (By  Mr.  Shattuck.)  Now  the  quantities  running  at  those 
times? 

A.  At  5 o’clock  it  was  42.50. 

Cross-examination . 

Q.  (By  Mr.  Butler.)  It  would  seem  from  the  measurements 
you  gave  us  last  night,  that  River-meadow  brook  answers  very 
quickly  and  efficiently  to  any  rainfall,  in  delivering  its  water? 

A.  Yes,  sir ; that  is  correct. 

Q.  That  it  remains  very  stable,  apparently,  in  dry  times  for  a 
series  of  days,  and  quite  stable  in  a wet  time  for  a series  of  days? 

A.  I don’t  understand  it  to  remain  stable  in  a wet  time  for  any 
great  length  of  *time  ; that  is,  no  longer  than  the  wet  weather  con- 
tinues. 

Q.  If  you  answer  in  that  way  — I took  three  days  following  the 
19th  of  September  — I shall  have  to  ask  you  to  go  on. 

A.  Go  on  from  the  20th? 

Q.  You  gave  us  three  days,  the  18th,  19th  and  20th. 

A.  Now  I will  give  you  the  21st. 

Q.  Now  give  me  the  21st  at,  noon  and  night ; and  I will  also 
take  the  noon  and  night  on  the  18th,  19th  and  20th? 

A.  On  Thursday,  Sept.  21st  at  no  o’clock,  that  is  at  midnight, 
the  quantity  passing  Hale’s  brook  was  7.6  cubic  feet  per  second. 

Q.  At  noon  now? 

A.  19  cubic  feet  per  second. 

Q.  At  midnight,  then,  it  is  only  7,  and  in  the  day  it  was  19. 
Give  us  the  next  midnight,  the  22d  ? 


A. 

15.48. 

Q- 

The  next 

at  noon  ? 

A. 

At  noon, 

Sept.  22d,  12.90. 

Q- 

At  midnij 

ght? 

A. 

12.56. 

632 


Testimony  of  Joseph  B.  Frizell. 


Q.  At  noon  the  next  day? 

A.  12.47. 

Q.  At  night  the  next  day? 

A.  4.57.  That  which  I am  speaking  of  is  the  commencement 
of  Sunday,  Sept.  24th.  At  noon,  Sunday  the  24th,  we  have  5.66. 

Q.  At  midnight,  Monday? 

A.  At  midnight,  between  Sunday  and  Monday,  we  have  9.91. 

Q.  At  noon,  Monday? 

A.  That  is  the  extent  of  the  measurements. 

Q.  How  do  you  account,  sir,  if  you  can  account,  for  the  fact 
that  on  the  21st,  at  midnight,  it  was  only  7 cubic  feet,  and  at 
noon  the  next  day  it  was  19  cubic  feet,  if  I get  you  right,  in 
round  numbers? 

A.  It  is  undoubtedly  owing  to  the  effect  of  the^dam  above. 

Q.  That  is,  the  dam  held  back  the  water? 

A.  That  is  presumable. 

Q.  Then  an  inch,  and  better,  of  rain  in  that  vicinity,  will 
increase  the  flow  of  Meadow-river  brook  more  than  six  times  ? 

A.  There  was  more  than  an  inch  of  rain ; two  and  a half  per- 
haps. 

Q.  Whatever  there  was  increased  it? 

A.  Yes,  sir. 

Q.  Now  the  fact  that  a stream  answers  quickly  to  the  effects  of 
a rain,  is  not  such  a fact  indicative  that  it  is  a good  drainage 
area  ? 

A.  It  might  be  good  from  some  points  of  view,  but  not  good 
for  water-power  at  that  point  you  are  speaking  of. 

Q.  How? 

A.  Not  good  with  reference  to  water-power  in  the  immediate 
vicinity. 

Q.  It  is  a good  drainage  area  but  not  good  for  water-power? 

A.  It  may  be  good  for  some  purposes,  but  the  value  of  water- 
power depends  upon  the  steadiness  of  the  supply.  If  a stream  is 
a torrent  at  one  time  and  nearly  dry  at  another,  it  Is  not  good  for 
water-power. 

Q.  Is  it  not  a fact  thatBall  streams  operate  in  that  way  as  a rule, 
quickly  answering  to  a rain,  the  water  quickly  running  off,  and 
then  becoming  small  in  amount? 

A . It  may  be  affirmed  that,  as  a general  thing,  the  larger  the 
drainage  area  the  less  the  fluctuation. 

Q.  Then  j^ou  would  expect  a great  deal  more  steadiness  in  four 
times  or  five  times  a drainage  area,  than  in  one-fifth  of  a drainage 
area,  would  not  }tou  ? 

A.  Yes,  I should  expect  some  more. 

Q.  Considerably  more? 

A.  It  would  depend  upon  some  of  the  other  circumstances. 

Q.  Well,  other  circumstance  being  equal? 

A.  Other  circumstances  being  equal ; yes,  sir. 

Q.  Now,  do  you  know  anything  of  the  circumstances,  of  your 
own  knowledge,  of  the  drainage  area  of  the  Sudbury  river,  as 
compared  with  the  drainage  area  of  the  Assabet  and  the 
Lisabet? 


Testimony  of  Joseph  B.  Friz  ell. 


633 


A.  The  only  feature  that  can  affect  the  — 

Q.  Do  you  know  anything,  I am  asking,  now,  of  your  own 
knowledge  ? 

A.  Yes,  I know  something  of  my  own  knowledge. 

Q.  What  do  you  know  of  the  Assabet ; were  you  ever  on  it? 

A.  I have  never  been  on  the  Assabet  that  I remember  of. 

Q.  Have  you  ever  been  on  the  Lisabet? 

A.  What  river  is  that? 

Q.  Well,  if  you  don’t  know,  then  you  have  never  been  on  it,  and 
that  is  sufficient  for  my  purpose.  Have  you  ever  been  down  on  the 
Sudbury? 

A.  Yes,  sir.  It  is  not  necessary  to  go  on  to  those  streams  to 
understand  that  fact. 

Q.  To  ascertain  what  the  drainage  area  is,  it  is  not  of  any  con- 
sequence to  know  the  nature  of  the  ground? 

A.  To  understand  whether  the  flow  should  be  more  uniform  on 
the  Concord  river,  than  on  the  smaller  streams,  it  would  not  be 
necessary  to  go  up  into  the  head-waters  for  that. 

Q.  I am  not  asking  you  that  question.  For  an  engineer,  even 
one  who  has  been  twenty  years  in  practice,  to  know  the  effective- 
ness of  a drainage  area,  it  would  require  that  he  should  go  on  to  it, 
wouldn’t  it,  or  see  and  know  the  condition  of  the  country  ? 

A.  I don’t  know  what  you  mean  by  the  effectiveness  of  the 
drainage  area ; if  you  mean  the  aggregate  quantity  of  water 
discharged  — 

Q.  We  have  dealt  with  the  effectiveness  ; that  depends  wholly 
upon  whether  the  water  runs  off  suddenly  or  don’t  run  off  sudden- 
ly, which  is  the  effectiveness  of  a water-power.  Now,  in  order  to 
know  that,  is  it  not  necessary  to  know  by  actual  measurement  of 
the  stream,  or  by  actual  observation  of  the  drainage  area? 

A.  If  you  want  to  know  the  character  of  the  Assabet  where  it 
joins  the  Sudbury,  it  might  be  necessary  to  examine  the  stream. 
If  you  desire  to  know  the  efficiencj7  of  the  Assabet  in  that  respect 
at  the  point  where  it  joins  the  Sudbury — 

Q.  What  would  you  do  ? 

A.  Examine  the  stream  for  that  purpose. 

Q.  What  would  you  do  to  find  it  out? 

A.  An  examination  of  the  stream  would  be  useful. 

Q.  What  other  means  would  you  have  of  knowing? 

A.  My  knowledge  of  such  matters. 

Q.  But  the  knowledge  must  be  applied  to  the  facts  before  you, 
must  not  it?  Your  theoretical  and  scientific  knowledge  must  be 
applied  to  the  facts.  What  other  means  would  you  have  of  know- 
ing the  capacity,  as  an  effective  water-shed  or  drainage  area,  of  the 
Assabet  river,  for  instance,  without  knowing  the  character  of  the 
ground,  whether  it  was  marshy,  whether  it  was  a flat  country,  or 
whether  it  was  a rolling  country  ? 

A.  Measure  the  discharge  of  the  Assabet  for  a long  period. 

Q.  If  you  could  have  the  discharge  of  the  Assabet  for  a long 
period.  Have  you  got  that? 

A.  I have  not  got  it  separate  from  other  streams. 

Q.  Will  you  tell  me  whether  this  would  not  be  the  most  accu- 


634 


Testimony  of  Joseph  B.  FpvIzell. 


rate  mode  of  getting  the  Sudbury  in  a matter  of  comparison,  the 
most  accurate  mode  open  to  us,  rather  than  taking  the  rain-gauge 
simply.  The  reports  of  the  City  Engineer,  if  they  are  correct, 
show  the  gauge  of  the  water  delivered  for  a series  of  years,  say 
ten,  from  Lake  Cochituate,  which  is  the  nearest  rain-gauge.  Now, 
assume  that  quantity  to  be  the  actual  capacity  of  the  drainage 
area  of  Lake  Cochituate,  then  compare  that  drainage  area  with  the 
area  of  the  Sudbury  — do  you  know  any  more  accurate  method  of 
instituting  a comparison  than  that? 

A.  That  might  be  correct  as  to  the  aggregate  quantity  of  water 
that  the  Sudbury  would  discharge. 

Q.  Yes,  that  would  be  correct  as  to  the  aggregate  quantity  of 
water,  but  whether  it  would  discharge  it  suddenly  or  slowly  would 
be  entirely  another  question? 

A.  Yes,  sir. 

Q.  And  that  would  depend  upon  your  knowing  the  character  of 
the  water-shed,  would  it  not? 

A.  Unless  you  have  measured  the  discharge. 

Q.  Do  you  know  any  more  accurate  way  of  getting  at  it,  in  the 
absence  of  the  measure  of  the  discharge,  than  that  ? 

A.  Well,  the  ratio  of  the  discharge  to  the  rainfaH,  as  deter- 
mined from  the  observations  at  Lake  Cochituate,  is  a good  deal 
lower  than  other  observations  have  shown. 

Q.  I didn’t  ask  your  opinion  upon  it,  sir.  That,  I assume, 
may  be  an  element  in  the  calculations,  but  I am  asking  you  if  you 
know  of  any  more  accurate  way  of  getting  it.  Please  now,  don’t, 
Mr.  Frizell,  fence  with  me  and  undertake  to  tell  me  something  to 
make  your  case. 

Mr.  Shattuck.  That  is  an  uncalled-for  observation. 

Mr.  Butler.  I want  an  answer  to  my  question,  whether  that 
method  of  measuring  would  or  would  not  be  more  likely  to  be 
more  accurate  than  any  mere  computation  of  drainage  area? 

Witness.  We  are  talking  about  a computation  of  drainage 
area. 

Q.  I am  not  talking  about  that  at  all,  sir.  I will  repeat  the 
question  and  see  if  you  can  understand  it ; this  is  it : the  actual 
discharge  of  water  from  Lake  Cochituate  has  been  measured  for 
many  years ; Lake  Cochituate  has  a certain  drainage  area  which 
has  been  computed  accurately ; now,  then,  that  drainage  area  is 
the  nearest  to  the  Sudbury  river.  Now,  taking  the  actual  discharge 
of  that  drainage  area,  and  computing  the  drainage  area  of  Lake 
Cochituate,  and  computing  the  drainage  area  of  the  Sudbury  river, 
in  the  absence  of  actual  measurements  of  both,  do  you  know  of 
any  more  accurate  way  of  getting  the  probable  discharge  of  Sud- 
bury river? 

A.  You  mean  to  determine  the  ratio  of  rainfall  to  discharge 
from  observations  at  Lake  Cochituate? 

Q.  I mean  exactly  what  I say ; do  you  know  any  more  accu- 
rate way,  in  the  absence  of  actual  measurements,  of  getting  the 
probable  discharge  of  Sudbury  river? 

A.  I should  have  some  hesitation  about  applying  the  results  that 
have  been  found  at  Lake  Cochituate  to  a considerably  larger 
drainage  area. 


Testimony  of  Joseph  B.  Frizell. 


635 


Q.  Without  knowing  anything  about  the  difference  between  the 
two  drainage  areas? 

A.  That  is  hardly  a supposable  case  ; I should  expect  to  know 
something  about  them. 

Q.  Well,  do  you  know  anything  about  them? 

A.  I know  from  the  map. 

Q.  I know  they  look  all  alike  on  the  map  ; don’t  they  ? 

A.  I am  talking  about  the  extent  of  the  drainage  area. 

Q.  I am  not  asking  you  about  the  extent  of  the  thing  ; one  is 
larger  than  the  other.  Do  you  know  anything  to  show  any  differ- 
ence between  the  efficient  capacity,  except  its  size,  between  the 
drainage  area  of  Lake  Cochituate  and  the  drainage  area  of  the 
Sudbury  river? 

A.  Nothing;  but  I — 

Q.  Very  well,  then.  If  you  had  the  exact  amount  of  water 
afforded  by  the  drainage  area,  for  a large  number  of  years,  of  the 
Lake  Cochituate  water-shed,  and  that  being  very  near  the  Sudbury 
river  — quite  near  the  Sudbury  river  — is  there  any  more  accurate 
way  of  getting  the  results  from  the  drainage  area  of  the  Sudbury 
river  than  to  apply  the  measurement  of  the  water  discharged  ? 

A.  As  I said  before,  I should  hesitate  a little  to  apply  it. 

Q.  Why? 

A.  Because  the  results  found  at  Lake  Cochituate  show  a con- 
siderable less  ratio  of  discharge,  as  compared  with  rainfall  than 
observations  at  other  points. 

Q.  Leave  out  the  evaporation  surface  of  Lake  Cochituate  in  my 
estimates  of  the  drainage  area. 

A.  I presume  others  have  done  so  too. 

Q.  Now,  then,  your  trouble  would  be,  that  the  actual  measure- 
ments of  the  drainage  area  of  Lake  Cochituate  have  been  found  to 
be  below  what  the  calculated  results  were? 

A.  Found  to  be  low  as  compared  with  other  observations. 

Q.  Other  observations,  where  ? 

A.  At  New  York,  for  instance. 

Q.  Or  say  in  the  mountains  of  Burraah,  where  there  falls  twenty- 
four  inches  of  rain  in  twenty-four  hours.  I take  it,  there  is  a great 
difference  between  the  two  ; but  I ask,  has  there  been  any  observa- 
tion in  the  neighborhood  which  determines  an}^thing  wrong? 

A.  I am  not  aware  of  any  observation  at  all  in  this  vicinity. 

Q.  Then  there  has  not  been  any  other  observations  in  this  vicin- 
ity ? 

A.  Not  that  I know  of. 

Q.  Now,  then,  as  an  engineer,  please  state  to  these  practical 
gentlemen,  why  you  think  it  would  be  more  satisfactory  to  get  the 
amount  of  water  that  would  fall  on  a drainage  area  in  Massachu- 
setts, to  take  observations  upon  drainage  areas  in  New  York  or 
take  the  actual  results  of  the  drainage  area  in  Massachusetts? 

A.  I should  examine  the  circumstances  that  affect  the  question. 

Q.  I am  giving  you  the  exact  question.  Which  do  you  think 
would  be  less  likely  to  be  accurate,  the  results  obtained  from  ex- 
periments on  a drainage  area  in  New  York,  or  the  actual  measure- 
ments of  a drainage  area  within  five  miles  of  the  Sudbury  river? 


636 


Testimony  of  Joseph  B.  Frizell. 


A.  Other  things  being  equal,  I should  prefer  the  results  obtained 
in  Massachusetts. 

Q.  Do  you  know  anything  to  show  that  the  other  things  are  not 
equal  as  between  the  drainage  area  of  Sudbury  river  and  the  drain- 
age area  of  Lake  Cochituate  ? 

A.  Anything  to  show  that  other  things  are  not  equal  as  between 
those  two  drainage  areas? 

Q.  Do  you  know  of  anything  to  show  that  the  other  things  are 
not  equal  in  those  two  drainage  areas? 

A.  The  records  of  rainfall  at  Lake  Cochituate  are  somewhat  in 
excess  of  those  at  other  points  ; and  I know  that  — 

Q.  In  excess  of  what? 

Mr.  Shattuck.  He  was  finishing. 

A.  I know  that  there  are  very  serious  differences  between  the 
amounts  of  rains  registered  at  points  not  far  from  one  another. 

Q.  (By  Mr.  Butler.)  From  where? 

A.  Not  far  apart,  and  the  presumption  is  very_strong  that  the 
rain-gauge  records  at  Lake  Cochituate  exhibit  an  exceptional 
rainfall ; there  is  no  doubt  that  they  are  correct^  kept. 

Q.  And  the  exceptional  matter  at  Lake  Cochituate  is  in  excess, 
is  it  not? 

A.  The  rainfall  is  in  excess,  and  would  show  a — 

Q.  That  would  be  corrected,  would  it  not,  by  the  fact  that  if  the 
measurements  are  right  that  you  would  get  the  exact  amount  of 
water  which  does  come  from  that  area? 

A.  You  would  not  get  the  amount  of  water  correctly  ; you 
would  get  an  exceptionally  low  ratio  of  discharge.  The  ratio  of 
the  discharge  of  the  rainfall  would  be  low,  and  apply  that  to 
another  district,  you  might  make  an  error. 

Q.  But,  pardon  me,  you  are  not  applying  that  to  another  dis- 
trict ; jTou  are  applying  it  to  the  same  district  in  the  same  vicinity 
within  five  miles. 

A.  You  can  see  . by  m}*;  measurements  at  Lowell  what  great 
differences  there  are  between  contiguous  districts. 

Q.  It  has  been  suggested  to  me  that  you  may  have  misunder- 
stood me  all  this  time.  I am  not  asking  }'ou  to  apply  the  per- 
centage of  rainfall  at  Lake  Cochituate  as  the  test,  but  the  actual 
water  produced  and  measured  through  the  gateway  of  the  city  on 
that  area.  Did  you  understand  me  to  talk  about  that? 

A.  I understood  you  to  compute  the  quantity  of  water  dis- 
charged by  the  Sudbury,  from  results  obtained  on  the  Cochituate 
drainage  ground. 

Q.  Well,  what  results? 

A.  The  only  way  that  could  be  done  — 

Q.  What  results  did  you  understand  me  to  ask  you  about? 

A.  The  amount  of  water  discharged  as  compared  with  the 
amount  of  rain  falling. 

Q.  No,  sir.  I am  taking  the  amount  of  water  discharged  to 
be  what  the  rainfall  produces  in  practice.  Now,  then,  I find  that 
the  actual  amount  of  water  discharged  on  the  Lake  Cochituate 
drainage  area  is  so  much  ; now  I find  that  the  drainage  area  of  the 
Sudbury  is  double  or  treble  that ; should  I expect  to  find  the 


Testimony  of  Joseph  B.  Friz  ell. 


637 


Sudbury  to  be  more  than  double  and  treble  that  actual  measured 
discharge  ? 

A.  I think  the  chances  are  that  you  would. 

Q . Why? 

A.  From  the  fact  that  the  discharge  of  the  Cochituate  district, 
as  compared  with  the  rainfall,  is  exceptionally  low. 

Q.  Why,  then,  should  you  expect  that  the  rainfall  would  not 
be  the  same  in  a nearly  contiguous  district  — might  or  might  not 
be? 

A.  The  rainfall  often  shows  remarkable  variations  in  contigu- 
ous districts. 

Q.  And  you  don’t  know  any  reason  why  there  is  any  variation 
up  there? 

A.  I don’t  know  any  reason  ; no,  sir. 

Q.  Which  would  you  rather  do  for  accuracy,  have  the  actual 
results  of  the  water-shed,  or  drainage  area  of  the  Cochituate,  as  a 
standard  of  comparison,  or  take  simply  a supposed  percentage  of 
the  rainfall  on  the  several  drainage  areas,  to  get  at  the  amount  at 
Sudbury  ? 

A.  If  I had  examined  all  the  processes  by  which  the  results  on 
the  Cochituate  were  obtained,  — and  I had  no  reason  to  question 
their  accuracy,  — I should  probably  not  hesitate  to  apply  them. 

Q.  Then,  if  you  believed  that  the  city  has  honestly  measured 
its  water  for  itself,  that  would  be  the  best  test  ? 

A.  I don’t  raise  any  question  as  to  anybody’s  honesty. 

Q.  Well,  if  the  city  has  accurately  measured  the  quantity  of  its 
water,  that  would  be  the  best  test? 

A.  I don’t  know  any  reason  why  it  would  not  be,  sir. 

Q.  Now,  sir,  I want  you  to  take  the  quantity  of  water  that  has 
flowed  in  the  months  when  the  water  flows  the  least  at  Cochituate, 
and  assume  that  the  rainfall  of  Sudbury  will  give  an  equal  amount 
of  water  on  the  water-shed,  and  tell  me  how  much  water  will  run 
in  the  Sudbury  river  during  the  same  months.  I want  you  to 
verify  this  paper,  if  you  will,  and  we  have  called  it  a paper  show- 
ing approximately  the  flow  of  the  Sudbury  river  water-shed  of  75J 
square  miles,  in  cubic  feet  per  second,  for  24  hours  per  day,  the 
averages  being  taken  by  months,  — the  results  given  being  an 
average  of  the  terms  of  nine  and  thirteen  years,  and  that  average 
got  at  by  taking  the  actual  flow  from  Lake  Cochituate  ? 

Mr.  Shattuck.  Is  this  evidence? 

Mr.  Butler.  It  is  going  to  be  evidence. 

Q.  Now,  will  you  see  whether  it  is  an  accurate  statement  of  it? 
Take  a little  time  for  it.  I will  call  your  attention  to  it  by  and  by. 
That  is  got,  assuming  the  actual  outflow  of  Lake  Cochituate,  the 
production  of  that  drainage  area,  and  then  see  if  we  get  the  right 
deduction. 

Mr.  Shattuck.  This  is  simply  putting  in  city  reports. 

Mr.  Butler.  I am  not  putting  in  any  cit}r  reports. 

Commissioner  Russell.  The  only  question  put  to  thejwitness, 
as  I understand  it,  is  as  to  the  correctness  of  certain  mathematical 
calculations  on  that  paper. 

Mr.  Butler.  Yes,  sir.  Whether  they  are  calculated  on  correct 
principles  ; that  is  all. 


638 


Testimony  of  Joseph  B.  Frizell. 


Commissioner  Russell.  There  is  no  question  of  principle,  as  I 
understand  it.  It  is  only  in  regard  to  the  simple  question  of 
figures. 

Mr.  Butler.  That  is,  assuming  certain  results  would  come.  I 
might  take  time  and  go  over  each  one,  but  that  is  not  necessaty. 

Mr.  Shattuck,  Is  75  J square  miles  to  be  the  admitted  water- 
shed of  Sudbury  river? 

Mr.  Butler.  It  is  the  admitted  actual  water-shed  of  Sudbury 
river,  but  it  is  not  the  admitted  actual  water-shed  of  Sudbury  river 
down  on  a map.  Keep  that  with  you  all  the  time,  because  the 
maps  make  it  about  three  per  cent.  less.  If  you  compare  map 
with  map,  then  you  want  the  water-shed  to  be  73.351  ; if*you  com- 
pare that  with  actual  survey,  making  the  same  allowance  in  the 
larger  region  that  you  do  in  the  region  actually  surveyed,  then  you 
want  to  carry  that  up  to  about  73.73. 

The  Witness.  You  will  have  to  give  me  time  to  examine  this 
one. 

Q.  Well,  sir,  if  there  is  any  other,  we  will  give  them  to  you. 
Did  you  look  up  for  me,  as  I asked  you  to,  the  distance  of  the 
River-meadow  brook  from  Lowell  ? 

A.  The  distance  to  the  extreme  boundary  of  the  drainage  ground 
is  about  eight  and  three-quarters  miles  from  Wamesit  dam. 

Q.  And  the  average  distance  of  the  brook  from  Lowell  ? 

A.  I could  not  say  accurately  ; probably  four  or  five  miles,  — 
something  like  that. 

Q.  Now,  then,  we  will  come,  if  }tou  please,  to  the  Wamesit 
dam.  Is  not  the  height  of  the  water  in  the  canal  regulated  by 
head-gates  ? 

A.  In  the  Wamesit  canal? 

Q.  Yes,  sir. 

A.  The  height  of  the  water  at  the  dam? 

Q.  No  ; the  height  of  the  water  in  the  canal  ? 

A.  I presume  that  it  can  be  raised  or  lowered  by  head-gates. 

Q.  That  is,  by  hoisting  the  head-gates  you  can  raise  the  water 
in  the  canal,  or  shutting  them  down  lower  it? 

A.  I am  talking  about  the  head-gates  at  the  dam. 

Q.  Yes,  sir;  I am  talking  about  the  head-gates  at  the  dam. 

A.  Yes,  sir  ; that  is  correct. 

Q.  That  is,  if  you  should  lower  the  gates  so  as  to  make  their 
capacity  less  than  the  canal  would  discharge,  after  you  draw  the 
water  down  in  the  canal,  then  the  water  would  be  drawn  down  b}r 
the  canal  by  the  wheels  below  ? 

A.  The  lowering  of  the  head-gates  would  occasion  a loss  of  head 
at  that  point. 

Q.  What? 

A.  The  lowering  of  the  head-gates  would  occasion  a loss  of  head 
at  that  point. 

Q.  Why  can’t  you  answer  my  question?  Can’t  jtou  answer 
that?  My  question  is,  if  the  head-gates  were  so  lowered  as  to 
diminish  their  capacity  to  let  water  into  the  canal,  the  inevitable 
effect  would  be  that  it  would  be  drawn  down  ? 

A.  Yes. 


Testimony  of  Joseph  B.  Frizell. 


639 


Q.  If  they  were  raised  higher,  more  than  the  capacity  of  the 
canal,  and  there  is  water  enough  in  the  river,  the  head  would  keep 
up  if  the  canal  had  capacity  enough  to  carry? 

A.  If  they  were  raised  you  raise  the  height  of  the  water  in  the 
canal. 

Q.  So  that  the  height  of  the  water  in  the  canal  depends  on  the 
manipulation  of  the  head-gates  when  there  is  water  enough  in  the 
river  to  fill  the  canal? 

A.  It  depends  in  some  degree,  undoubtedly. 

Q.  Must  it  not  wholly? 

A.  When  there  is  plenty  of  water  in  the  canal. 

Q.  When  there  is  plenty  of  water  in  the  river,  must  it  not 
wholly  ? 

A.  No,  sir  ; it  won’t  depend  wholly  on  that. 

Q.  Suppose  the  water  was  running  five  feet  deep  over  the  dam, 
and  I should  shut  down  the  head-gates,  would  there  be  any  water 
in  the  canal  ? 

A.  No,  sir;  that  is,  if  they  were  tight  and  the  water  was 
drawn  out. 

Q.  And  if  the  mills  were  running,  that  would  be  none.  Well, 
then,  I could  open  them  just  at  the  capacity  to  fill  the  canal, 
couldn’t  I,  with  all  the  mills  running.  There  is  no  doubt  about 
that,  is  there? 

A.  To  fill  the  canal  ? 

Q.  Yes. 

A.  If  you  should  open  them  wide  enough  so  that  the  water  would 
stand  but  very  little  lower  on  the  downstream  than  on  the  upstream 
side. 

Q.  It  would  fill  the  canal? 

A.  It  would  raise  the  water  to  that  height. 

Q.  With  the  water  running  five  feet  over  the  dam,  I could  open 
the  head-gates,  if  they  had  capacity  enough,  so  as  to  entirely  over- 
flow the  canal,  couldn’t  I. 

A.  I should  judge  so. 

Q.  Then  does  not  the  height  of  the  water  in  the  canal,  if  there 
is  water  enough  in  the  river  to  fill  it,  depend  wholly  on  how  the 
gates  are  manipulated? 

A.  No,  sir.  The  height  at  Mr.  Wood’s  mill  depends  on  the 
quantity  of  water  the  mills  are  drawing,  if  they  are  drawing  more 
or  less. 

Q.  Suppose  I let  in  enough  more  than  they  could  draw.  I can 
do  that,  if  there  is  more  than  enough  in  the  river? 

A.  There  will  always  be  a certain  loss  aof  head  in  the  canal, 
apart  from  that  which  occurs  at  the  gates. 

Q.  That  depends  on  its  capacity  ? 

A.  On  the  amount  of  water  being  drawn  from  it. 

Q.  It  depends  on  the  capacity  to  furnish  the  amount  of  water 
being  drawn. 

A.  Yes,  sir. 

Q.  How  much  capacity,  if  you  had  water  enough  to  fill  it,  has 
the  Wamesit  Canal  for  carrying,  in  your  judgment? 

A.  I think  we  found  something  over  300  cubic  feet  per  second 
running,  when  the  water  was  above  the  cap  of  the  dam. 


640 


Testimony  of  Joseph  B.  Frizell. 


Q.  How  were  the  gates. 

A.  I don’t  know  anything  about  the  gates. 

Q.  Do  you  mean  to  say  that  you  have  been  up  there  measuring 
a month,  and  never  have  taken  into  consideration  how  high  the 
gates  were,  or  whether  they  were  clear  up,  or  clear  down? 

A.  I know  by  the  loss  of  head  that  occurs. 

Q.  When  you  took  the  loss  of  head  at  Mr.  Wood’s,  did  you  take 
the  loss  of  head  directly  at  the  head-gates? 

A.  No  nearer  than  Mr.  Faulkner’s  mill. 

Q.  And  whether  that  stood  substantially  at  the  height  of  the 
head-gates,  or  not,  you  don’t  know  ? 

A.  I did  not  observe  it  in  the  immediate  vicinity  of  the  gates. 

Q.  So  that  all  your  observations  lacked,  was  the  element  of 
knowing  how  the  gates  were  opened,  what  they  were  capable  of 
discharging  at  that  moment? 

A.  I could  not  tell  what  they  discharged  at  that  moment, 

Q.  Whether  they  discharged  enough  water  to  fill  the  canal  you 
don’t  know  ? 

A.  We  know  what  water  they  discharged. 

Q.  You  know  what  did  go  through  them? 

A.  Yes. 

Q.  But  whether  any  diminution  of  that  quantity  of  water  came 
from  the  gates  being  hoisted  too  little,  or  from  want  of  water  in  the 
river,  you  don’t  know? 

A.  I can  tell  you  something  about  that  by  the  height  of  the 
water  at  Mr.  Faulkner’s. 

Q.  How  high  would  the  water  be  at  Mr.  Faulkner’s,  supposing 
the  other  mills  were  drawing  and  my  head-gates  should  shut 
down? 

A.  If  shut  down  entirely  it  would  be  all  discharged  from  the 
canal. 

Q.  Suppose  they  were  shut  down  half  way  ? 

A.  I don’t  know  anything  about  that. 

Q.  That  is  exactly  what  I want  to  find  out : you  don’t  know  any- 
thing about  the  condition  of  the  gates,  and  can  you  know  anything 
about  the  amount  of  water  which  would  run  into  the  canal  without 
knowing  the  condition  of  the  gates? 

A.  I could  tell  you  the  loss  of  head  occasioned  by  the  gates 
approximately. 

Q.  That  would  depend  on  how  wide  open  they  were,  wouldn’t  it? 

A.  No  matter  what  it  depends  on,  I know  what  it  is. 

Q.  I know  what  it  is,  I know  3^011  know  what  it  is  ; that  is,  we 
know  something  how  water  stands  b}r  measurement.  All  of  us 
can  read  a gauge  that  have  good  eyesight,  but  do  }tou  know  what 
caused  it,  without  knowing  how  wide  the  gates  were  opened  ? 

A.  I should  not  be  able  to  separate  the  effect  of  the  friction  in 
the  canal,  from  the  effect  of  the  gates. 

Q.  You  would  not? 

A . No,  sir. 

Q.  Now,  sir,  did  }Tou  think  to  measure  another  thing : did  }rou 
measure  the  height  of  the  bottom  of  Mr.  Wood’s  canal,  or  level  of 
the  bottom  as  compared  with  the  level  of  the  rest  of  the  canal, 
whether  higher  or  lower  ? 


Testimony  of  Joseph  B.  Frizell. 


641 


A.  No,  sir  ; I did  not  measure  that. 

Q.  Well,  whether  he  got  a good  deal  of  water  or  very  little 
there  would  depend  on  whether  the  bottom  of  his  canal  was  higher 
or  lower  than  the  canal  leading  into  or  furnishing  its  supply,  when 
the  supply  was  low,  would  it  not? 

A.  He  could  draw  more  water  by  lowering  his  orifice. 

Q.  [Illustrating  by  a diagram.]  Suppose  that  that  line  repre- 
sents the  bottom  of  the  feeding  canal  down  to  the  end  of  the 
Wamesit  Company’s  land  and  this  line  represents  the  bottom  of 
Mr.  Wood’s  canal? 

Commissioner  Russell.  It  will  be  difficult  for  the  reporter  to 
get  that,  unless  you  describe  it. 

Q.  Supposing  a line  representing  the  bottom  of  the  Wamesit 
Company’s  canal  runs  in  an  inclination,  toward  the  lower  end  of 
the  canal,  of  two  degrees  while  the  line  of  Mr.  Wood’s  canal 
joining  on  shows  an  elevation  of  three  degrees? 

A.  Deflected  five  degrees  from  the  other? 

Q.  Yes.  Would  not  Mr.  Wood  find  himself  substantially  with- 
out water  when  the  others  might  have  substantially  enough  ? 

A.  Such  an  arrangement  of  the  canal  might  deprive  Mr.  Wood 
of  water  altogether. 

Q.  Do  you  know  that  that  exact  arrangement  don't  exist?  Did 
you  measure  to  find  out? 

A.  I measured  nothing  but  the  fall  of  the  water  at  the  surface  ? 

Q.  As  compared  with  the  fall  above?  Did  you  take  the  dif- 
ference between  the  fall  at  Mr.  Faulkner’s  and  the  fall  at  Mr. 
Wood’s? 

A.  I took  the  height  at  each  place  and  got  the  difference. 

Q.  Can  you  give  me  the  difference  at  the  time  you  say  it  was 
i6o8o  of  a foot  ? 

A.  I have  given  you  the  height  at  the  Wamesit  dam  at  different 
hours  on  the  19th  of  September. 

Q.  Take  it  the  moment  that  it  was  t6^8q. 

A.  That  was  at  10.38  to  10.40,  in  the  forenoon.  Between  10.27 
and  10.47  the  height  at  Mr.  Faulkner’s  was  43.10. 

Mr.  Shattuck.  That  was  before  any  other  measurements  at  an 
earlier  hour. 

Q.  I want  you  to  take  the  same  hour,  if  you  will,  Mr.  Frizell. 

A.  That  is  as  near  — 

Q.  Is  that  the  right  hour  ? 

A.  That  is  the  right  hour. 

Q.  Very  well ; then  we  will  go  on. 

A.  The  height  of  Mr.  Wood’s  was  observed  between  10.38  and 
10.40  ; the  height  at  Mr.  Faulkner’s  between  10.27  and  10.47,  and 
was  43.10. 

Q.  What  was  it  at  Mr.  Wood’s? 

A.  42.98,  making  a difference  of  twelve  one-hundreths  of  a foot 
between  them. 

Q.  What,  at  that  same  moment,  was  the  difference  between  Mr. 
Wood’s  and  the  dam? 

A.  tm)  about. 


642 


Testimony  of  Joseph  B.  Frizell. 


Q.  Now,  what  was  the  difference  between  Mr.  Faulkner’s  and 
the  water  at  the  dam? 

A.»  It  Was 

Q.  What  was  the  difference  at  that  time,  between  the  water  at 
the  head-gates,  the  lower  side  head-gates,  and  the  water  at  the 
dam  ? 

A.  That  I cannot  tell ; not  immediately  below  the  head-gates. 

Q.  I know.  There  was  nothing  drawing  at  that  time  from  the 
canal  between  Mr.  Faulkner  and  the  head-gates,  was  there? 

A.  I think  not. 

Q.  Very  well;  and  Mr.  Faulkner’s  was  far  below.  Now,  sir, 
do  you  know  whether  the  water  stood  four  inches,  five  inches,  or 
six  inches  lower  at  the  head-gates  on  the  lower  side  of  the  head- 
gates  than  it  did  above  ? 

A.  No,  sir. 

Q.  Do  you  know  it  is  the  policy  of  the  Wamesit  Compan}%  when 
water  is  short  — whether  it  was  the  policy  of  that  company  to  keep 
the  head-gates  down,  when  it  is  about  to  the  top  of  the  stone 
dam,  so  as  to  retain  the  surplus  water  made  by  the  flash-board? 

A.  I don’t  know  anything  about  the  policy  of  the  company. 

. Q Did  you  inquire? 

A.  No,  sir. 

Q.  Assuming  that  they  owned  the  difference  in  water  between 
the  top  of  the  flash-board  and  the  stone  dam,  that  is,  8 inches  of 
the  whole  pond,  and  they  want  to  keep  ft  for  themselves,  and  the 
other  company  owned  so  much,  the  other  part  of  the  stone  dam, 
the  way  to  save  it  would  be  to  put  the  gates  so  that  it  would  only 
discharge  the  water  that  was  running  even  with  the  stone  dam? 

A.  They  could  save  water  that  way. 

Q.  And  whether  they  adopted  that  expedient  it  never  occured 
to  you  to  observe?  If  they  were  saving  water  that  way,  and 
adjusted  the  matter  accurately,  it  would  bring  eight  inches,  would 
it  not  — and  the  water  was  at  the  top  of  the  flash-board  — it  ought 
to  bring  eight  inches  between  the  height  of  the  water  in  the  canal 
and  the  height  of  the  water  on  one  side  of  the  head-gates  and  the 
height  of  the  water  on  the  other  side  of  the  head-gates  ? 

A.  If  they  retained  the  water  in  the  pond  ? 

Q.  Yes.  If  they  did  it  accurately  it  would  make  that  difference, 
would  it  not? 

A.  If  they  retained  the  water  in  the  pond  at  the  height  of  the 
flash-boards  and  kept  it  in  the  canal  at  the  height  of  the  dam,  it 
would  make  that  difference. 

Q . And  whether  that  was  so  or  not  you  did  not  find  out? 

A.  I did  not  ascertain  that. 

Mr.  Storey.  Do  I understand  you  to  say  that  the  owners  of 
the  Wamesit  dam  were  only  entitled  to  one-quarter  part? 

Mr.  Butler.  At  the  dam.  If  you  should  find  any  other  title 
I should  be  glad  to  see  it. 

Mr.  Storey.  I did  not  know  what  your  position  was. 

Mr.  Butler.  You  are  to  draw  288  feet,  never  exceeding  that 
when  the  height  of  the  water  is  at  the  permanent  stone  dam,  and 
all  above  belongs  to  us.  We  are  to  keep  up  the  flash-board, 


Testimony  of  Joseph  B.  Frizell. 


643 


because  that  tends  to  keep  up  the  head.  You  don’t  own  the  water, 
and  my  construction  is,  that  the  Wamesit  Power  Company  own 
every  drop  of  water  above  288  cubic  feet,  and  you  do  not  own 
that  288  feet  except  when  it  is  running  at  the  height  of  the  stone 
dam. 

Mr.  Storey.  That  is  to  say  the  calculation  is  when  the  water 
is  at  the  height  of  the  stone  dam  it  will  deliver  288  feet? 

Mr.  Butler.  If  that  is  not  there,  then  it  will  deliver  as  much 
as  it  will. 

Q.  Now,  how  did  you  measure  the  water  at  Massic  Falls? 

A.  By  means  of  the  weir. 

Q.  Won’t  you  give  me  those  measurements  at  the  Massaic 
Falls?  You  used  the  weir  put  in  by  the  city  ? 

A.  Yes,  I used  the  weir  that  was  in  existence. 

Q.  Here  (showing  paper)  is  the  profile  of  the  height  of  the 
water.  Now,  will  you  have  the  kindness  to  see  whether  that  pro- 
file of  measurements  is  the  height ; whether,  between  the  dates 
that  you  took,  the  water  corresponds  with  your  measurement? 

A.  It  would  be  easier  to  make  the  comparison  by  means  of  the 
table,  if  you  have  got  one  there. 

Q.  Well,  sir,  I would  just  as  lief  you  would  have  one  as  the 
other.  There  (handing  paper)  are  the  tables,  and  if  you  will 
just  see  and  report  to  me  whether  you  regard  that  to  agree.  Now, 
Mr.  Frizell,  we  will  go  to  another  matter;  take  your  time  about 
that,  I want  that  done  with  accuracy.  Now  we  will  go  to  the 
Middlesex. 

Commissioner  Russell.  The  answer  to  that  question  is  sus- 
pended. 

Mr.  Butler.  Until  the  witness  gets  time. 

Q.  Now  let  us  go  to  the  Middlesex  dam.  How  did  you  ascer- 
tain the  quantity  of  water  actually  flowing  there  through  those 
Middlesex  wheels? 

A.  I did  not  ascertain  that  thing  at  that  time. 

Q.  When  did  you  ascertain  it? 

A.  I did  not  undertake  to  give  that  quantity  with  any  accuracy. 
I state  they  won’t  exceed  a certain  quantity. 

Q.  That  is  to  say  167  or  168  cubic  feet? 

A.  Yes,  sir. 

Q.  How  did  you  get  at  that  quantity? 

A.  That  was  the  result  of  a calculation,  or  a measurement  and 
calculation  which  I took  part  in  seven  or  eight  years  ago  to  ascer- 
tain the  quantity  at  which  — 

Q.  At  whose  request? 

A.  Mr.  Francis’  request. 

Q.  You  was  requested  by  Mr.  Francis,  for  what  purpose? 

A.  To  ascertain  the  quantity  to  which  the  Middlesex  Company 
were  entitled  under  their  deed. 

Q.  How  did  the  ascertainment  of  that  amount  actually  running 
through  their  gates  upon  two  breast-wheels  affect  the  amount  that 
they  were  entitled  to  in  the  deed.  Was  that  all  that  they  were 
entitled  to  in  the  deed? 

A.  I understood  they  had  deeds  stipulating  for  such  a quantity 
of  water  to  be  used  upon  such  and  such  wheels. 


644 


Testimony  or  Joseph  B.  Fpizell. 


Q.  What  were  thQse  “ such  and  such  ” wheels? 

A.  The  wheels  referred  to  in  the  deed  were,  I supposed,  to  be 
of  the  dimensions  of  the  wheels  existing  at  that  time. 

Q.  So  that  you  took  the  wheels  on  the  supposition  that  the 
wheels  referred  to  in  the  deed  were  identical  with  the  wheels  in 
existence  seven  or  eight  years  ago  ? 

A.  That  was  the  supposition. 

Q.  And  upon  that  supposition,  making  your  calculation  seven 
or  eight  years  ago,  you  got  these  168  cubic  feet?  What  wheels 
did  you  take  into  that  calculation  in  actual  existence? 

A.  There  were  three  breast- wheels,  about  twelve  feet  in  diam- 
eter ; the  aggregate  length  was  about  forty-five  feet,  as  I under- 
stand. And  then  in  addition,  they  were  entitled  to  sufficient  water 
to  run  a fulling-mill. 

Q.  In  1822,  at  the  time  the  deed  was  made? 

A.  That  was  the  problem,  to  find  how  much  water  could  be 
used  on  three  breast-wheels  and  a fulling-mill. 

Q.  How  much  water  could  be  used  on  a fulling-mill  in  1822? 

A.  That  is  almost  a matter  of  conjecture.  It  hardly  admits  of 
any  estimate. 

Q.  That  was  a matter  of  entire  conjecture  ? 

A.  Not  entirely  ; you  could  tell  whether  it  was  one  cubic  foot  or 
a hundred. 

Q.  Hardly,  could  you  ? 

A.  Yes. 

Q.  Because  one  cubic  foot  would  not  run  a fulling-mill  of  any 
sort  ? 

A.  I don’t  think  it  would. 

Q.  But  you  could  tell  whether  thirty  feet  would  run  some  sort 
of  a fulling-mill? 

A.  Oh,  3res. 

Q.  Under  the  old-fashioned  fulling-mill,  in  1822,  built  perhaps 
fifty  years  before  that,  it  might  take  much  more  than  a hundred  or 
two  hundred  feet? 

A.  Probably  not  more  than  ten  or  twelve  cubic  feet  would  be 
used  on  such  a machine  : it  might  be  wasted. 

Q.  You  know  what  I mean  when  I speak  of  a flutter-wheel, 
don’t  you,  — an  old-fashioned  wheel  in  a fulling-mill? 

A.  I never  heard  it  called  by  that  name ; I suppose  I under- 
stand what  you  mean. 

Q.  Never  heard  it  called  by  that  name?  It  is  a very  wasteful 
wheel  to  use  water  on. 

A.  It  is  an  under-shot  wheel,  with  plane  floats. 

Q.  Such  as  they  used  in  old  saw-mills? 

A.  Yes,  sir.  It  is  a very  wasteful  wheel. 

Q.  Now,  sir,  if  such  a wheel  was  used  in  that  fulling-mill,  have 
you  any  earthly  means  of  telling  that  it  did  not  dse  one  hundred 
or  two  hundred  feet  of  water  in  the  olden  time,  when  water  was  of 
no  consequence? 

A.  That  is  a matter  of  history  ; I know  nothing  about  the 
dimensions. 

Q.  Take  an  old-fashioned  saw-mill  flutter-wheel,  wouldn’t  it 
use  one  hundred  cubic  under  a ten-foot  head  ? 


Testimony  of  Joseph  B.  Frizell. 


645 


A.  I don’t  think  it  would.  It  would  not  ordinarily  be  capa- 
ble of  discharging  that  amount. 

Q.  But  how  much  it  did,  you  are  utterly  at  a loss  to  tell?  Now, 
sir,  how  much  did  you  allow  for  the  fulling-wheel?  In  the  first 
place,  how  much  did  you  allow  for  the  breast-wheel?  and,  then, 
how  much  did  you  allow  for  the  fulling-wheel? 

A.  I did  not  undertake  to  do  anything  more  than  to  find  the 
superior  limit  of  the  quantity. 

Q.  Well,  how  did  you  find  the  exterior  limits  of  the  quantity, — 
what  elements  did  you  take  into  calculation? 

A.  The  quantity  drawn  by  the  water-wheels  was  ascertained  by 
the  openings  of  the  gates  that  supplied  the  wheel,  and  the  head 
acting  thereon? 

Q.  What? 

A.  And  the  head  acting  upon  the  gates. 

Q.  That  is  to  say,  you  gave  the  gates  their  capacity,  and  under 
the  head  ? 

A • Yes,  sir. 

Q.  And  did  you  give  any  gates  their  capacity  that  were  not 
then  in  the  flow? 

A.  No. 

Q.  How  many  cubic  feet  did  that  make? 

A.  167  or  168,  after  adding  the  quantity  supposed  to  be  — 

Q.  How  many  did  that  make  on  the  gates?  Get  that  first, — 
give  me  those  figures.  How  many  cubic  feet  did  the  wheels 
take? 

A.  (Referring  to  paper.)  That  calculation  would  indicate  a 
discharge  of  about  159  cubic  feet  per  second.  All  I can  say 
about  that  is,  that  the  quantit}7  could  not  exceed  159  cubic  feet 
per  second. 

Q.  Then  what  measurements  did  you  take  to  ascertain  how 
much  the  fulling-wheel  would  take? 

A.  That  was  a matter  of  recollection  of  parties  that  had  seen 
it. 

Q.  Who  was  the  party? 

A.  I can  tell  you  by  searching  some  papers. 

Q.  Before  you  go  to  that,  for  whom  were  you  making  these 
measurements;  for  the  Middlesex  Company? 

A.  So  I understood  it.  The  quantity  of  water  drawn  bv  the 
fulling-mill,  the  capacity  of  the  fulling-mill  was  supposed  to  be 
equal  to  about  five  and  one-half  feet  of  breast-wheel,  twelve-foot 
diameter. 

Q.  How  many  cubic  feet  of  water  per  second  for  that? 

A.  I found  that  forty-five  feet  of  breast-wheel  discharged  not 
exceeding  158.  I find,  by  my  own  calculations,  that  forty-five 
feet  of  two  breast  wheel,  would  discharge  not  exceeding  158  cubic 
feet  per  second,  five  feet  would  discharge  one-ninth  of  that,  one- 
ninth  of  158  cubic  feet  per  second. 

Q.  And  that  is  how  much? 

A.  That  would  be  about  seventeen  and  one-half  feet  per  second. 

Q.  About  how  much  — seventeen  and  one-half  cubic  feet  per 
second  ? 


646 


Testimony  of  Joseph  B.  Frizell. 


A.  Something  like  that. 

Q.  And  the  fulling-mill  gave  you  seventeen  and  one-half  cubic 
feet  per  second;  add  that  to  159  we  should  have  167  or  168  cubic 
feet  per  second. 

Commissioner  Russell.  176J? 

Mr.  Butler.  Well,  about. 

The  Witness.  I am  confounding  two  measurements  ; the  result 
of  the  measurement,  as  we  figured  it  out  at  that  time,  amounted 
to  167  cubic  feet  per  second. 

Q.  What  was  it  that  gave  167  cubic  feet  per  second? 

A . What  gave  158  cubic  feed  per  second?  That  is  a separate 
calculation  of  my  own ; 1 took  the  same  data,  but  made  a little 
correction  in  the  head,  that  gave  you  158  cubic  feet  per  second. 

Q.  Pardon  me,  let  us  get  back.  How  much  did  you  find  the 
wheels  made  when  you  get  everything  as  correct  as  you  can 
get  it  ? 

A.  I don’t  undertake  to  say  that  this  is  correct.  * 

Mr.  Shattuck.  He  has  given  the  outside. 

Q.  How  much  do  you  find  is  the  outside  capacity  of  the  wheels 
that  are  there  now  ? Let  us  go  back  again. 

A.  I don’t  think  they  can  draw  more  than  150  cubic  feet  per 
second. 

Q.  The  wheels  that  are  there  now  ? 

A.  I cannot  say  what  the  wheels  there  now  discharge. 

Q.  The  wheels  that  were  there  when  you  made  your  calcu- 
lation ? 

A.  The  wheels  that  were  there  when  we  made  the  calculation 
could  not  have  discharged  much  over  150  cubic  feet  per  second. 

Q.  Their  outside  capacitj'.  Show  me  your  figures  again,  where 
3tou  got  159  ; let  us  see  if  they  vary  once  in  five  minutes.  You 
had  quite  a book  here  where  you  had  found  the  breast- wheel  158 
or  159. 

A.  The  calculation  made  in'  1867,  in  which  I took  part, 
showed  that  when  the  w7ater  wras  three-fourths  of  an  inch  above  the 
top  of  a fourteen-inch  flash-board,  at  the  lowest  part  of  the  dam, 
the  quantity  of  water  drawn  by  the  existing  wheels  would  be  very 
near  150  cubic  feet  per  second. 

Q.  Near  how'  much? 

A.  150. 

Q , Pardon  me,  I want  to  ask  you  that.  Go  back  to  the  cal- 
culation where  you  made  the  possibility  of  the  wheels  to  take  158 
or  159? 

A,  You  w’ant  the  calculation  ? 

Q.  I do  ; I want  your  calculation.  I don’t  want  everything  a 
theory  if  I can  help  it  from  time  to  time. 

A.  Here  is  the  calculation. 

Q.  Now  what  result  did  the}r  find  that  the  gates  would  carry? 
The  Middlesex  Company  wanted  to  use  all  the  water  they  could 
on  those  wheels. 

A.  The  result  of  this  calculation  is  158T7a6ff  cubic  feet;  call  it 
159 

Q.  Now,  then,  you  took  one-ninth  of  that  amount  for  the  full- 


Testimony  of  Joseph  B.  Frizell. 


647 


ing-mill  wheel,  which  was  not  then  there  and  had  not  been  since 
the  memory  of  man,  hardly? 

A.  No,  I simply  gave  you  the  result  of  the  calculation. 

Q.  I ask  you,  how  much  you  added  for  the  fulling-mill? 

A.  I added  water  equivalent  to  5 ^ feet  of  breast-wheel. 

Q.  What  did  you  make  that  equivalent  to  be? 

A.  That  would  be  equivalent  to  what  I gave  you.  I think  17J-. 

Q.  I observe  you  diminished  it  as  much  as  you  could  ; instead 
of  taking  159,  j^ou  divided  only  158  by  nine? 

A.  Yes  ; not  with  any  intention  of  diminishing  the  quantity. 

Q.  Without  any  intention,  but  was  not  that  the  fact?  Now, 
then,  you  made  that  17/^j.  Did  you  take  that  for  the  fulling- 
mill,  or  didn’t  you,  I don’t  care  a copper  which  you  say? 

A.  I am  simply  giving  you  the  result  of  a calculation,  that  I do 
not  place  any  sort  of  confidence  in  myself. 

Q.  You  were  there  to  find  out  how  much  water  the  Middlesex 
mills  had  a right  to? 

A.  I was  not  there  as  the  responsible  party. 

Q.  You  were  not  the  responsible  party  ? 

A.  Nothing  of  that  kind. 

Q.  Mr.  Francis  was  the  responsible  party? 

A.  That  was  so. 

Q.  Wasn’t  he  depending  on  you? 

A.  He  was  depending  on  me  to  make  measurements  and  com- 
putations. 

Q.  Did  you  mean  that  those  measurements  and  computations 
should  be  correct? 

A.  I did  at  that  time. 

Q.  You  did  at  that  time  ; don’t  you  believe  they  were  correct? 

A.  I think  there  should  have  been  a little  correction. 

Q.  You  think  now  there  should  be  some  correction.  When  did 
you  first  come  to  the  conclusion  that  there  should  be  some  correc- 
tion ? 

A.  The  first  time  I had  occasion  to  recall  the  subject  after  that. 

Q.  And  when  was  that ; after  you  got  your  retainer  from  the 
water-mills? 

A.  I don’t  receive  retainers. 

Q.  After  you  were  employed  by  them  — after  you  were  em- 
ployed by  the  water  men? 

A.  It  was  only  after  I was  employed^in  this  case  that  I had 
occasion  to  examine  the  subject. 

Q.  Then  you  thought  there  ought  to  be  some  corrections  made. 
What  corrections  did  you  come  to  the  conclusion  ought  to  be 
made? 

A The  computation  proceeded  on  the  assumption  that  the 
water  was  discharged  freely  into  the  wheel.  The  breast- wheel 
consists  of  a series  of  vessels  called  buckets,  arranged  on  a large 
drum,  which  revolves  in  close  proximity  to  a circular  envelope 
called  an  apron  or  breast.  Now  the  buckets  come  into  contact 
with  that,  filled  with  air,  and  there  is  no  provision,  as  I remember 
it,  for  the  escape  of  the  air.  The  displacement  of  the  air  in  those 
buckets  would  have  increased  the  pressure  under  the  orifices,  which 


648 


Testimony  of  Joseph  B.  Fkizell. 


would  amount  to  a diminution  of  head.  That  is  a matter  that  was 
not  taken  into  account. 

Q.  Didn’t  you  know  that  when  you  made  those  calculations  and 
measurements,  or  was  this  a subsequent  revelation  ? 

A.  I understood  the  principles  of  pneumatics  in  some  degree 
then,  but,  not  being  the  responsible  party,  my  duty  was  simply  to 
make  measurements  and  computations. 

Q.  Knowing  that  trouble  at  the  time,  didn’t  you  suggest  it  to 
your  principal? 

A.  It  did  not  occur-to  me.  If  it  had,  I should  have  suggested 
it. 

Q.  Are  there  any  tables  by  which  the  amount  of  that  diminution 
can  be  ascertained. 

A.  I do  not  know  of  any  tables. 

Q.  Are  there  any  formulas  ; if  so,  who  has  made  one  ? 

A.  The  principles  — 

Q.  I understand,  but  any  formula  laid  down  in  a book  for 
calculating  water  on  the  breast-wheel  caused  by  the  pressure  of 
air? 

A.  Some  of  the  ablest  writers  on  that  subject  mention  the  fact, 
and  say  there  is  a liability  to  error  by  not  taking  account  of 
the  air? 

Q.  When  it  was  measured  for  the  Middlesex  on  your  measure- 
ments, you  brought  it  out  about  178  or  179  cubic  feet ; but,  when 
you  measured  for  these  gentlemen  in  the  Boston  companies,  you 
bring  out  only  about  167.  Now  do  you  mean  to  say1  that  that  air 
would  make  ten  cubic  feet  per  second  difference  ? 

A.  That  is  not  correct. 

Q.  Don’t  you  make  it  170  odd,  176,  taking  your  calculation 
which  was  made  on  the  measurements  in  1867? 

A.  I make  it  when  I do  not  take  account  of  the  presence  of  air. 

Q.  I understand ; I do  not  ask  what  makes  the  difference,  but 
when  you  had  it  made  for  the  Middlesex,  — when  you  were  meas- 
uring then  for  the  Middlesex  — you  brought  it  up  for  some  reason 
(I  do  not  ask  the  reason)  at  176  or  177? 

A.  167. 

Q.  No,  sir,  177.  Giving  five  feet  of  breast-wheel  for  the  other 
wheel,  didn’t  3tou  make  it  out  so,  177  nearly? 

A.  The  result  of  your  calculations  you  have  got. 

Q.  Then,  wrhen  you  measured  it  for  the  Middlesex,  you  got  it 
177  ; now,  when  you  make  it  against  the  city,  you  make  it  167  or 
168.  That  is  so,  is  it  not? 

A.  That  is  not  so.  Neither  of  those  figures  I gave  you  are  in- 
tended — 

Q.  Neither  of  them  are  fit  to  be  depended  on  in  jmur  judgment ; 
is  that  so? 

A.  I mean  to  say  that  the  quantity  could  not  exceed  that 
amount.  That  is  all  I was  intending  to  show. 

Q.  Well,  did  you  think  the  pressure  of  the  air  from  the  buckets 
made  ten  cubic  feet  per  second  difference? 

A.  I think  it  is  liable  to  make  thirty  cubic  feet. 

Q.  On  those  buckets? 


Testimony  of  Joseph  B.  Frizell. 


649 


A.  Yes,  sir. 

Q.  Do  you  know  exactly  what  those  buckets  were  ? 

A.  I don’t  know  the  exact  measurement. 

Q.  Have  you  seen  a measurement  of  them  since  you  began  to 
operate  for  these  water-holders  ? 

A.  Ever  seen  what  ? 

Q.  Have  you  ever  seen  the  measurements  of  those  water- 
buckets? 

A.  I have  seen  the  records  of  those  measurements. 

Q.  Well,  now,  tell  me  is  there  any  other  reason  than  the  pres- 
sure of  the  air  on  the  bucket,  why  you  think  that  the  wheels 
cannot  take  now  more  than  167  cubic  feet,  and  they  could  take 
then  177  cubic  feet  or  thereabouts? 

A.  I did  not  state  that. 

Q.  You  say  this  is  all  they  could  take  then,  177? 

A.  No,  sir ; the  calculation  made  in  1867  showed  167  cubic  feet 
per  second. 

Q.  That  is  the  outside  capacity? 

A.  Yes,  sir. 

Q.  The  calculation  you  made  in  1867  showed  167  outside 
capacity,  did  it? 

A.  That  was  the  result  of  the  computation  that  was  made  ; it 
would  not  draw  any  more  than  that. 

Q.  Of  which  the  wheels  took  159  in  round  numbers? 

A.  150. 

Q.  Pardon  me.  The  outside  capacity  of  the  wheels  took  159, 
didn’t  it? 

A.  No,  sir ; that  was  not  the  calculation. 

Q.  That  was  not  the  calculation  ? 

A.  The  result  of  the  figures  that  I made. 

Q.  Then  }tou  did  not  calculate  in  1867,  by  possibility  that  the 
wheels  could  take  159,  did  you? 

A.  No. 

Q.  You  are  sure  about  that? 

A.  The  quantity  — 

Q.  Answer  that  question.  Did  you  calculate  by  any  possibility 
that  the  wheels  in  1867  could  take  159  cubic  feet,  or  thereabouts? 

A.  No,  sir. 

Q.  You  did  not? 

A.  No,  sir. 

Q.  Now,  sir,  didn’t  you  tell  me  that  you,  at  that  time,  calcu- 
lated the  possibility  of  the  flutter-wheel  or  fulling-mill  wheel  to  be 
five  feet  of  the  breast-wheel? 

A.  Five  feet  and  a half. 

Q.  Be  it  so  ; five  and  one-half  feet. 

A.  I did  not  make  any  assumption  about  it. 

Q.  Didn’t  you  tell  me  that  you  calculated  the  fulling-mill  wheel 
to  be  equal  to  five  feet  of  breast-wheel,  one-ninth  of  forty-five  feet? 

A.  I told  you  that  that  was  assumed. 

Q.  Very  well ; then  }tou  assume  that  to  be  so? 

A.  I did  not  say  that  I assumed  it. 

Q.  Well,  that  it  was  assumed  to  be;  but  you  went  into  your 
calculation  on  that  assumption  ; wasn’t  that  so  ? 


650 


Testimony  of  Joseph  B.  Frizell. 


A.  The  calculation  was  made  on  that  assumption. 

Q.  The  calculation  was  made  on  that  assumption.  Very  well, 
we  have  got  that  down.  Now,  sir,  if  you  calculated  the  possi- 
bility of  the  cubic  feet  of  water  to  be  taken  by  the  breast-wheel  to 
be  158  or  159,  why,  when  I asked  you  what  would  be  the  amount 
of  the  fulling-mill  did  30U  divide  158  by  9 in  your  own  figures? 
(Showing  paper  to  witness.) 

A . The  1 58t7^60  cubic  feet  per  second  is  the  result  of  a calcula- 
tion I have  made  a short  time  ago  from  the  data  obtained  in  1867, 
and  in  that  calculation  I made  a little  correction  for  the  head.  I 
can  explain  it  to  you  if  you  desire  to  know. 

Q.  Pardon  me,  — 

Commissioner  Russell.  Let  the  witness  answer.  I think  he 
should  be  allowed  to  answer  as  long  as  he  pleases. 

The  Witness.  The  orifice  through  which  the  water  is  discharged 
is  the  opening  between  the  sliding  horizontal  gate  and  the  side 
wall  of  the  flume.  (The  witness  made  a diagram.)  The  head 
acting  on  the  orifice  in  the  original  calculation  was  reckoned  from 
the  top  of  the  gate,  or  nearly  so  ; I took  it  from  the  bottom  of  the 
gate.  The  gate  was  some  inch  and  three-quarters  longer.  That 
added  a little  something  to  the  head,  and  increased  the  result. 
That  makes  the  difference  between  this  calculation  and  the  pre- 
ceding calculation. 

Q.  That  makes  the  difference  between  them  ; very  good.  Do 
you  want  to  explain  any  farther? 

A.  No,  sir. 

Q.  You  are  quite  satisfied  with  the  explanation  ; then  we  will 
go  on  with  the  examination.  But  I thought  you  told  me  that  it 
was  the  air,  and  now  it  is  the  thickness  of  the  gate  that  made  the 
difference  in  the  calculation,  — the  air  in  the  buckets? 

A.  I did  not  tell  you  that  it  made  the  difference  in  that  cal- 
culation. 

Q.  In  which  calculation  did  it  make  the  difference.  I have 
been  on  no  other  calculation  except  the  amount  which  these  wheels 
will  take. 

A.  I am  very  careful  to  say  that  the  results  of  these  calcula- 
tions indicate  the  extreme  limit  that  they  will  draw,  and  I ex- 
plained to  you  why  it  is  probable  that  they  would  not  draw  so 
much.  The  real  quantity  drawn  would  be  considerably  less. 

Q.  Now  leave  that  out  entirely,  for  I have  not  asked  you  about 
it,  and  I never  will,  so  that  you  never  need  to  come  to  that  again. 
But  why  the  extreme  limit  at  one  time  158  cubic  feet,  and  why  do 
you  give  me  that  as  a standard  to  get  at  the  fulling-wheel,  and 
another  time  you  give  it  to  me  less  ? 

A.  I did  not  give  it  to  you.  I did  not  make  the  calculation  for 
your  inspection  at  that  time. 

Q.  What?  Speak  a little  louder,  please. 

A.  That  is  not  the  calculation  I gave  to  }Tou. 

Q.  Not  158? 

A.  That  was  the  result  of  a calculation  that  I took  part  in, 
in  a subordinate  capacity. 

Q.  That  was  the  result  of  a calculation  that  you  took  part  in  ? 


Testimony  of  Joseph  B.  Fkizell. 


651 


Is  there  any  calculation  here  that  is  not  the  result  of  a calculation 
that  you  took  part  in  ? 

A.  No,  sir. 

Q.  Very  well.  Now  what  I want  to  get  at  is  why  do  the  ex- 
treme limits  of  the  capacity  of  the  gates  appear  in  your  calcula- 
tion made  in  1867  at  159  feet  for  the  gates,  and  17T404<y  for  the 
fulling-mill,  and  now  you  think  the  extreme  capacity  of  the  fulling- 
mill  and  wheels  are  only  167  or  168? 

A.  You  are  not  stating  it  correctly ; 167  cubic  feet  was  the 
result  of  the  calculation  made  in  1867,  and  the  other  is  the  result 
of  the  other  calculation. 

Q.  The  result  of  what,  was  the  other? 

A.  The  quantity  of  167  cubic  feet  was~the  result  of  the  calcu- 
lation made  in  1867  ; the  quantity  of  159  for  the  wheels  arid  seven- 
teen and  something  for  the  buckets,  is  the  result  of  the  present 
calculation. 

Q.  The  result  of  what? 

A.  Of  the  present  calculation. 

Q.  Which  is  right? 

A.  Neither  of  them  are  right. 

Q.  Now,  we  will  have  to  go  over  to  the  other  end  of  the  dam. 
Did  you  enter  into  any  calculation  to  ascertain  the  capacity  of  the 
gates,  of  all  the  gates  at  the  other  end  of  the  dam  ? 

A.  The  other  end,  of  Middlesex  dam? 

Q.  That  is  it. 

A.  No,  sir. 

Q.  And  why  not,  if  you  wanted  to^find  how  much  water  was 
used  at  that  dam? 

A.  I did  not  want  to  find  out  how  much  was  used,  at  least  I 
was  not  instructed  to  do  so. 

Q.  Wasn’t  you  expected  to  findTt.  Wasn’t  you  sent  there  to 
find  it? 

Mr.  Shattuck.  You  mean  what  he  was  sent  for  recently? 

Q.  What  you  were  sent  for  at  any  time  — all  times? 

Commissioner  Russell.  Mr.  Shattuck  means  to  inquire  whether 
in  1867? 

Q.  What  were  you  sent  for  to  do  over  the  dam.  You  got  one 
end  in  1867,  now  you  went  over  the  other  end. 

A.  To  ascertain  facts  bearing  upon  this  controversy. 

Q.  What  facts  were  you  to  ascertain  bearing  upon  this  contro- 
versy ? 

A.  One  thing  I was  asked  to  do,  was  to  ascertain  approximately, 
the  amount  of  power  called  for  by  the  machinery  of  Stott’s  mill, 
and  through  that  the  quantity  of  water  called  for. 

Q.  What  else? 

A.  I do  not  remember  anything  else  that  I was  especially 
desired  to  do. 

Q.  Were  you  desired  to  do  anything  else  at  all,  specifically  or 
generally,  particularly,  or  any  other  way? 

A.  It  was  understood,  generally,  that  I was  to  ascertain  facts 
bearing  upon  this  controversy. 

Q.  Well,  what  facts.  “ Facts  ” is  very  general ; surmise  would 
be  a fact ; what  facts  ? 


652 


Testimony  of  Joseph  B.  Frizell. 


A.  I think  that  was  the  only  thing,  the  only  specific  thing  that 
I was  asked  to  do 

Q.  The  only  specific  thing?  Did  you  do  anything  else  ; being 
asked  only  to  do  that,  did  you  volunteer  to  do  anything  else? 

A.  I made  a good  many  inquiries. 

Q.  Did  you  do  anything  but  inquire? 

A.  I went  inside  of  the  water-wheel  at  Stott’s  mill. 

Q.  That  was  to  ascertain  the  fact  about  Stott’s  water-wheel. 
Did  you  do  anything  else  except  to  ascertain  the  facts  about  Stott’s 
water-wheel  ? 

A.  I don’t  remember  anything  except  the  water-wheel. 

Q.  Can  you  give,  within  100  cubic  feet,  how  much  water  is  re- 
quired to  carry  the  mills  at  the  other  end  of  that  dam  ? 

A.  I presume  I could. 

Q.  Of  any  knowledge  of  what  you  have  now,  — not  what  you 
can  do  hereafter,  because  I don’t  inquire  into  possibilities,  — but 
can  you  tell,  now,  to-day,  that  you  know  within  100  cubic  feet  per 
second  how  much  water  is  required  to  carry  on  the  machinery  of 
all  the  mills  on  that  side  of  the  Concord  river? 

A.  Yes,  I could  say  within  less  than  that. 

Q.  Knowledge,  not  guess,  — I don’t  ask  that ; what  knowledge 
have  you  ; what  measurement  did  you  make  to  begin  with  ; what 
did  you  measure  besides  that  wheel  ? 

A.  I measured  nothing  else  accurately. 

Q.  What  else  did  you  measure  inaccurately? 

A.  I observed  the  penstocks  made  for  conveying  water  to 
the  mills. 

Mr.  Siiattuck.  He  has  not  been  examined  about  this. 

Mr.  Butler.  Oh,  yes,  he  has.  1 understood  this  witness  was 
put  on  to  swear  there  were  only  so  many  feet  put  on  the  Middlesex 
dam,  and  therefore  there  should  be  only  so  much  put  on  the  Wam- 
esit  dam. 

Mr.  Shattuck.  No. 

Mr.  Butler.  Pardon  me  ; you  opened  that  way. 

Mr.  Shattuck.  This  witness  was  asked  nothing  about  the  Mid- 
dlesex dam,  except  the  Stott’s  mill. 

Q.  Then  I want  this  fixed  now,  so  it  won’t  alter  hereafter.  They 
now  don’t  put  you  forward  as  a man  who  knows  anything  about  it. 
Do  you  know  anything  about  how  much  water  was  used  besides 
Stott’s. 

A.  I could  not  make  a very  accurate  estimate  of  the  quantity 
of  the  water  used,  and  have  no  means  of  knowing.  Do  you  say 
at  Stott’s? 

Q.  No,  sir  ; at  the  other  end  of  the  dam. 

A.  No,  sir ; the  whole  length  of  the  dam  I could  not  make  an 
accurate  estimate  of  the  quantity  of  water  used. 

Q.  Could  3rou,  from  any  data  jTou  have,  of  your  own  measure- 
ment, make  any  calculation  as  to  it ; not  any  guesses,  but  calcula- 
tion from  data  of  your  own  ; not  what  other  people  have  told  you? 

A.  No,  sir  ; I can  make  an  approximate  estimate  of  the  quantity 
used  by  Stott’s  mill,  but  take  the  aggregate  that  is  used  on  the 
dam,  I have  no  data  whatever. 


Testimony  of  Joseph  B.  Frizell. 


653 


Q.  No  data  whatever ; we  will  leave  that  alone,  then.  Now, 
sir,  you  have  made  the  height  of  the  fall  at  that  Middlesex  mill. 
How  high  were  the  flash-boards? 

A.  I suppose  thirteen  and  fourteen  inches ; thirteen  in  some 
places  and  14  in  others. 

Q.  That  was  to  make  a level  top  to  accommodate  inequalities 
of  the  dam  ? 

A.  I cannot  say  what  it  was  for. 

Q.  Did  they  make  a level  top  to  the  dam? 

A.  I cannot  say. 

Q.  Was  the  water  running  over  the  whole  length  of  the  dam? 

A.  It  did  at  times. 

Q.  When  you  took  the  head? 

A.  I took  the  head  a great  many  times  ; I took  the  height  of 
the  surface  of  the  water,  below  the  dam,  and  above  it. 

Q.  Kept  up  by  a thirteen-inch  flash-board  or  a fourteen-inch 
flash-board  ? 

A.  The  flash-boards  used  were  in  some  parts  thirteen  inches, 
and  in  some  parts  fourteen  inches. 

Q.  How  much  of  the  length  of  the^dam  was  fourteen  and  how 
much  thirteen? 

A.  I cannot  say  anything  about  that. 

Q.  If  the  water  was  running  over  at  all  it  would  make  a differ- 
ence, wouldn’t  it,  about  the  height  of  the  head? 

A.  It  would  make  a very  slight  difference. 

Q.  Now,  then,  with  a thirteen  or  fourteen  inch  flash-board,  how 
high  did  you  make  the  water  in  the  top  of  that? 

A.  The  water  even  with  the  top  of  that?  I don’t  know  as  I 
have  any  observation  when  the  water  was  even  with  the  top  of  the 
flash-board. 

Q.  I want  to  get,  if  I can,  where  you  made  the  limit  of  the 
rightful  head? 

A.  The  rightful  head  I know  nothing  about ; I measured  the 
actual  head  at  that  time. 

Q.  Where  did  you  make  the  limit  of  the  head,  from  which  you 
calculated  the  fall?  I take  it,  in  order  to  measure  a fall,  you  must 
find  some  place  to  start  from. 

A.  Yes.  We  started  from  the  surface  of  the  water  below  the 
dam,  and  measured  to  the  surface  of  the  water  above  the  dam. 

Q.  Then,  in  order  to  find  what  the  effective  head  and  fall  of  the 
mill  is,  all  you  have  to  do  is  to  take  the  surface  of  the  water  at  the 
head  of  the  dam,  above  the  dam,  and  the  surface  of  the  water  below? 

A.  I believe  that  is  what  is  ordinarily  understood  by  head  and 
fall. 

Q.  Well,  sir,  will  you  answer  my  question  now?  Do  you  mean 
to  say  that  in  order  to  find  out  the  effective  head  and  fall  on 
the  mill  you  only  have  to  take  the  difference  of  the  water  above 
the  dam,  and  below  the  dam? 

A.  The  mill  does  not  necessarily  use  all  that  falls  ; it  might  not 
be  the  effective  fall. 

Q.  An  effective  fall  that  could  be  used? 

A.  That  would  show  all  the  fall  that  the  mill  was  capable  of 
using. 


654 


Testimony  of  Joseph  B.  Feizell. 


Q.  Without  any  reference  to  the  actual  stage  of  the  water  when 
you  took  the  head  and  fall,  would  that  be  so? 

A.  It  would  show  the  head  they  were  capable  of  using  at  that 
time. 

Q.  That  is  not  the  question.  Whether  this  measurement  of  the 
. difference  between  the  water  above  and  the  water  below  would 
show  the  effective  head  of  the  mill,  without  reference  to  the  height 
of  the  water? 

A.  No,  sir ; it  would  not  show  an  average  for  all  time. 

Q.  Have  you  any  measurements  that  will  show  what  is  the 
actual  head  and  fall  which  a man  has  a right  to  rely  on,  on  the  Mid- 
dlesex dam. 

A.  I don’t  know  anything  about  any  man’s  rights. 

Q.  But  which  a man  ought  to  rely  on  if  he  was  going  to  buy  it. 
I suppose,  if  a man  goes  and  buys  a mill,  he  wants  to  know  what 
the  head  and  fall  is? 

A.  I do  not  imagine  the  head  and  fall  differed  very  much  from 
our  results  during  the  summer  season. 

Q.  Well,  what  I want  to  get  at,  if  I can,  Mr.  Frizell,  is  some- 
thing that  you  measured  from,  so  that  I can  verify,  if  I can,  your 
measurements  ; but,  if  you  say  you  measured  only  for  the  water 
as  it  was  running  on  a given  day,  it  would  be  difficult. 

A.  I can  give  you  the  height  of  the  water  as  compared  with 
known  heights  at  Lowell.  On  the  20th  of  September,  at  half-past 
eight  in  the  morning,  the  height  of  the  water  just  above  the 
dam  was  lOy5^  feet  above  the  zero  of  the  locks  of  the  canal 
scale. 

Q.  Taking  that  as  the  datum  ? 

A.  Yes,  sir ; and  the  height  below  the  dam  was  T706<y  of  a foot 
below  zero.  You  add  those  heights  in  order  to  get  the  fall. 

Q.  That  is,  you  found  the  water  at  that  date  lOy5^  feet  above 
the  zero  of  the  locks  of  the  canal  scale,  which  is  taken  there  for  a 
data  of  low  water,  and  adding  the  of  a foot  which  the  water 
actually  was  at  the  time  below  at  that  data,  and  you  give  us  how 
much? 

A.  11^  fall. 

Q.  Now,  that  head  and  fall  would  only  apply  when  the  water 
was  below  the  scale  which  is  established  there  as  low  water,  is  it 
not  — zero  ? 

A.  I don’t  know  as  it  was  established  as  low  water.  It  is  the 
one  which  the  proprietors  of  locks  and  canals  worked  from  in  all 
their  levels. 

Q.  Suppose  we  want  to  know  what  the  fair  low-water  mark  is  ; 
that  is,  working  on  a level? 

A.  I don’t  know  that  the  data  was  established  with  any  refer- 
ence to  low  water ; it  is  reasonable  to  suppose  that  it  was. 

Q.  You  have  no  reason  to  suppose  that  it  was? 

A.  I have  no  reason  to  suppose  that  it  was  established  as  the 
low  water. 

Q.  Did  you  get  anywhere  near  the  average  of  the  low  water? 

A.  It  evidently  is  pretty  near  it. 

Q.  Yes ; it  happened  by  accident  to  get  to  that  position,  but 


Testimony  of  Joseph  B.  Frizell. 


655 


without  any  design.  Finding  a thing  well  adapted  to  a purpose, 
you  don’t  infer  a design  and  maker? 

A.  I presume  that  it  was  established  with  that  view. 

Q.  Now,  then,  do  you  believe  that  with  10-inch  flash-boards 
holding  the  water  at  the  top  of  the  dam  there  is  more  than  10  feet 
fall  at  the  Middlesex  in  average  low  water? 

A.  With  10-inch  flash-boards  holding  the  water  at  the  top  of 
the  flash-boards? 

Q.  Holding  the  water  at  the  top  of  the  flash-boards  ? 

A.  I should  think  there  would  be  more  than  10  feet. 

Q.  How  much? 

A.  I should  think  there  would  be  nearly  11  feet ; I should  think 
there  would  be  quite  11  feet  during  the  summer  months  while  the 
flash-boards  were  retained. 

Q.  Well,  we  have  got  this  fall  established  as  near  as  we  can. 
Now,  then,  we  have  some  measurements  for  only  two  years  in  the 
very  dry  months  of  the  flow  of  the  water  in  Sudbury  river.  Do 
you  think  those  measurements,  as  an  engineer,  would  be  of  any 
value  to  determine  the  amount  of  water  running  in  Sudbury  river 
for  a series  of  years  ? 

A . It  depends  on  how  long  they  were  continued. 

Q.  Assuming  that  we  have  got  already  in  the  dry  months, 
measurements  of  the  water  accurately  taken  in  Sudbury  river  for 
two  years,  — and  only  two  years  unfortunately, — do  you  think 
that  that  would  be  a single  measurement  to  found  a calculation 
upon  which  could  be  relied  upon  at  all  to  ascertain  the  amount  of 
water  that  would  run  in  Sudbury  river  in  the  corresponding  months 
for  a series  of  years;  would  it  be  valuable? 

A.  It  would  be  valuable  ; I should  say  that. 

Q.  It  would  be  valuable  ; but  how  valuable?  Could  you  rely 
upon  it  with  any  considerable  degree  of  certainty? 

A.  It  is  entirely  impossible  to  predict  the  flow  of  the  water  for 
any  given  year  from  any  data. 

Q.  Suppose  up  to  Sudbury  river  that  they  only  got  an  acccurate 
measurement  that  you  can  swear  to  for  one  year,  and  that  an  ex- 
ceptionally dry  year,  would  you  think  that  that  would  be  any 
reliable  data  from  which  we  can  make  a calculation  of  the  average 
supply  of  water  in  Sudbury  river,  on  which  men  ought  to  act  in 
the  high  concerns  of  life  ? 

A.  I say  that  I think  it  would  be  valuable. 

Q.  Do  }'Ou  think  it  is  one  upon  which  you  could  rely  with  any 
certainty  to  get  at  the  average  flow  of  water? 

A.  If  I was  endeavoring  to  get  at  the  actual  flow  of  water,  I 
should  be  very  glad  to  have  that  measurement. 

Q.  I agree  that  it  would  be  an  aid.  I want  to  get  at  — upon  a 
calculation  based  upon  that  measurement  — what,  in  your  judg- 
ment as  an  engineer,  is  the  fair  flow  of  water  in  Sudbury  river? 

A.  I understand  you  to  say  that  the  measurement  was  made 
merely  for  a year? 

Q.  No  ; it  was  measured  for  a year  during  the  exceptionally 
dry  months,  and  it  unfortunately  happened  to  be  in  an  exception- 
ally dry  year. 


656 


Testimony  of  Joseph  B.  Fkizell. 


A.  The  result  in  a dry  year  would  not  indicate  the  flow  in  an 
ordinary  year. 

Q.  That  I knew  ; but  what  I want  is  to  get  your  opinion  of  the 
value  of  such  facts  in  getting  to  the  true  amount  of  the  water 
which  Sudbury  river  would  supply. 

A.  I think  such  a measurement,  made  in  connection  with  obser- 
vations of  the  rain-guage,  would  be  an  important  aid  in  determin- 
ing the  — 

Q.  But  would  that,  by  itself,  suppose  it  to  be  taken  in  connec- 
tion with  the  rain-guage,  would  you  be  willing  to  purchase  a water 
power  on  the  strength  of  that  measurement  alone  ; but  made  in  an 
exceptionally  dry  year,  in  the  dry  months,  what  water  appeared 
in  it? 

A.  I should  certainly  be  willing  to  take  the  water-power  upon 
the  basis  of  any  such  a measurement. 

Q.  That  is  taking  that  as  the  maximum  ; but  would  you  be 
willing  to  sell  a water-power  on  that  basis  ? 

A.  Hardly. 

Q.  And  you  think  a man  would  be  anything  but  prudent  who 
should  base  his  action  of  selling  a water  power  upon  such  a slen- 
der basis? 

A.  Yes,  sir. 

Q.  Well,  I’m  very  much  obliged  to  you,  Mr.  Witness.  What 
would  you  say  to  thirty  days’  measurement ; that  would  be  worse, 
that  would  be  one-third  as  valuable  as  three  months  ? 

A.  That  certainly  does  not  afford  an  entirely  reliable  indica- 
tion. 

Q.  It  don’t  afford  any  indication  at  all,  does  it? 

A.  It  is  much  better  than  nothing. 

Q.  What? 

A.  It  is  a great  deal  better  than  nothing. 

Q.  About  equal  to  nothing  multiplied  by  two  ? 

A.  It  diminishes  the  uncertainty. 

Q.  But  you’d  hardly  expect  a man  to  sell  his  water-power  based 
on  such  a statement? 

A.  No,  sir ; but  if  he  hadn’t  any  other  indication,  it  would  be 
the  best  indication. 

Q.  Now,  sir,  tell  me  what  other  indication  you  have  of  the 
amount  of  water  running  over  Wamesit  dam,  except  thirty  days’ 
measurement  of  the  dryest  month,  in  the  dryest  }Tear  that  we  have 
had  for  a long  time  ? 

A.  I do  not  understand  this  to  be  the  dryest  year  that  we  have 
had. 

Q.  Do  you  understand  any  dryer  time  there  has  been  than  be- 
tween the  24th  of  August  and  the  25th  of  September?  Do  you 
understand  a dryer  season  than  that  for  a series  of  seasons?  Do 
you  have  any  dryer  now,  in  memory? 

A.  I do  not  think  that  was  the  dryest  time  there  has  been  for  a 
series  of  years,  by  any  means.  There  was  two  and  a half  inches 
fell  at  one  time. 

Q.  Well,  that  is  the  only  thing  that  fell,  isn’t  it? 

A.  Nearly. 


Testimony  of  Joseph  B.  Frizell. 


657 


Q.  Now,  sir,  in  the  months  of  August  and  September,  com- 
mencing the  25th  of  one,  and  the  24th  of  the  other,  is  not  the 
average  rainfall  about  seven  inches,  — a fraction  less  than  seven 
inches,  — for  a series  of  years? 

A.  In  the  month  of  August? 

Q.  Between  the  24th  of  August  and  the  25th  of  September. 
Won’t  you  find  that,  taking  the  average  of  years  being  about  forty- 
one  or  forty-two  in  the  course  of  the  whole  year,  to  be  about 
seven? 

A.  I should  think  it  would  hardly  be  as  much  as  that. 

Q.  Set  it  at  how  much  you  think  the  average  would  be,  then 
we  will  get  at  your  knowledge  of  rainfall  and  gauges.  I don’t 
care  where  you  put  it,  put  it  where  you  like. 

A . The  month  of  August,  I think,  on  the  agerage,  shows  a 
little  higher  aggregate  rainfall,  a little  above  the  average  of  the 
months. 

Q.  What  is  above  the  average  of  the  months? 

A.  The  rainfall  for  the  month  of  August. 

Q.  Is  generally  above  the  average  of  the  months  of  the  year, 
do  you  mean  ? 

A.  That  is  my  impression. 

Q.  You  think  the  rainfall  in  August  is  above  the  average  of  the 
months  of  the  year? 

A.  I think  it  is  a little  above,  as  a general  thing. 

Q.  How  is  it  in  the  latter  part  of  September,  how  is  the  month 
of  September? 

A.  I cannot  say  from  memory. 

Q.  It  so  happened  that  all  the  rain  that  fell  this  year  was  in  the 
month  of  September,  about  the  18th  or  19th. 

A.  I think  not. 

Q.  I wish  you  would  give  me  that ; we  won’t  stop  now,  because 
you  want  to  speak  with  accuracy.  Give  me  the  average  for  the  last 
ten  years,  the  rainfall  between  the  24th  of  August  and  the  25th  of 
September  ? 

A.  I can  do  it  if  you’ll  wait. 

Q.  You  can  do  it?  I know  you  can,  and  I guess  with  that,  I 
won’t  have  to  trouble  you  any  longer. 

A.  I can’t  give  you  that  now.  In  order  to  do  what  you  have 
required,  I should  have  to  take  several  hours. 

Q.  Well,  you  need  not  do  it  until  to-morrow  morning,  if  jtou 
will. 

A.  I will  give  it  to  you  to-morrow  morning. 

Mr.  Butler.  I think  that  will  do.  One,  thing  — have  it  on 
paper,  and  see  it  is  correct,  and  we  will  put  it  right  into  the 
book. 


Re-direct  examination. 

Q.  (By  Mr.  Shattuck.)  I understood  you  to  say  yesterday, 
that  from  your  observation  you  considered  the  flow  of  the  Wamesit 
dam  225  feet  per  second  ? 

Mr.  Butler.  In  answer  to  who?  Not  to  me,  sir.  I have  not 
asked  him  that  question. 


658 


Testimony  of  Joseph  B.  Frizell. 


Mr.  Shattuck.  No,  but  that  is  only  a part  of  the  question. 
It  is  brought  out  by  your  cross-examination  ; you  will  see  how. 

Mr.  Butler.  Well,  I have  heard  this  end  of  it,  and  to  that  I 
object. 

Q.  You  stated  in  answer  to  General  Butler,  that  that  was  your 
opinion  of  the  effective  flow  before  the  taking ; what  is  your 
opinion  of  the  effective  flow  since  the  taking? 

Mr.  Shattuck.  (Addressing  Mr.  Butler.)  You  asked  him  as 
to  when  he  made  his  calculation,  what  he  took  into  account  before 
and  what  since.  (Addressing  the  Witness.)  Will  you  state 
that? 

Mr.  Butler.  I don’t  understand  that  question  now. 

Mr.  Shattuck.  You  do  not  listen. 

Mr.  Butler.  Now  if  you  will  state  the  question  from  the 
beginning? 

Mr.  Shattuck.  If  you  will  give  me  a chance  to  put  the  whole 
of  it  together. 

Q.  Now  Mr.  Frizell,  what,  from  your  observation,  in  your  judg- 
ment, would  you  consider  the  effective  flow  of  the  Concord  river  at 
the  Wamesit  dam,  since  the  taking? 

Mr.  Butler.  I object  to  that  question.  It  is  no  answer  at  all  to 
any  question  that  is  put. 

Mr.  Shattuck.  The  commissioners  will  remember  that  several 
questions  were  put  by  General  Butler,  bearing  on  what  elements 
he  considered,  and  whether  he  was  estimating  before  taking,  and 
whether  he  got  the  basis  of  calculation  made,  etc.,  leaving  the 
matter  as  I thought  not  quite  as  clear  as  it  ought  to  be,  and  there- 
fore I put  this  question  to  him. 

Mr.  Butler.  I have  not  asked  his  opinion,  however ; I have 
asked  him  generally  as  to  the  amount  of  the  flow.  I have  asked 
him  questions  in  regard  to  the  opinion  which  he  gave  to  Mr.  Shat- 
tuck. That  don’t  open  to  a re-examination,  by  asking  his  opinion 
over  again. 

Mr*.  Shattuck.  No,  I am  not  asking  it  over  again. 

Mr.  Butler.  Pardon  me  ; you  have  asked  him  over  again. 

Commissioner  Russell.  I have  not  a full  report  of  the  evidence 
that  has  been  taken  on  the  point  which  jtou  say  Gen.  Butler  ex- 
amined upon.  He  says,  u I made  my  measurements  calculating 
that  the  water  had  been  diverted.  I calculated  the  rainfall  with- 
out deduction  for  any  taking.  I made  no  allowance  in  the  esti- 
mate for  water  having  been  diverted.”  That  is  to  sa}T,  that  he 
used  those  elements  in  making  his  computation,  speaking  of  the 
flow  before  the  taking. 

Mr.  Shattuck.  That  requires  explanation. 

Mr.  Butler.  I am  content  that  he  should  explain  it,  but  the 
question  is  not  to  call  for  his  opinion  ; it  is  not  within  the  legiti- 
mate re-examination.  I ask  a man,  “You  have  given  me  your 
opinion  about  a certain  matter.  Now,”  I say,  “ what  elements  do 
you  put  into  that  opinion?”  He  gives  them  to  me.  Or,  “ What 
did  you  leave  out  ? ” He  gives  them  to  me.  Then  it  is  not  com- 
petent on  re-examination  to  ask  him  his  opinion  over  again. 

Mr.  Shattuck.  I am  not  asking  the  same  opinion  over  again, 


Testimony  of  Joseph  B.  Frizell. 


659 


but  to  show  exactly  what  his  opinion  referred  to  before.  That 
which  has  just  been  read  by  the  Chairman  leads  to  obscurity. 

Commissioner  Russell.  If  you  can  direct  his  attentiorf  to  that, 
you  can  do  so ; but  it  seems  to  me  that  you  are  now  intending  to 
ask  a question  which  might  have  been  asked  on  direct  examina- 
tion. 

Mr.  Shattuck.  It  would  not  have  been  asked  if  there  had 
not  been  obscurity  created  by  the  peculiar  nature  of  the  explana- 
tion. 

Commissioner  Russell.  I think  you  can  get  an  explanation  of 
the  answer  to  those  questions. 

Q.  Well,  will  you  explain  then  your  calculation? 

Mr.  Butler.  What  calculation  ? 

Q.  The  calculation  from  which  you  got  at  225  feet  per  second 
as  the  effective  flow  of  the  Concord  river  to  Wamesit  mills. 

Commissioner  Russell.  I should  prefer  to  have  what  he  testi- 
fied to  on  that  point  read  from  the  full  minutes. 

Mr.  Butler.  I am  going  to  recall  him  to-morrow. 

Mr.  Storey.  Sufficient  has  been  read  to  suggest  to  the  witness 
the  explanation  which  he  desires  to  make ; I do  not  know  why 
that  is  not  sufficient. 

Commissioner  Russell.  If  }tou  will  call  the  witness’s  attention 
to  any  answer  which  the  witness  made  on  Gen.  Butler’s  cross- 
examination. 

Mr.  Storey.  (Addressing  Commissioner  Russell.)  You  read 
just  now  two  passages  from  his  examination. 

Mr.  Butler.  Suppose,  for  the  matter  of  convenience,  Mr. 
Shattuck,  we  will  wait  until  to-morrow  morning. 

Commissioner  Russell.  We  can  probably  send  for  the  full 
minutes  of  the  examination.  [The  reporter  who  took  this  part  of 
the  testimony  was  absent.] 

Mr.  Shattuck.  The  only  thing  I care  for  is  what  the  Chairman 
just  read. 

Mr.  Butler.  I would  just  as  lief  have  any  testimony  that 
you  [Commissioner  Russell]  have  got  down. 

Commissioner  Russell.  The  only  minutes  I have  are,  “ I made 
my  measurements  calculating  that  the  water  had  been  diverted.  I 
calculated  the  rainfall  without  deduction  for  any  taking.  I made 
no  allowance  in  the  estimate  for  the  water  having  been  diverted.”- 

The  Witness.  “ I made  no  allowance  in  the  estimate  for  the 
water  being  diverted.”  My  measurements  were  made — measure- 
ments and  computations  having  been  made  under  the  impression 
that  the  water  of  Sudbury  river  has  been  diverted  during  the  time 
of  my  measurements. 

Q.  Do  you  mean  during,  or  before  ? 

A.  During,  while  my  measurements  were  going  on ; that  is, 
that  my  results  don’t  include  the  waters  of  Sudbury  river.  The 
estimate  of  the  water  available  at  Wamesit  dam  assumes  that  the 
Sudbury  is  not  diverted. 

Q.  That  is,  the  225  feet  per  second  was  the  available  effective 
flow  before  the  diversion  of  the  Sudbury  ? 

A.  Yes. 


660 


Testimony  of  Joseph  B.  Frizell. 


Q.  How  much  was  it  after  the  diversion  of  the  Sudbury,  based 
on  actual  measurement? 

Mr.  Butler.  Pardon  me  : I think  that  is  re-examination. 

Mr.  Shattuck.  I think  it  is  necessary  in  order  to  make  this 
plain. 

Commissioner  Russell.  Let  the  witness  state  it. 

Mr.  Butler.  Very  well,  I won’t  even  take  an  exception. 

The  Witness.  It  was  thought  that  the  available  quantity  after 
the  diversion  of  the  Sudbury  would  be  about  180  cubic  feet  per 
second  at  Wamesit  dam.  This  must  be  understood,  that  that  was 
the  quantity  that  could  be  drawn  in  the  daytime  under  the  exist- 
ing arrangements  for  drawing  it  in  the  night. 

Q.  It  is  above  the  average  flow  of  twenty-four  hours,  I under- 
stood you? 

A.  Oh,  yes. 


Re-cross  examination. 

Q.  (By  Mr.  Butler,)  Mr.  Frizell,  what  would  be  the  average 
flow,  in  your  judgment,  of  the  Wamesit  dam  in  the  canal,  provided 
the  water  was  drawn  off — was  drawn  down  over  night  — by  using 
at  night  so  as  to  be  at  the  level  of  the  stone  dam  in  the  morning? 

A.  I cannot  answer  that  without  some  examination  of  my 
results. 

Q.  I wish  you  would  examine  that  result.  Suppose  that  in 
practice  the  water  was  drawn  dowrn  overnight  to  the  top  of  the 
stone  dam  so  as  to  leave  it  at  the  stone  dam  at  half-past  six  in  the 
morning,  to  be  used  in  the  daytime  by  the  taking  of  the  water  on 
the  canal.  It  is  a question  I omitted. 

A.  I will  give  you  that  with  the  other  things  that  you  call 
for. 

Mr.  Butler.  Yes,  sir,  thank  you. 


Re-direct  examination. 

Q.  (By  Mr.  Shattuck.)  I was  going  to  ask  Mr.  Frizell  to 
give  the  average  from  this  (producing  map  used  by  the  counsel 
for  the  city)  of  the  flow  between  the  6th  of  July  and  the  30th  of 
July. 

Mr.  Butler.  We  are  going  to  put  in  the  average  from  the  6th 
of  July  to  the  24th  of  September. 

Mr.  Shattuck.  I know  ; but  I want  to  have  him  give  it  here. 
You  put  the  map  in,  did  you? 

Mr.  Butler.  There  are  some  other  data  which  we  wish  to  put 
on  it. 

Mr.  Child.  Put  it  right  on  the  map. 

Mr.  Butler.  Very  well,  I will  withdraw  it. 

Mr.  Shattuck.  I don’t  think  you  can  show  a witness  a paper, 
and  then  withdraw  it. 

Mr.  Butler.  I handed  it  to  the  witness,  and  took  it  right  back 
again.  He  said  that  he  would  rather  have  the  tables. 

Commissioner  Russell.  I think  the  table  was  substituted, 


Testimony  of  Joseph  B.  Frizell. 


661 


according  to  my  recollection,  for  that,  and  there  is  no  use  for  that 
whatever. 

Mr.  Butler.  I assure  you,  you  will  have  those  data  before  we 
get  through,  because  I think  the  time  has  come  to  burst  this 
bubble. 

Mr.  Shattuck.  I think  that  paper  was  produced  and  offered. 
The  witness  referred  to  the  table,  but  the  other  was  not  taken  back 
at  all. 

Commissioner  Francis.  The  witness  did  not  examine  it  at  all. 

Mr.  Shattuck.  He  looked  at  it,  and  said  he  should  prefer 
tables,  but  it  was  not  withdrawn. 

Commissioner  Russell.  He  looked  at  it  and  said  he  should 
prefer  the  tables,  and  finally,  I think,  the  paper  was  withdrawn 
from  the  witness. 

Mr.  Butler.  I did  not  object  to  my  brother  seeing  it,  studying 
and  looking  it  over,  but  I don’t  think  that  made  it  evidence. 

Mr.  Child.  If  you  have  it  in  as  testimony  we  want  it  to  go  in 
as  perfect  testimony. 

Mr.  Butler.  I am  content  that  by  and  by  you  shall  see  it,  and 
that  it  agrees  with  your  tables. 

Mr.  Shattuck.  Ours  begins  the  6th  July.  Is  this  paper  con- 
sidered in  ? 

Mr.  Butler.  I think  it  is.  Yes,  sir,  that  is  in  ; he  is  going  to 
make  a calculation  from  it. 

Commissioner  Russell.  That  has  been  shown  to  the  witness, 
and  he  is  going  to  make  a computation  from  it. 

Mr.  Butler.  He  is  going  to  make  a computation  to  see  if  the 
calculation  is  right.  That  is  in  for  any  possible  use  you  can  make 
of  it. 

Mr.  Storey.  You  do  not  say  that  that  is  evidence? 

Mr.  Butler.  Not  at  all.  If  you  want  it  as  evidence,  have  it 
as  evidence.  If  you  want  it  in  now,  settle  it. 

Mr.  Shattuck.  I do  not  care  to  decide  the  question  now. 

Mr.  Butler.  Then,  at  present,  it  is  a calculation  which  I ask 
the  witness  to  verify  for  my  own  instruction. 

Mr.  Storey.  Assuming  that  the  basis  of  the  calculation  is 
correct  ? 

Mr.  Butler.  Yes,  sir. 

Mr.  Storey.  I did  not  understand  that  you  offered  it  assuming 
that  the  calculation  was  correct. 

Mr.  Butler.  No,  I did  not  do  that,  but  I am  going  to  put  it 
in  as  coirect,  when  I lay  a basis  with  my  testimony.  Those 
tables  are  in  from  the  6th  of  July. 

Mr.  Shattuck.  Those  are  the  same  as  the  map.  They  are 
more  convenient  to  look  at. 

Mr.  Storey.  I desire  to  have  it  distinctly  understood  in  regard 
to  facts  being  proved  by  the  papers. 

Commissioner  Russell.  I do  not  understand  that  the  papers 
were  in  the  case  as  testimony,  but  they  are  in  the  case  to  be  used 
by  the  witnesses. 

Mr.  Storey.  I wanted  to  avoid  any  possible  misunderstanding. 
We  have  no  opportunity  to  examine  them  until  they  are  printed. 


662 


Testimony  of  Luther  W.  Faulkner. 


Luther  W.  Faulkner,  sworn. 

Q.  (By  Mr.  Shattuck.)  Have  you  a mill  on  Wamesit  dam? 

A.  Yes,  sir. 

Q.  How  long  have  you  been  employed  there? 

A.  Twelve  years. 

Q.  How  often  have  you  been  there  during  that  time? 

A.  I have  been  there,  on  the  average,  every  other  day.  I made 
it  my  rule  to  go  every  other  day. 

Q.  Whether  you  observed  the  water,  — have  been  in  the  habit 
of  doing  it  during  that  time? 

A.  I have. 

Q.  To  what  extent ; state  what  opportunities  you  have  had? 

A.  The  mill  is  situated  within  thirty  feet  of  the  bed  of  the  river. 
The  bed  of  the  river  flows  directly  back  of  the  mill  within  thirty 
feet,  and  can  be  plainly  seen  from  all  the  windows  back  of  the  mill. 

Q.  Can  you  tell  from  that  point  whether  the  water  is  running 
over  the  Wamesit  dam,  or  the  flash-boards? 

A.  Yes,  sir ; it  all  has  to  pass  there  at  the  head  of  the  river. 

Q . I should  like  your  opinion,  from  your  recollection,  as  to  the 
number  of  times  each  year  during  which  the  water  runs  over  the 
Wamesit  dam,  during  the  whole  of  the  working  day? 

A.  I should  think  it  did  not  run  over  more  than  three  months. 

Q.  During  the  entire  day  ? 

A.  Yes. 

Mr.  Richardson.  Perhaps  it  would  be  well  to  ask  him  some 
questions  with  regard  to  his  own  mill,  so  as  not  to  recall  him. 

Mr.  Child.  I do  not  understand  there  is  to  be  any  distinction 
made  about  the  evidence  ; it  all  goes  in  to  be  applied  as  you  like  it. 

Mr.  Butler.  It  all  goes  in,  and  the  only  question  put  in  by 
your  side  is,  as  to  how  much  the  water  runs  over  his  dam. 

Q.  (By  Mr.  Richardson.)  Now,  Mr.  Faulkner,  when  you 
bought,  you  bought  by  two  deeds,  I understand  you,  wdiich  have 
been  put  in? 

A.  Yes,  sir. 

Q.  In  the  first  deed  there  were  two  lots  of  land,  a certain 
quantity  of  water-power,  and  in  the  second  deed  another  quantity 
to  be  added  upon  certain  terms,  certain  conditions  to  take  place 
afterwards. 

Mr.  Butler.  Conditions  of  the  payment? 

Q Yes.  Now,  that  was  limited  to  three  }Tears.  Within  the 
time  specified  in  that  second  deed,  did  you  pay  the  money  to  the 
grantor  specified  therein  ? 

A.  Yes,  sir  ; I did. 

Q.  Within  how  long  a time  after  the  deed  was  made? 

A.  Within  one  year  from  that  time. 

Q.  Did  you  afterwards  enter  upon  the  additional  quantity,  or 
afterwards  begin  to  use  the  additional  quantity  of  water  provided 
in  that  deed  ? 

A.  I did. 

Q.  When  you  bought  the  land,  was  there  any  flume  there? 


Testimony  of  Luther  W.  Faulkner. 


663 


A.  Not  aity. 

Q.  Won’t  you  state  to  the  commissioners  what  you  did,  what 
you  constructed? 

A.  I don’t  recollect  the  price  of  the  flume  ; I built  it  according 
to  the  restrictions,  that  it  should  be  so  long,  and  regularly  even 
sides ; those  things  I complied  with  in  the  miJJ. 

Q.  Within  what  time  did  you  construct  that? 

A.  That  was  the  first  year,  in  the  year  1864,  that  flume  was 
constructed. 

Q.  What  else  did  you  do  then  to  improve  the  land  ? 

A.  I built  a mill  on  it. 

Q.  How  large  a mill? 

A.  It  is  81  by  50,  I think. 

Q.  How  many  stories  high? 

A.  Five  stories  high. 

Q.  Did  you  put  in  any  machinery,  and  if  so,  what? 

A.  We  have  put  in  six  sections  of  machinery.  It  was  not  all 
put  in  at  first. 

Q.  I mean  from  the  time  since,  and  back  of  two  or  three  years? 

Q.  (By  Commissioner  Francis.)  Six  sets? 

A.  Six  sets.  Some  call  them  sections.  It  was  woollen  ma- 
chinery. 

Q.  (By  Mr.  Richardson.)  That  was  all  completed  how  many 
years  ago  ; was  it  two  or  three  years  ago  ? 

A.  1872.  I think  we  put  the  last  in  in  1872. 

Q.  Now  what  time  in  1872? 

A.  In  the  winter  of  1872.  We  had  b\^t  four  sets  until  that 
time. 

Q.  How  early  did  you  put  in  your  wheel,  after  you  completed 
your  flume  and  building? 

A.  We  put  it  in  the  same  year. 

Q.  A little  after  the  deed  ? 

A.  The  same  year  that  we  commenced. 

Q.  At  first,  how  much  machinery  did  you  put  in,  and  when  did 
you  increase  it?  It  was  all  woollen  machinery,  was  it? 

A.  All  woollen. 

Q.  At  first,  how  much  did  you  putln,  and  how  long  a time  did 
that  go? 

A.  Put  in  four  sections  to  commence  with. 

Q.  How  long  did  you  run  it  with  four  sections? 

A.  I think  we  run  it  to  the  winter  of  1872. 

Q.  You  put  in  the  wheel  at  the  time  ? 

A.  Yes,  sir. 

Q.  Have  you  made  any  change  in  that  wheel  ? 

A.  We  have  changed  the  wheel  once. 

Q.  When  did  you  make  the  change  in  the  wheel? 

A.  Well,  I don’t  know  certain  as  I have  that ; that  is  something 
previous ; about  1870,  I should  think. 

Q.  How  much  horse-power  does  it  require  to  run  the  six  sets  of 
machinery  that  you  now  have  in  ? 

A.  I suppose  it  took  about  — I am  not  much  used  to  such 
things  — I suppose  it  took  fifty  horse-power. 


664 


Testimony  of  Luther  W.  Faulkner. 


Q.  In  addition  to  that  have  you  had  a steam-power  in  your 
mill?  if  so,  how  long? 

A.  We  have  had  some  steam-power  since  the  first  of  January. 

Q.  (By  Mr.  Butler.)  Since  the  first  of  this  January? 

A.  The  first  of  January. 

Q.  (By  Mr.  Richardson.)  Describe  what  kind  ; is  the  steam- 
power  permanent?  ® 

A.  No,  sir ; it  is  a temporary  engine  set  up  within  the  room 
where  a great  deal  of  help  are.  It  makes  it  very  uncomfortable. 
We  only  use  it  temporarily. 

Q.  Has  it  been  connected  with  your  machinery  during  that 
time? 

A.  It  has. 

Mr.  Butler.  I think  the  acts  of  the  parties  would  be  the  best 
evidence. 

Mr.  Richardson.  I only  wanted  to  know  what  the  condition 
was. 

Mr.  Butler.  I won’t  object. 

Cross-examination . 

Q.  (By  Mr.  Butler.)  May  I trouble  you  to  ask  what  your 
age  is  ? 

A.  61. 

Q.  Born  in  Middlesex  County  ? 

A.  Yes,  sir. 

Q.  At  Billerica  mills? 

A.  Yes,  sir. 

Q.  Have  you  always  been  a manufacturer? 

A.  Yes,  sir. 

Q.  Commenced  your  manufacturing  at  Billerica  ? 

A.  Yes,  sir. 

Q.  Commenced  at  Billerica  mills,  I suppose,  to  manufacture  ? 

A.  Yes,  sir. 

Q.  At  sometime  you  sold  out  your  connection  with  your 
brother  who  owns  the  mill? 

A.  Yes,  sir. 

Q.  And  then  you  went  down  to  the  Wamesit  dam  and  bought 
this  water-power  and  erected  a mill? 

A.  Not  immediately.  I had  a business  connection  with  Mr. 
Harris,  of  Fisherville,  for  some  years. 

Q.  Afterwards  you  went  in  with  Mr.  Harris,  of  Fisherville? 

A.  Yes,  sir. 

Q.  When  you  quit  that  business  connection  you  went  down 
here?  You  have  been  acquainted  with  machinery  and  water-power 
all  your  life,  haven’t  you  ? 

A.  Yes,  sir. 

Q.  And  especially  have  you  been  connected  most  of  your  life 
with  the  machinery  on  the  Concord  river? 

A.  I have. 

Q Did  you  know  Mr.  Whipple? 

A.  Yes,  sir. 


Testimony  of  Luther  W.  Faulkner. 


665 


Q.  Won’t  you  approximate  as  near  as  you  can  how  many  years 
since  he  began  on  the  Concord  river  at  what  is  known  as  Whipple’s 
Falls? 

A.  I could  not  tell.  His  powder-mill  used  to  be  there. 

Q.  Wasn’t  Mr.  Whipple  there  substantially  ever  since  you  can 
remember  carrying  on  the  powder  business  first? 

A.  Yes,  sir. 

Q.  And  there  has  always  been  a dam  there  as  long  as  you  can 
remember?  He  had  a dam  under  his  control? 

A . Yes,  sir. 

Q.  Mr.  Whipple  was  a man  of  ability  ? 

A.  I think  so. 

Q.  He  died  at  what  age  ? 

A.  Father  an  advanced  age ; somewheres  between  seventy  and 
eighty,  I should  think. 

Q.  Died  about  six  years  ago,  wasn’t  it? 

A.  Yes. 

Q.  And  after  the  city  grew  up  around  his  powder-mills,  so  that 
they  were  not  quite  convenient  to  have  there,  he  built  this  canal 
and  undertook  to  sell  power  to  various  persons,  of  which  you  are 
one? 

A.  Yes.  I did  not  buy  of  him  ; I bought  of  Mr.  Patch. 

Q.  Yes,  he  sold  out  to  Mr.  Patch  afterwards.  Were  you  one 
of  the  first  men  that  built  mills  on  the  new  canal  ? 

A.  No,  sir ; the  Chase  mills  were  there  when  I was  there,  and 
the  Belvidere  on  Warren  street. 

Q.  Was  the  Bolt  company? 

A.  Yes,  sir. 

Q Bolt,  Chase  and  Belvidere,  and  the  present  mills,  with  the 
exception  of  the  new  bunting-mill  and  the  carriage  factory  of  the 
Wamesit  Power  Company,  were  there  — the  old  mills? 

A.  Yes,  I think  they  were. 

Q.  The  canal  existing  as  Mr.  Whipple  built  it  until  it  came  into 
the  possession  of  the  Wamesit  Power  Company,  and  then  it  was 
enlarged,  wasn’t  it ; very  considerably  deepened  and  widened? 

A.  It  has  been  enlarged  since  I have  been  there. 

Q.  But  was  not  that  after  the  Wamesit  Power  Company  came 
into  possession? 

A.  Yes,  sir.  It  first  went  into  the  hands  of  Mr.  Patch,  then  — 

Q.  Into  the  hands  of  the  Wamesit  Power  Company,  and  then 
the  canal  was  enlarged? 

A.  Yes. 

Q.  And  isn’t  there  a great  deal  more  water  used  now  in  that 
canal  than  there  was  when  you  first  went  there  — great  additions 
to  the  machinery  ? 

A.  I should  think  there  was  some  more. 

Q.  When  you  first  built  the  mill,  and  bought  the  fifteen  cubic 
feet  of  water,  how  many  sets  of  cards  did  you  contemplate  putting 
in  when  you  first  calculated  your  investment? 

A.  I calculated  putting  in  four  sections  to  commence  with.  I 
had  the  other  amount  bonded  in  the  meantime,  that  I would  pay 
that  I could  add  the  ten  feet. 


666 


Testimony  of  Luther  W.  Faulkner. 


Q.  You  took  a bond  that  you  should  get  the  ten  feet  if  you 
wanted  it? 

A.  Yes,  sir. 

Q.  Calculating  that  your  fifteen  feet  would  do  for  your  four  sets 
of  cards,  then  you  thought  you  would  provide  for  ten  feet  more. 
You  run  your  mill  on  the  four  sets  of  cards  until  1872? 

A.  I suppose  about  1872.  I think  it  was  in  the  winter  of  1872 
we  added  two  more  sets. 

Q.  Do  you  run  your  sets  at  any  more  speed  than  you  used  to? 

A.  I don’t  think  that  has  been  changed  ; I don’t  know  of  any 
change. 

Q.  You  have  not  speeded  up  at  all  ? Have  built  any  addition 
to  your  works  lately  ? 

A.  No,  sir.  The  mill  was  built  in  1864. 

Q.  Haven’t  you  built  a new  store-house? 

A.  Oh,  a store-house. 

Q.  I mean  additional  works.  When  did  you  build  that  ? 

A.  Built  about  two  years  ago,  I think. 

Q.  Have  you  built  any  other  new  buildings? 

A.  Nothing  new. 

Q.  Your  store-house  is  the  brick  building  that  we  saw  near  the 
end  of  your  mill? 

A.  Yes,  sir. 

Q.  You  never  have  had  any  adjunct  of  steam-power  until  the 
first  of  January  of  this  year,  have  you? 

A.  No,  sir. 

Q.  Will  you  tell  me  how  much  of  the  time  you  have  run  your 
mill? 

A.  I run  it  most  of  the  time  when  we  had  water  enough. 

Q.  That ; I supposed,  that,  I should  not  want  you  to  swear  to. 
I want  you  to  tell  me  how  much  of  the  time  you  have  actually  run 
it? 

A.  That  I could  not  tell  you  without  referring  to  my  books. 

Q.  Will  your  books  show  exactly  ? 

A.  Tell  the  pay-roll,  and  how  I paid  my  help. 

Q.  You  did  not  pay  your  help  when  the  mill  did  not  run? 

A.  Yes,  sir,  we  paid  our  help  when  it  did  not  run  for  a quarter 
or  a third  of  a day. 

Q.  But  when  it  don’t  run  all  day  you  don’t  pay  your  help? 

A.  Yes,  sir. 

Q.  Now,  will  you  have  the  kindness  to  show  me  your  books,  and 
show,  ever  since  1864,  how  much  your  mill  has  not  run  all  day  by 
water  ? 

A.  I haven’t  any  books  with  me.  The  books  do  not  show  any 
loss  of  time,  fractional  parts  of  time.  We  have  to  pay  our  help, 
or  the  help  won’t  stay.  When  we  stop  a third  or  quarter  of  a day, 
we  have  to  pay  the  help  the  same,  so  that  the  books  would  show 
full  time. 

Q.  I understand  ; but  you  don’t  get  my  question.  Your  books 
will  show,  will  they  not,  how  many  full  days  you  have  been 
stopped  ? 

A.  I don’t  know.  It  is  not  stated  in  full  days.  When  the 
water  is  short  we  draw — 


Testimony  of  Luther  W.  Faulkner. 


667 


Q.  Have  you  ever  stopped  a full  day? 

A.  I don’t  know  that  we  have,  unless  it  was  some  leakage  in 
the  canal,  and  stopped  for  repair. 

Q.  Then  you  never  stopped  to  your  knowledge  a whole  day  from 
1874,  down  to  to  day?  Well,  I don’t  care  about  the  quarters  or 
halves,  summer  or  winter  ; that  is  so,  isn’t  it? 

A.  I don’t  think  that  we  have  stopped  any  full  days. 

Q.  Now,  then,  I take  it  that  you  would  not  have  used  any  more 
water,  or  have  not  meant  to  use  any  more  water,  than  you  have 
bought  and  paid  for? 

A.  I have  not  intended  to. 

Q.  There  came  a little  controversy  at  one  time  between  you  and 
the  Wamesit  Power  Company,  as  to  the  amount  you  did  use,  did 
there  not ; and  you  then  had  your  wheels  examined  and  gauged  so 
as  to  take  the  quantity  that  belonged  to  you  through  the  wheel  ? 

Mr.  Richardson.  We  don’t  want  to  go  into  that  dispute. 

Mr.  Butler.  No  ; I don’t  want  to  go  into  that  dispute. 

Mr.  Richardson.  To  remove  all  objection,  he  did  put  in  a new 
wheel. 

Mr.  Butler.  I am  only  going  to  get  at  the  fact  that  we 
thought  he  was  using  more  than  he  was  entitled  to,  and  at  a cer- 
tain time  — 

Mr.  Richardson.  I object  to  its  being  material  evidence. 

Mr.  Butler.  I think  you  will  be  entirely  satisfied.  I know  the 
proprieties  of  the  occasion,  and  do  not  propose  to  revive  any  dif- 
ferences between  Mr.  Faulkner  and  ourselves  at  all. 

Q..  You  did  put  in  a new  wheel,  and  gauged  it  so  as  to  take, 
when  it  was  running  full,  twenty-five  feet,  as  you  understood  it, 
and  as  your  engineer  understood  it.  Is  not  that  so? 

A.  The  present  wheel? 

Q.  Yes,  sir ; the  present  wheel.  You  put  in  the  new  wheel, 
and  so  gauged  it  according  to  the  best  information  you  could  get, 
so  as  to  take  twenty-five  feet  per  second  ? 

A.  Yes,  sir  ; we  thought  we  could  come  at  it  pretty  near. 

Q.  You  tried  to  do  it  as  near  as  you  could  ; that  is  so,  is’nt  it  ? 

A.  Yes,  sir. 

Q.  Now,  then,  when  that  water  runs  down  in  the  canal,  do  you 
shut  off  your  works  and  stop,  — then  it  won’t  give  twenty-five  feet 
per  second,  so  as  to  get  only  your  part,  — or  do  you  run  it  all  you 
can? 

A.  We  run  it  all  we  can.  We  use  the  steam  for  the  addition. 

Q.  You  did  not  have  the  steam  to  use  until  this  year.  Up  to 
this  year,  when  the  water  was  drawn  down  in  this  canal,  did  you 
shut  off  your  machinery? 

A.  Oh ! we  let  our  machinery  stand  ; as  I told  you,  we  let  our 
machinery  stand  a quarter  or  a third  of  the  day  and  always  had  to 
pay  our  help  for  it. 

Q.  I understand  that ; but  up  to  the  time  that  you  stopped,  or 
was  obliged  to  stop  for  want  of  water,  did  you  run  all  the  water 
that  your  wheel  would  take  ? 

A.  No,  sir ; we  did  not.  We  stopped  a certain  portion  of  the 
machinery,  and  let  it  stand. 


668 


Testimony  of  Luther  W.  Faulkner. 


Q.  That  is  what  you  meant  by  saying  that  you  could  not  run  a 
quarter  or  a third  of  the  day,  as  the  case  may  be  ? 

A.  I made  that  remark  in  reference  to  certain  portions  of  the 
day  when  it  draws  down  worse  than  others. 

Q.  Of  course  you  did  it  only  certain  portions  of  the  day,  when 
it  draws  down,  but  when  it  does,  you  say,  you  stopped  a quarter, 
a third,  or  a half  a day,  as  the  case  may  be,  but  the  times  when 
you  were  drawn  until  you  found  that  you  could  not  run  your  whole 
machinery,  you  kept  shutting  down  until  you  could  ; that  was  so? 

A.  Yes, 

Q.  The  water  came  to  you  first  and  you  had  the  first  chance  at 
it? 

A.  I believe  the  Wamesit  Power  Company  have  two  wheels 
above  us. 

Q.  That  run  in  low  water?  Ain’t  they  all  rated  only  to  run 
when  the  water  runs  over  the  dam  ? 

A.  I don’t  know  anything  about  that. 

Q.  Very  well.  One  is  thejlittle  shoddy  mill  that  is  there,  and 
the  other  is  what? 

A.  The  other  one  Mr.  ^Carter  uses.  It  takes  a pretty  good 
quantity  of  water. 

Q.  I know  it  does  ; I agree  to  that  thoroughly.  What  year  do 
you  say  now,  Mr.  Faulkner,  that  you  don’t  think  that  for  more 
than  three  months  in  the  year  that  the  water  run  over  the  dam, 
looking  out  your  window  and  seeing  it? 

A.  I mean  by  the  average  of  the  twelve  years  that  I have  been 
there. 

Q.  Is  there  any  difference  now  to  what  there  was  when  you  first 
went  there,  in  that  regard,  I mean?  Does  it  run  over  more  now 
than  it  did  then,  or  run  over  less  now  than  it  did  then? 

A.  I should  think  it  run  over  less.  I recollect  in  1854  the 
water  used  to  creep  up  before  I built  the  mill ; I saw  it  was  higher 
then. 

Q.  How  much  less  do  you  think  it  runs  over  now  the  top  of  the 
dam  than  it  did  five  years  ago,  or  six  years  ago? 

A.  It  seems  to  me  it  runs  over  a month  or  two  less. 

Q.  How  much  of  the  year  does  it  run  over  now,  if  it  runs  over, 
less  than  it  used  to  six  years  ago  ? Take  last  3Tear,  and  the  year 
before, — take  the  last  three  years, — how  much  of  the  time  do  you 
think  it  has  run  over  the  last  three  years  ? 

A.  Three  months  in  the  year,  I should  think  would  cover  it, 
that  it  runs  through  the  day.  It  may  dash  over  a little  in  the 
morning,  and  be  drawn  down  while  we  are  at  work,  or  in  the 
middle  of  the  day. 

Q.  I understand.  You  think  now  not  more  than  three  months, 
say  for  the  last  three  years,  or  last  six?  How  much  did  it  use  to 
run  over  a year  from  1864  to  1870? 

A.  I should  think  some  more. 

Q.  Two  months  more  a year? 

A.  As  much  as  that,  I should  think. 

Q.  Two  months  more  a year  it  averaged  the  six  years  previous  ; 
then  you  would  put  four  months  about  the  average,  taking  tbe  whole 
time? 


Testimony  of  Luther  W.  Faulkner. 


669 


A.  Well,  I should  think,  divide  the  whole  time,  from  the  time 
that  I have  been  there,  — the  average  now,  the  last  few  years  that 
I recollect  of,  I haven’t  any  doubt  that  it  doesn’t  run  over  more 
than  three  months  in  the  year ; but,  as  far  back  as  that,  there  was 
more  quantity  of  water ; I noticed  it  less. 

Q.  How  much  time  in  the  year,  taking  one  year  with  another, 
since  1872,  have  you  had  to  stop  your  machinery  on  account  of 
water  at  all,  leaving  out  repairs?  You  had  two  or  three  weeks 
repairing  one  time. 

A.  The  fractions  of  a day,  do  you  mean. 

Q.  Any  time  when  3’ou  had  to  stop  your  machinery  for  want  of 
water,  when  you  had  to  stop  any  considerable  portion  of  the 
machinery  for  the  want  of  water? 

A.  Those  fractional  parts  of  days  would  form  a small  part  of 
the  whole  year.  I could  not  say,  paying  help  in  that  way. 

Q.  But  I want  to  get  how  many  different  days  in  the  year,  will 
you  say  that  you  now  know  that  you  have  stopped  your  machinery, 
anj"  considerable  portion  of  it,  for  want  of  water,  leaving  out  the 
days  when  you  stopped  when  the  canal  was  broken? 

A.  I could  not  say.  I have  no  books  or  memorandum. 

Q.  Give  us  your  best  judgment,  what  3Tou  will  say.  “I  know 
so  many.”  What  I want  to  get  at  is,  “ I know  I stopped  two  da3rs 
in  the  year,  I stopped  four  days  in  a year,  six  days  in  a 3'ear, 
ten  days  in  a year  ; I cannot  say  whether  I did  more  or  not.” 

A.  I stopped  St.  Patrick’s  day,  because  my  help  is  mostly  Irish. 

Q.  I am  now  asking  for  want  of  water.  Get  my  question. 
How  many  different  days  in  a 3rear,  any  one  year,  will  you  swear, 
when  they  were  not  repairing  the  dam  or  the  canal  you  stopped 
ai^  considerable  portion  of  your  machinery  for  want  of  water? 

A.  I haven’t  any  memorandum  by  which  I can  tell  anything 
about  that. 

Q.  You  can  give  us  some  number  of  days? 

A.  I have  told  you  I never  stopped  a whole  day  that  I recol- 
lect of. 

Q.  How  man3r  different  days  will  you  testify  that  you  have 
stopped  your  mill,  stopped  any  considerable  portion  of  your 
machinery  in  your  mill  any  part  of  the  day  for  want  of  water? 

A.  I recollect  the  summer  of  1872,  or  the  summer  next  after 
the  passage  of  the  act,  the  first  time  after  the  water  was  taken 
from  the  City  of  Boston,  — I think  I am  right  in  the  year  — we 
had  quite  a number  of  broken  days  in  the  forepart  of  the 
summer. 

Q.  What  part  of  the  summer,  June? 

A.  Somewheres  between  the  first  of  June  and  last  of  August. 

Q.  You  had  a number  of  broken  days  how  many  broken  days 
that  year,  could  3Tou  say  that  you  had  between  the  1st  of  June 
and  the  last  of  August? 

A.  Quite  a number,  I think  ; that  is  the  worst  summer  I have 
ever  seen. 

Q.  How  man3'  different  da3Ts  that  3Tou  could  say  that  yTou  are 
certain  you  stopped.  Of  course,  you  don’t  know  but  what  there 
were  more? 


670 


Testimony  or  Luther  W.  Faulkner. 


A.  I could  not ; it  would  be  a mere  matter  of  guess-work  to  say 
anything  about  it. 

Q.  Ten? 

A.  I think  as  much  as  ten,  or  more  at  that  time. 

Q.  How  much? 

A.  As  much  as  ten. 

Q.  How  many  in  1873,  did  you  stop  for  want  of  water? 

A.  I could  not  recollect  particular^. 

Q.  Did  you  as  many  as  you  did  in  1872? 

A.  I do  not  think  we  did.  I think  it  was  a wetter  season. 

Q.  How  many  did  you  stop  in  1871  — as  many  as  you  did  in 
1872? 

A.  I could  not  recollect  in  regard  to  that. 

Q.  Is  it  your  opinion  that  you  stopped  as  many  as  you  did  in 
1872? 

A.  I do  not  seem  to  have  any  definite  recollection  about  it,  only 
that  summer  of  1872.  I have  an  impression  that  the  drawing  of 
the  water  had  — 

Q.  When  they  took  it  from  Farm  pond  to  Lake  Cochituate? 

A.  Yes,  sir. 

Q.  Are  you  ever  stopped  by  back-water  ? 

A.  I do  not  recollect  of  ever  being. 

Q.  Were  there  other  gentlemen  on  the  same  stream  with  you, 
using  at  the  same  time  that  you  used  ? 

A.  What  was  the  question? 

Q.  Were  there  gentlemen  on  the  same  canal,  or  other  manufac- 
turers running,  drawing  down  the  head  at  the  time  you  stopped? 

A.  Yes,  sir ; we  were  all  using  partial  quantities,  but  not  get- 
ting enough.  We  were  running  part  of  our  machinery. 

Q.  You  have  not  told  us  what  that  mill  cost,  the  mill  itself? 

Mr.  Shattuck.  Including  the  machinery. 

Mr.  Butler.  The  machinery  is  good  anywhere. 

A.  They  were  all  estimated  together. 

Q.  I only  want  to  know  the  contract  price  for  that  mill  and  the 
flume. 

A.  Reade  and  Frye  call  it  a pretty  solid  mill.  It  commences 
thirty-two  inches  at  the  bottom. 

Q.  Yes,  it  is  a good  mill ; I wish  I owned  it.  The  question  is, 
how  much  it  cost. 

A.  I could  tell  you  the  aggregate ; but  the  way  those  mills 
divide  on  the  machinery,  I could  not  tell  you. 

Q.  I want  to  know  what  the  mill  cost.  Well,  if  you  don’t 
choose  to  tell  me,  you  can’t. 

Mr.  Richardson.  I don’t  think  it  is  fair  to  say  “ don’t  choose.” 

Mr.  Butler.  I only  say  that  if  you  don’t  say  what  the  mill 
cost,  I can’t  pay  you  for  it. 

The  Witness.  The  aggregate  of  the  whole  was  about  one 
hundred  and  thirty  thousand  dollars. 

Q.  (By  Commissioner  Russell.)  Can’t  you  give  the  value  of 
the  mill  separate  from  the  machinery? 

A.  I cannot. 

Mr.  Richardson.  I want  to  ask  one  question,  to  save  the 


Testimony  of  Andkew  J.  Hiscox. 


671 


trouble  of  recalling  him.  Among  the  wheels  that  were  above,  he 
alluded  to  two ; I wish  to  ask  this  question  as  to  the  saw-mill. 

Mr.  Butler.  That  saw-mill  never  ran  except  when  the  water 
ran  over  the  dam. 

Q.  (By  Mr.  Richardson.)  There  was  a saw-mill  that  took  a 
vast  quantity  of  water? 

A.  Yes,  about  as  much  as  that  old  flume. 

Q.  And  it  has  been  filled  up  within  what  time  ? 

A.  Closed  up  last  winter. 

Q.  (By  Mr.  Butler.)  That  never  was  run,  except  in  the 
spring  ? 

A.  I think  not ; when  it  was  high  water. 

[Adjourned  till  a quarter  to  two  o'clock, 


AFTERNOON  SESSION. 

Andrew  J.  Hiscox,  sworn . 

Q.  (By  Mr.  Shattuck.)  What  is  your  occupation  ? 

A.  File  manufacturer. 

Q.  Have  you  had  at  any  time  a mill  on  the  Wamesit  dam? 

A.  Yes,  sir  ; I leased  a mill  there. 

Q.  How  long? 

A.  For  five  years.  Four  years  I was  on  the  dam. 

Q.  Did  you  build  your  mill? 

A.  Yes,  sir. 

Q.  How  much  power  did  you  have? 

A.  I hired  eight  horse-power.  We  ran  from  the  same  privilege 
that  Mr.  Carter  runs  from. 

Q.  Did  you  have  that  all  the  year,  regularly  guaranteed  ? 

A . No,  sir;  guaranteed  for  nine  months  in  the  year. 

Q.  The  other  part  of  the  time,  how  was  it? 

A.  We  should  have  it  nights ; have  it  nights  at  any  time. 

Q.  What  did  you  pay  for  that  power  ? 

A.  Eight  hundred  dollars  ; that  is,  for  the  power  and  the  use  of 
the  land. 

Q.  How  much  land  was  it? 

A.  I believe  it  was  one  hundred  by  fifty. 

Q.  You  built  your  own  mills,  I understand? 

A.  Yes,  sir. 

J Q.  How  near  were  you  to  the  bed  of  Concord  river? 

A.  There  was  a decent  driveway  for  a horse,  and  the  width  of 
the  raceway. 

Q.  Did  you  have  an  opportunity  to  observe  when  the  water  ran 
over  the  dam  ? 

A.  I have  drove  by  there  four  times  a day  for  four  years. 

Q.  Could  you  tell  from  the  appearance  of  the  bed  of  the  river 
behind  your  mill? 

A.  Yes,  sir;  I drove  right  by  there.  I could  not  help  see- 
ing it. 


672 


Testimony  of  Andrew  J.  Hiscox. 


Q.  What  is  your  recollection  as  to  the  number  of  days  in  the 
year  during  which  the  water  ran  over  the  dam  the  whole  day? 

A.  Well,  judging  from  the  water  in  the  stream,  — that  is  the 
only  basis  I have  to  judge  from,  not  from  the  dam,  for  I was  not 
very  near  the  dam,  — but  judging  from  the  water  there  was  in  the 
stream,  three  months  in  the  year  would  certainly  cover  it. 

Q.  Were  you  nearer  the  dam  than  the  Faulkner,  or  Stott,  or 
any  of  the  other  mills  ? 

A.  Yes,  sir ; we  were  nearer  than  the  Faulkner  or  Stott. 

Q.  Wasn’t  your  power  the  nearest  to  the  dam? 

A.  No,  sir  ; there  were  two  small  privileges  above. 

Q.  Was  your  attention  at  any  time  called  to  the  amount  of 
water,  or  the  effect  of  this  taking  with  reference  to  your  re- 
moval ? 

A.  Well,  I heard  the  reports  that  the  City  of  Boston  was  going 
to  take  the  water,  and  of  course,  not  having  any  too  much  water 
then,  1 was  anticipating  trouble  from  the  City  of  Boston  taking 
the  water. 

Q.  You  stated  that  three  months  would  cover  the  time  when  it 
ran  all  day,  and  you  were  asked  whether  you  had  any  special  rea- 
son for  observing  the  water  with  reference  to  removal,  or  anything 
of  that  kind.  Did  you  have  any  special  reason  for  observing  it? 

A.  Of  course  the  reports  affected  me  more  or  less.  My  lease 
was  running  out,  and  the  question  would  naturally  arise  whether 
this  taking  of  the  water  was  going  to  affect  my  lease  ; and  as  I was 
using  my  power  up  to  the  limit,  the  question  was  whether  I could 
renew  that  lease  and  have  sufficient  power.  Of  course,  that  natur- 
ally arose  in  my  mind. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  You  have  stated  that  you  had  power 
guaranteed  nine  months  in  the  year  to  run  eleven  and  a quarter 
hours  a day  ? 

A.  Yes,  sir. 

Q.  And  you  used  eight  horse-power? 

A.  Yes,  sir  ; that  is  what  we  hired. 

Q.  Drawn  from  a wheel  which  was  in  another  building? 

A.  Yes,  sir. 

Q.  And  your  attention,  you  say,  was  called  to  the  question  of 
the  diminution  of  power  by  this  taking  of  the  water  by  the  city,  as 
to  whether  you  should  renew  your  lease? 

A.  Yes,  sir. 

Q.  Did  you  run  all  the  time  when  there  was  water  enough  to 
run? 

A.  Yes,  sir ; that  is,  there  might  have  been  six  weeks  or  two 
months  in  the  whole  four  3rears,  I don’t  think  there  was  that,  when 
we  did  not  run.  We  run  all  the  time,  in  fact;  we  didn’t  stop 
any  time.  We  might  have  run  short  hours. 

Q.  Six  weeks  or  two  months  in  the  four  years? 

A.  Yes,  sir. 


Testimony  of  Samuel  Naylor. 


673 


Q.  The  fall  of  the  mill  that  supplied  you  was  less  than  the  usual 
fall,  wasn’t  it? 

A.  Less  than  the  fall  below?  yes,  sir. 

Q.  Was  your  attention  ever  called  to  the  Sterling  mill,  — what 
is  known  as  the  Charles  Stott  mill? 

A.  Not  to  know  anything  about  it. 

Q.  To  its  situation  ; as  to  its  advantage  for  taking  water? 

A.  Yes,  sir. 

Q.  Couldn’t  that  alwa}fs  have  water  when  there  was  any  in  the 
canal? 

A.  I don’t  know  much  about  that.  There  is  one  of  those  privi- 
leges where  there  is  a little  bend.  My  attention  was  called  to 
that,  and  I thought  they  were  very  nicely  situated  to  get  the  water 
as  it  came  down. 


Samuel  Naylor,  sworn . 

Q.  ( By  Mr.  Shattuck.)  What  is  your  occupation? 

A.  1 have  had  charge  of  Mr.  Hiscox’s  works  for  the  last  six  or 
seven  years. 

Q.  Did  you  have  charge  of  these  works  on  the  W amesit  dam  ? 
A.  I did. 

Q.  What  opportunities  did  you  have  for  observing  the  Wamesit 
dam  when  the  water  flowed  over  it? 

A.  Well,  I was  around  outside  about  every  day. 

Q.  Could  you  tell  whether  water  was  running  over  that  dam  or 
not? 

A.  Yes,  sir. 

Q.  What  portion  of  the  year  should  you  say  it  ran  over  all  day  ? 

A.  I should  think  it  would  reach  three  months,  all  day.  There 
were  a great  many  days  when  it  would  run  over  in  the  morning, 
and  when  we  started  it  would  run  down.  That  is,  some  years. 
There  was  one  year,  when  we  were  there,  it  overran  three  months, 
I think,  but  the  other  four  years  it  would  not. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  You  were  in  the  file  factory? 

A.  Yes,  sir. 

Q.  Do  you  agree  with  the  last  witness,  who  said  that  he  did  not 
think  you  were  stopped  for  want  of  water  more  than  six  weeks  or 
two  months  in  the  four  or  five  years  you  were  there? 

A.  Yes,  sir;  I should. 

Q.  What  year  was  it  that  you  observed  that  it  didn’t  run  over 
even  three  months? 

A.  I don’t  know  as  I could  state  correctly  what  year  it  was, 
but  there  was  one  year,  I know,  that  we  spoke  of  as  an  extraor- 
dinary year  over  any  of  the  others. 

Q.  When  was  your  attention  first  called  to  the  fact  that  your 
recollection  was  wanted  about  the  running  of  the  water  over  the 
dam? 


674 


Testimony  of  John  Stott. 


A.  It  was,  I should  say,  two  years  ago.  There  was  a gentle- 
man — I didn’t  know  who  he  was,  or  what  his  business  was  — came 
up  there  and  asked  me  the  same  question. 

Q.  (By  Mr.  Shattuck.)  Was  that  before  you  left  that  he  asked 
you  the  question? 

A.  Yes,  sir. 

Q.  And  you  observed  after  that,  as  well  as  before  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  What  time  did  you  leave? 

A.  I left  Lowell  in  July  last  year. 

Q.  What  time  did  you  leave  off  working  there? 

A.  In  July  last  year. 

Q.  What  time  of  the  year  was  it  this  man  came  ? 

A.  It  was  in  the  spring. 

Q.  The  spring  before  you  left? 

A.  Yes,  sir,  of  the  same  year  that  I left. 

Q.  You  left  in  July,  and  he  came  in  the  spring? 

A.  Yes,  sir. 

Q.  (By  Mr.  Richardson.)  Did  the  six  weeks  or  two  months 
cover  a period  of  four  years  or  five  years  ? 

A.  Four  years.  I was  not  there  but  four  years. 

Mr.  Hiscox,  recalled . 

Q.  (By  Mr.  Shattuck.)  Did  you  run  in  the  night? 

A.  Yes,  sir. 

Q.  How  much  of  the  time  do  you  think  you  run  in  the  night? 

A.  I can’t  tell  anything  accurate  at  all.  We  couldn’t  run 
advantageously  in  our  business  nights,  and  if  business  was  dull 
we  would  stop  rather  than  run  nights.  Probably  we  might  have 
run  three  or  four  weeks  during  the  time  nights.  I should  not  think 
more  than  that.  Sometimes  we  stopped  our  works. 

Q.  How  much  do  you  think  you  stopped  running,  or  run  less 
than  the  whole  amount,  for  want  of  water? 

A.  There  was  never  a time  that  we  run  nights  if  we  didn’t  run 
daytimes. 

Q.  How  much  of  the  time  do  you  think  }Tou  did  not  run  your 
whole  machinery  the  whole  day  because  you  were  short  of  water? 

A.  I should  think  four  to  six  weeks. 

John  Stott,  sworn . 

Q.  (By  Mr.  Shattuck.)  Where  do  }tou  reside? 

A.  Lowell. 

Q.  What  knowledge  have  you  of  manufacturing?  How  long 
have  you  been  engaged  in  it? 

A.  I have  been  employed  by  the  Belvidere  Co.  for  fifteen  years 
as  book-keeper. 

Q.  Do  you  also  look  after  the  running  of  the  mill? 

A.  Not  directly,  but  indirectly. 

Q.  Well,  at  times? 

A.  At  times  I do. 


Testimony  of  John  Stott. 


675 


Q.  When,  and  to  what  extent? 

A.  In  the  absence  of  those  in  higher  authority. 

Q.  Did  you  ever  work  in  a mill? 

A.  Yes,  sir. 

Q.  How  long  a time? 

A.  When  I was  a boy,  up  to  the  time  I was  fifteen  years  of  age, 

I worked  in  a mill. 

Q.  Do  you  understand  the  machinery  and  the  running  of  it? 

A.  Yes,  sir. 

Q.  Excluding  the  present  year,  how  much  of  the  time  has  your 
mill  (Belvidere  No.  1,  which  is  not  on  the  Wamesit  dam)  used 
steam  as  auxiliary,  from  your  recollection  ? 

Mr.  Butler.  What  has  this  to  do  with  the  Wamesit  dam? 

Mr.  Shattuck.  It  has  something  to  do  with  the  flow  of  water 
in  Concord  river. 

Mr.  Butler.  You  do  not  ask  him  what  time  they  could  not  run 
i-n  consequence  of  being  short  of  water.  You  ask  him  what  time 
they  used  steam. 

Q.  You  use  steam  simply  when  you  are  obliged  to,  don’t  you? 

A.  Yes,  sir. 

Q.  Leaving  out  the  present  year,  what  I want  you  to  state  is 
the  time  you  have  used  steam  from  the  want  of  water. 

A.  From  the  absence  of  any  record  being  kept  of  it,  I can  only 
give  it  as  opinion,  from  my  best  recollection.  I don’t  make  a pos- 
itive statement. 

Q.  I understand.  State  your  best  recollection. 

A.  You  mean  how  much  water  it  aggregated  for  the  year? 

Q.  Yes,  sir  ; previous  to  this  year. 

A.  Well,  I should  say,  perhaps  from  four  to  five  weeks  we  used 
steam  occasionally.  It  would  aggregate  that,  I think. 

Q.  How  much  steam-power  have  you?  What  is  your  engine? 

A.  We  have  a sixty-horse  Corliss  engine. 

Q.  Whether  with  your  boiler  you  have  more  or  less  than  that 
effective  power  that  you  can  use  ? 

A.  Yes,  sir ; if  we  had  any  use  for  it. 

Q.  How  much  more,  do  you  think? 

A.  Well,  we  have  what  is  called  a locomotive  tubular  boiler.  It 
would  drive  considerably  more  machinery  than  what  we  have.  I 
can’t  say  how  much. 

Q.  Let  me  ask  you,  when  you  use  steam  as  auxiliary,  what 
amount  have  you  practical^  used  at  different  times? 

A.  Sometimes  we  have  run  the  water-wheel  in  combination  with 
the  steam-engine.  It  would  be  a hard  matter  to  say.  It  might 
be  two  or  three  horse-power,  and  it  might  be  ten  horse-power  ; and 
sometimes  the  water  would  be  so  low  that  we  would  throw  the 
wheel  off,  and  run  entirely  by  steam. 

Q.  What  portion  of  the  day  do  you  run  steam? 

A.  That  depends  on  the  water. 

Q.  I mean,  practically,  — one  hour,  or  all  day? 

A.  Sometimes  we  start  up  in  the  morning  at  quarter  of  seven, 
bell  time,  and  there  will  be  water  enough  to  run,  and  we  should 
not  run  the  engine.  Then  in  an  hour’s  time  after  that,  or  a half- 


676 


Testimony  of  John  Stott. 


hour’s  time  after  that,  the  water  will  run  right  down,  and  we  have 
to  put  on  steam. 

Q.  When  you  start  steam  in  the  morning,  how  does  it  work? 

A.  Those  things  are  governed  by  the  water  we  find  the  day  be- 
fore, and  if  the  prospect  for  the  next  day  is  that  we  must  use 
steam,  the  order  to  the  engineer  is  to  have  the  steam  up  ready  to 
run  the  engine  in  the  morning ; and  if,  after  we  have  run  the  en- 
gine for  an  hour  or  two,  the  water  comes  down,  as  it  often  has 
come  down,  the  steam  we  have  got  up  would  be  of  no  account. 
We  don’t  need  to  use  it. 

Q.  Practically,  how  much  steam  is  required  when  you  are  using 
the  smallest  amount? 

A.  If  we  have  got  to  get  up  steam  at  all  to  run  the  engine,  it 
makes  no  difference  in  the  expense  of  fuel ; that  is  to  say,  it  costs 
as  much  to  make  a fire  under  the  boiler  to  make  steam  for  that  en- 
gine, not  knowing  how  much  we  would  have  to  use  it,  as  it  would 
if  we  were  to  run  all  day. 

Q.  Can  you  illustrate  that  by  any  instance  within  a day  or 
two  ? 

A.  Yes,  sir.  One  instance  yesterday.  Day  before  jTesterday 
the  water  was  in  such  condition  that  it  appeared  that  we  should 
be  obliged  to  use  steam,  and  the  order  was  to  get  up  steam  to 
run  the  engine,  and  we  had  a fire  on  purpose  for  steam  for  the 
engine  ; and  I think  they  ran  it  an  hour  and  a half  or  two  hours, 
and  then  the  water  came,  so  that  the  engine  was  not  wanted. 

Q.  How  much  coal  do  you  use? 

A.  Well,  it  takes  somewhere  in  the  vicinity  (not  having  the 
exact  figures)  of  a ton  of  coal  to  start  the  fire  and  run  the  steam- 
engine. 

Q.  If  you  wanted  twenty  horse-power  for  all  day,  how  much 
more  coal  would  it  take  ? 

A.  No  more  at  all.  We  should  not  have  to  get  any  more  fire. 

Q.  Practically,  then,  if  3’ou  have  to  furnish  any  auxiliary  power, 
you  must  use  fuel  enough  to  provide  pretty  large  power  — is 
that  so? 

A.  Yes,  sir. 

Q.  And  if  you  have  to  provide  it  for  any  part  of  the  day,  you 
must  provide  fuel  enough  substantially  for  the  whole  day? 

A.  Yes,  sir,  substantially  speaking,  the  whole  day.  You  can’t 
tell  when  the  water  is  going  down,  and,  unless  you  want  to  stop 
the  machinery  entirely,  you  must  have  steam  to  take  the  place  of 
the  water,  and  to  do  that  you  must  have  fire  under  the  boiler. 

Q.  Could  }tou  tell  practically  any  day  this  last  summer,  with 
a few  exceptions,  in  the  morning,  whether  you  would  need  steam 
all  day  or  not? 

A.  Well,  yes,  we  know  as  well  as  we  can  know  anything  that  is 
to  come  during  the  day,  that  we  wouldn’t  need  it  all  day.  Well, 
there  have  been  times,  especially  during  this  3'ear ; we  have  used 
the  steam  probabty  more  this  year  than  for  a number  of  years 
past.  We  have  hardly  put  the  water-wheel  on  at  all ; sometimes 
scarcely  drawn  water  enough  in  the  morning  to  do  the  pulling  at 
times  this  year. 


Testimony  of  John  Stott. 


677 


Q.  How  much  steam  have  you  used  during  the  last  few  months  ? 
How  long  a time? 

A.  The  first  part  of  this  year,  in  January. 

Q.  During  this  year,  how  many  months  should  you  say  you  had 
used  steam  in  all? 

A.  Giving  it  as  my  opinion,  I should  say  we  had  used  it  three 
months  this  year  altogether.  That  is  m}T  opinion.  I shouldn’t 
swear  to  it.  The  month  of  January  we  used  steam,  and,  if  my 
memory  serves  me  right,  it  was  pretty  much  so  the  month  of 
February,  and  parts  of  the  time  since. 

Cross-examination. 

Q.  (By  Mr.  Butler.)  Does  ice  trouble  }rou  ? 

A.  Yes,  sir,  sometimes  anchor-ice  bothers  us. 

Q.  Why  do  you  say  you  have  used  steam  most,  — because  there 
was  back-water,  or  because  you  were  short  of  water  in  January 
and  February? 

A.  We  were  short  of  water. 

Q.  How  much  of  the  time  have  you  been  troubled  with  back- 
water? 

A.  We  are  troubled,  more  or  less,  on  account  of  back-water. 

Q.  Your  uncle  is  the  superintendent,  and  has  the  care  of  the 
two  mills  of  the  company,  does  he  not? 

A.  Yes,  sir. 

Q.  And  has  had  for  a great  many  years  ? 

A.  Yes,  sir. 

Q.  Indeed,  he  was  the  founder  of  the  whole  concern? 

A.  Yes,  sir. 

Q.  Where  is  he  now? 

A.  He  is  at  Lowell,  at  the  mill. 

Q.  Mr.  Stott,  how  many  sets  of  cards  have  you  got  at  Belvi- 
dere  No.  1 ? 

A.  Seven  set. 

Q.  And  you  make  flannel? 

A.  Yes,  sir. 

Q.  How  many  horse-power  do  you  calculate  to  a set  ? 

A.  The  mill  was  original^  started  for  six  set.  We  brought  one 
set  down  from  mill  No.  2,  but  previous  to  that,  in  hearing  any 
talk  about  it,  it  has  always  been  rated  at  fifty  horse-power  to  drive 
the  mill  and  whatever  belongs  to  it.  Now,  it  is  more.  We  have 
got  another  set  there,  that  is,  one  set  of  cards  onty,  not  any  other 
machinery  with  the  one  set.  I have  always  heard  my  uncle  and 
the  rest  of  the  managers  speak  as  though  it  was  fifty  horse-power 
to  drive  the  mill.  I never  made  any  calculation  myself. 

Q.  How  much  of  the  time  in  any  year  do  you  think  the  water 
is  running  over  the  Middlesex  dam? 

A.  The  water  runs  over  the  dam,  — I scarcely  ever  saw  it  but 
what  it  did  run  over  the  dam  somewhat ; that  is,  some  portions  of 
the  day.  I have  seen  it  when  it  would  be  very  slight  indeed. 
There  may  be  days  when  it  doesn’t  run  over,  but  I don’t  seem  to 
recollect.  There  may  have  been  days  when  it  has  not  run  over. 


678 


Testimony  of  John  Stott. 


I presume  there  are  days  when  it  doesn’t  run  over  at  all ; I have 
no  occasion  to  take  any  record  of  it. 

Q.  It  has  been  where  you  could  see  it? 

A.  No,  I couldn’t  see  it  without  making  an  effort  to  see  it.  I 
should  have  to  go  out  of  the  counting-room  because  it  is  not  in 
sight  from  the  counting-room. 

Q.  Now,  in  your  judgment,  how  many  times  in  a year  has  it 
run  over  all  day  the  past  five  years  ? 

A.  I can’t  say.  I can’t  give  any  idea  of  it  at  all.  I won’t  un- 
dertake to  say,  because  I have  kept  no  record  of  it,  never  given  it 
a thought. 

Q . Doesn’t  the  water  run  over  the  dam  so  that  you  can  run 
your  machinery  fully  by  water-power  in  mill  No.  2? 

A.  It  has  to  run  over  the  dam  or  else  we  can’t  run. 

Q.  Then,  whenever  you  can  run  all  day,  the  water  must  be  run 
ning  over  the  dam  ? 

A.  If  we  can  run  all  day,  the  water  must  run  over  the  dam. 
Allow  me  to  say  that  the  water  may  run  over  the  dam  for  one 
hour,  start  to  run  over,  and  then  we  have  certain  marks  there 
which  tell  us,  without  going  to  the  dam,  whether  it  is  running  over 
or  not.  Then,  when  the  water  gets  up  to  that  mark,  we  put  on 
the  wheel.  We  might  run  an  hour,  and  it  might  run  down  below 
that  mark  and  we  would  have  to  stop.  If  it  was  stopped  at  the 
other  end,  and  the  water  was  not  coming  down,  we  should  draw  it 
right  down. 

Q.  You  have  no  storage  pond? 

A.  No,  sir. 

Q.  I want  to  ask  you  another  question  about]  the  other  mills. 
What  other  mills  are  carried  by  the  same  water,  by  the  same  end 
of  the  dam  ; I mean  owned  anybody.  In  the  first  place  there 
is  mill  No.  1 . Is  there  anything  else  owned  by  the  Belvidere  Co.  ? 

A.  John  Holt,  he  draws  water  from  the  same  pond.  The 
Nesmith  heirs  own  a building,  and  they  draw  water  from  the  same 
pond,  and  there  is  what  we  call  the  Island  mill,  owned  b}T  the 
Middlesex  Co.  that  the  Belvidere  Co.  leased  on  purpose  to  control 
the  water.  Then  there  is  what  we  call  the  Batting-mill  property 
which  the  Belvidere  Co.  own. 

Q.  What  else? 

A.  That  is  all  I know  of. 

Q.  And  they  have  all  an  equal  right  to  run  when  you  run?  I 
don’t  mean  an  equal  amount,  but  an  equal  right  to  run  when  you 
can  run? 

A.  They  have  the  right  to  run  wdien  the  water  is  running  over 
the  dam. 

Q.  And  that  isj'our  right? 

A.  That  is  our  right. 

Mr.  Shattuck.  The  deeds  will  show  what  the  rights  are. 

Witness.  You  don’t  understand  me  as  answering  what  the 
rights  are. 

Q.  How  do  they  exercise  their  rights  ? They  exercise  the  right 
to  run  when  the  water juns  over  the  dam,  don’t  they? 

A.  That  is  it. 


Testimony  of  John  Stott. 


679 


Q.  What  does  Mr.  Holt  do? 

A.  He  manufactures  flannel,  and  has  been*manufacturing  bunt- 
ing this  summer. 

Q.  How  many  sets  of  cards  does  he  run? 

A.  I believe  it  is  three  ; I am  not  sure. 

Q.  Do  the  pump-making  people  run  there  ? 

A.  No,  sir. 

Q.  They  used  to? 

A.  They  did  use  to.  He  bought  that  property. 

Q.  Who  runs  the  Nesmith  heirs’  mill? 

A.  White  Brothers  & Kilburn. 

Q.  What  do  they  do? 

A.  Manufacture  leather.  There  is  a different  process  with  the 
skins.  I don’t  know  hardly  what  you  would  call  them.  Tanners. 
They  make  glove  leather,  organ  leather,  and  all  such  fancy 
leathers. 

Q.  What  is  done  in  the  batting-mill,  as  it  is  called? 

A.  Freeman  Brown  is  there  now. 

Q.  What  is  he  doing? 

A.  He  is  making  fancy  lathes  for  boys  and  girls.  I don’t  know 
how  to  speak  of  it  exactly. 

Q.  How  much  power  is  the  batting-mill  entitled  to? 

A.  I don’t  know. 

Q.  You  don’t  know  what  the  capacity  of  its  wheel  is,  do  you? 

A.  No,  sir. 

Q.  Nor  what  the  capacity  of  the  water-wheel  of  the  Nesmith 
heirs  is  ? 

A.  No,  sir,  I do  not. 

Q.  Nor  what  is  the  capacity  of  John  Holt’s  wheel? 

A.  No,  sir. 

Q.  How  much  does  the  Island  mill  take? 

A.  All  I know  about  that  is  hearsay  ; that  it  is  reckoned  a twelve 
horse-power  privilege.  That  is  what  I have  heard  it  spoken  of. 
I don’t  know  whether  it  is  so  or  not. 

Q.  What  does  the  Belvidere  Company  do  with  that  Island  mill? 

A.  Nothing.  They  rent  it  to  Whitehead  & Atherton,  ma- 
chinists. 

Q.  (By  Mr.  Shattuck.)  Does  Holt  run  all  his  machinery  much 
of  the  time? 

A.  No,  sir ; He  runs  very  irregularly,  — very  irregularty,  in- 
deed. It  is  a good  while  since  he  ran  all  his  machinery. 

Q.  Belvidere  No.  1 has  nineteen  twenty-fifths  of  the  surplus 
water  ? 

A.  Yes,  sir ; there  are  twenty-five  rights  on  that  side  of  the 
river,  and  the  Belvidere  Company  owns  nineteen  of  them. 

Q.  (By  Mr.  Butler.)  In  other  words,  Mr.  Holt  is  sometimes 
manufacturing,  and  sometimes  he  is  not? 

A.  Yes,  sir. 

Q.  Does  he  cease  to  manufacture  because  he  has  no  water? 

A.  That  I don’t  know. 


680 


Testimony  of  Frederick  Faulkner. 


Frederick  Faulkner,  sworn . 

Q.  (By  Mr.  Shattuck.)  Do  you  have  business  on  Wamesit 
dam? 

A.  Yes,  sir. 

Q.  What  do  you  do? 

A.  Manufacture  woollens. 

Q.  You  are  in  business  in  connection  with  your  father,  Luther 
W.  Faulkner? 

A.  Yes,  sir. 

Q.  How  long  have  }rou  been  in  that  mill? 

A.  I have  been  in' it  since  it  has  been  built,  twelve  years.  I 
was  there  about  a year  before  that,  and  looked  after  the  building 
of  it  nearly  a year. 

Q.  How  constantly  are  you  there? 

A.  I am  there  every  day  ; very  rarely  away  from  there. 

Q.  What  opportunities  have  you  of  knowing  when  the  water 
runs  over  Wamesit  clam? 

A.  The  bed  of  the  river  runs  right  back  of  where  my  business 
calls  me  a great  many  times  in  the  day. 

Q.  Is  it  a matter  of  hourly  interest  with  you  to  see  the  flow  of 
the  water  during  most  of  the  year  or  not? 

A.  Well,  it  has  been  for  a few  years  past,  but  I have  been 
obliged  to  see  it.  It  has  been  where  I couldn’t  help  seeing  it  in 
passing  in  and  out  of  the  mill. 

Q.  Your  mill  is  sometimes  short  of  water,  isn’t  it? 

A.  Yes,  sir;  somewhat  slightly. 

Q.  And  during  what  portion  of  the  year,  what  number  of  days 
in  the  year,  do  you  think  the  water  runs  over  the  Wamesit  dam, 
during  the  whole  working  day  ? 

A.  Not  over  three  months. 

Q.  How  positive  are  you  of  that? 

A.  It  is  a thing  I have  observed  constantly,  and  my  business 
calls  me  in  contact  with  it  every  day  — makes  almost  a certainty 
of  it. 

Q.  (B3'  Mr.  Richardson.)  I wish  to  ask  you  if  your  build- 
ings substantially  cover  your  land. 

A.  Yes,  sir  ; we  have  no  spare  land  at  all. 

Q.  Could  the  engine  that  you  have  be  used  permanently,  or  is 
it  only  a temporary  affair  ? 

A.  It  was  only  put  in  as  a temporary  affair.  It  would  not  be 
practicable  to  use  it  as  a constant  source  of  power.  It  is  in  a 
building  right  in  our  main  building,  and  it  could  not  be  practically 
used. 

Q.  Would  it  be  difficult  to  put  in  your  mill  an  engine  of  ten  or 
fifteen  horse-power? 

A.  It  would  not  be  possible  to  put  an  engine  in  the  mill  itself. 
We  have  no  land. 

Q.  You  could  put  it  inside  the  building  by  parting  it  off,  I pre- 
sume? 

A.  We  have  no  room  ; the  place  where  we  have  it  now  is  incon- 


Testimony  of  Frederick  Faulkner. 


681 


venient,  and  the  help  do  not  like  to  work  there.  It  heats  up,  and 
is  very  troublesome. 

Q.  Have  you  made  an  estimate  of  what  it  would  cost  to  procure 
land  and  an  engine  of  fifteen  horse-power? 

A.  Yes,  sir  ; I have. 

Q.  Have  you  had  some  experience  in  running  this  engine? 

A.  Yes,  sir.  • 

Q.  Have  you  made  inquiries  as  to  the  cost  of  land,  engine,  etc.  ? 

Mr.  Butler.  I object.  He  is  not  an  expert.  You  might  as 
well  bring  a man  who  has  run  a threshing-machine  out  West. 

Q.  Do  you  know  the  cost  of  putting  in  the  engine  you  have  got 
there  ? 

A.  Yes,  sir. 

Q.  And  you  have  made  inquiries  as  to  the  cost  of  a new  one? 

A.  Yes,  sir. 

Q.  And  you  have  been  familiar  with  the  running  of  the  engine 
you  have  used  ? 

A.  Yes,  sir, 

Q.  And  you  know  the  value  of  land  in  the  neighborhood,  do  you  ? 

A . Yes,  sir. 

Mr.  Richardson.  I propose  to  put  his  estimate  in,  with  what 
experience  he  has  had. 

Mr.  Butler.  I do  not  see  that  it  comes  within  any  possible 
rule. 

Commissioner  Russell.  We  do  not  think  he  is  qualified  as  an 
expert  as  to  the  cost  of  steam-engines,  because  the  inquiries  could 
be  made  by  any  one,  of  course,  and  if  he  is  an  expert,  you  could 
easily  qualify  any  one  by  setting  him  on  inquiry. 

Mr.  Butler.  I will  help  you  in  one  matter,  brother  Richard- 
son. I will  ask  him,  when  my  turn  comes,  what  this  engine  cost. 


Cross-exam  ination . 

Q.  (By  Mr.  Butler.)  What  did  this  temporary  engine  you 
put  in  there  last  January  cost? 

A.  It  cost  $400. 

Q.  That  includes  everything? 

A.  No,  sir ; that  is  the  cost  of  the  engine. 

Q.  Did  not  the  boiler  go  with  it? 

A.  We  did  not  put  in  any  boiler. 

Q.  How  many  horse-power  does  it  furnish? 

A.  About  ten. 

Q.  You  hitch  it  on  to  the  heating  boiler? 

A.  Yes,  sir. 

Q.  How  many  whole  days  have  you  run  that  engine  since  last 
January. 

A.  I have  no  record  of  it,  but  we  ran  it  several  days  this 
summer. 

Q.  “Several”  may  mean  two,  and  it  may  mean  five  ; how  many 
days  would  you  say  you  have  run  that  engine  this  summer? 

A.  Perhaps  for  two  weeks  this  summer. 

Q.  Will  you  say  it  has  run  for.  two  weeks? 


682 


Testimony  of  Luther#  W.  Faulkner. 


A.  Yes,  sir.  * 

Q.  Has  it  run  since  January  more  than  fourteen  days? 

A.  I can’t  state  the  exact  number  of  days,  — there  have  been 
some  parts  of  days. 

Q.  Will  you  say  it  has  run  fourteen  different  days? 

A.  Yes,  sir,  I will. 

Q.  More  than  that? 

A.  I can’t  say  for  a certainty. 

Q.  Can  you  tell  me  whether  you  have  been  troubled  with  back- 
water this  year  ? 

A.  No,  sir. 

Q.  What  speed  do  you  run  your  cards  ? 

A.  About  ninety  revolutions. 

Q.  How  high  do  you  speed  up  your  spinning? 

A.  The  ordinary  speed  of  woollen  machinery,  such  as  millers 
recommend. 

Q.  They  recommend  now  a good  deal  more  speed  than  they  did 
a few  years  ago,  don’t  they  ? 

A.  I think  the}'  do  not,  in  woollens. 

Q.  You  think  }rou  haven’t  speeded  up  any  in  twelve  years? 

A.  We  have  not. 

Luther  W.  Faulkner,  recalled . 

Q.  (By  Mr.  Richardson.)  Have  you  had  any  experience  in 
putting  up  and  running  a steam-engine? 

A.  I had  a great  deal  of  experience  at  Billerica. 

Q.  How  many  years? 

A.  Fifteen  or  twenty  years. 

Q.  Down  to  what  period? 

A.  Down  to  about  twelve  years  ago. 

Q.  And  during  that  time,  did  you  become  acquainted  with  the 
cost  of  power,  the  cost  of  producing,  and  how  you  produced  it? 

A.  Yes,  sir. 

Q.  Now,  are  you  acquainted  with  the  price  of  coal,  and  the  cost 
of  putting  in  steam-engines,  etc.,  so  that  you  can  give  an  estimate 
of  what  it  would  cost  to  put  an  engine  of  fifteen  horse-power,  and 
procure  the  land  at  your  place  for  it?  Have  you  made  an  exam- 
ination and  inquiry,  so  that  you  feel  competent  to  give  a fair 
estimate  of  what  it  would  cost  to  do  it  there? 

A.  I have. 

Mr.  Butler.  I want  to  ask  a word  or  two  about  the  expertness 
of  Mr.  Faulkner. 

Q.  You  say  you  have  been  acquainted  with  a steam-engine  at 
Billerica,  — more  than  one? 

A.  Yes,  two  or  three  different  engines,  in  the  course  of  twenty 
years. 

Q.  When  was  the  last  one  bought  that  you  had  anything  to  do 
with? 

A.  The  one  that  is  there  now  I have  no  acquaintance  with. 

Q.  When  was  that  put  in? 

A.  I don’t  know  when  that  was  put  in. 


Testimony  of  C.  B.  Snydek. 


683 


Q.  Twenty  years  ago  ? 

A.  I know  nothing  about  that  engine  at  Billerica,  any  further 
than  it  is  not  the  one  I used  to  work  on. 

Q.  Did  you  put  in  the  one  that  is  there  now  ? 

A.  No,  sir  ; I did  not. 

Q.  How  many  years  ago- was  the  one  bought  that  you  used  to 
work  on? 

A.  I don’t  recollect  exactly  those  dates. 

Q.  1840? 

A.  No,  not  so  long  ago  as  that.  I don’t  know  but  the  first  one 
was.  I used  a steam-engine  there  for  twenty  years. 

Q.  That  is,  you  did  not  undertake  to  run  it  yourself,  only  it 
was  run  in  your  mill,  in  -which  you  were  a joint  owner? 

A.  Yes,  sir  ; I had  charge  of  it ; I didn’t  have  an  engineer. 

Q.  Did  you  buy  this  steam-engine  that  you  have  got  in  there 
now  in  your  mill,  — did  you  buy  it  yourself  ? 

A.  Yes,  sir. . 

Q.  You  yourself  made  a bargain  for  it? 

A.  Yes,  sir,  I did  ; it  was  a second-hand  engine. 

Q.  Have  you  ever  bought  any  land  since  you  made  your  first 
purchase  with  water-power  there  at  the  Wamesit? 

A.  We  have  bought  some  from  the  company,  but  the  last  time 
we  made  inquiry  of  the  agent  of  the  Wamesit  Company,  he  told 
'us  — 

Mr.  Butler.  Never  mind  what  he  told  you.  You  made 
inquiry  what  you  could  buy  land  for,  and  he  gave  you  some 
figures.  I object  that  this  gentleman  is  no  more  competent  than 
the  other,  and  not  quite  so  much. 

Witness.  The  estimates  I have  taken  from  the  engine-builders, 
and  the  coal  I took  from  the  price  of  a cargo  I have  just  put  in. 
That  will  show  how  I get  at  those  things. 

Mr.  Butler.  I take  it  anybody  else  can  make  those  inquiries 
as  well  as  this  gentleman. 

Commissioner  Russell.  I suppose  Mr.  Faulkner  may  be  a 
judge  of  the  cost  of  coal  at  the  Wamesit  dam;  but  I do  not  see 
that  he  is  a judge  of  the  cost  of  an  engine,  or  that  he  is  specially 
qualified  to  judge  of  the  cost  of  land.  It  is  evident  he  intends  to 
give  us  the  price  he  found  he  could  get  it  for  upon  inquiry,  and 
not  an  estimate  of  the  value  of  it. 

C.  B.  Snyder,  sworn. 

Q . (By  Mr.  Storey.)  You  are  the  owner  of  the  Chase  mills? 

A.  Yes,  sir. 

Q.  How  many  sets  of  machinery  are  there  in  it? 

A.  Ten  sets. 

Q.  And  what  class  of  goods  do  you  manufacture? 

A.  Fancy  cassimeres. 

Q.  Does  the  machinery  that  you  use  for  the  manufacture  of 
those  goods  require  more  horse-power  than  the  machinery  that  is 
used  for  the  manufacture  of  flannel? 

A.  Yes,  sir. 


684 


Testimony  of  C.  B.  Snyder. 


Q.  About  how  much  horse-power  is  required  for  each  set  of 
fancy  cassimere  machinery? 

Mr.  Butler.  You  need  not  go  into  that.  You  have  about 
forty-eight  feet,  haven’t  you  ? 

Witness.  Yes,  sir. 

Mr.  Butler.  We  will  give  him  about  ninety-six  horse-power. 

A.  It  is  estimated  at  ten  horse-power  to  a set. 

Q.  Has  your  mill  room  for  more  sets  of  machinery  than  you 
have  there  now? 

A.  There  is  room  for  five  sets  more. 


Cross-examination . 

Q.  (By  Mr.  Butler.)  Have  you  ever  had  your  power  weighed 
by  a dynamometer? 

A.  Not  that  I know  of ; I never  have  had  it  done. 

Q.  Didn’t  you  have  it  weighed  at  the  time  we  had  some  trouble 
about  the  water,  or  didn’t  you  own  it  at  that  time? 

A.  I never  had  any  trouble  about  any  water. 

Q.  You  estimate  that  the  ten  sets  required  ten  horse-power 
each? 

A.  Yes,  sir ; I don’t  say  that  it  requires  that  absolutely ; but 
that  is  the  general  estimate. 

Q.  In  practice,  is  there  not  about  four  or  five  horse-power  out 
of  a hundred  always  stopped  for  repairs  or  something  else,  so  that 
ninety-six  horse-power  will  really  do  the  work  of  a hundred. 

A.  I don’t  know  that  to  be  the  case.  It  is  sometimes  the  c^se 
that  part  of  the  machinery  is  stopped. 

Q.  But,  as  a rule,  isn’t  there  about  that  percentage? 

A.  I think  not. 

Q.  You  have  a steam-engine  there? 

A.  Yes,  sir. 

Q.  Did  you  put  it  in? 

A.  No,  sir. 

Q . It  was  put  in  before  you  came  ? 

A.  Yes,  sir. 

Q.  Leaving  out  this  year,  before  the  first  of  January,  how  many 
days  did  you  run  the  steam-engine? 

A.  I don’t  know ; I have  not  the  means  of  knowing. 

Q.  Does  anybody  know  about  your  mill? 

A.  I don’t  know  as  to  that ; there  may  be  somebody. 

Q.  Is  there  any  evidence  to  show  ; were  any  books  kept? 

A.  Not  that  I know  of. 

Q.  Do  you  heat  from  the  same  boiler  that  you  run  your  engine? 

A.  We  have  four  boilers,  two  of  them  connected.  We  use  them 
for  power.  Two  of  them  are  connected,  and  the  other  two  are 
connected. 

Q.  Do  you  make  steam  from  the  same  boiler,  connected  with 
the  same  pressure,  for  heat,  that  you  do  for  running  your  engine? 

A.  The  boilers  are  used  sometimes,  you  know,  when  we  run  the 
engine. 


Testimony  of  Samuel  1ST.  Wood. 


685 


Q.  What  I want  to  know  is,  do  you  run  your  engine  and  heat 
from  the  same  boiler,  at  the  same  time  ? 

A.  What  heat  do  you  mean  ? 

Q.  To  heat  your  mill,  and  to  heat  your  dyestuffs? 

A.  We  only  run  two  boilers  when  we  do  not  run  the  engine. 
Sometimes  we  run  three,  but,  as  a general  thing,  we  only  run  two. 

Q.  You  run  two  boilers  for  dyeing  and  heating  purposes,  and 
two  for  heating  the  engine? 

A.  Yes,  sir ; in  very  cold  weather  we  run  more. 

Q.  How  much  of  the  time  have  you  heated  up  those  two  other 
boilers? 

A.  I don’t  know  ; I don’t  go  there  every  day. 

Q.  Is  there  anybody  who  does  know? 

A.  I presume  there  is  ; but  I don’t  know. 

Q.  Didn’t  }Tou  ever  inquire  ? 

A.  I inquire  almost  every  time  I go  how  the  engine  has  been 
running. 

Q.  Do  you  depend  upon  the  memory  of  the  man,  or  does  he 
keep  some  record? 

A.  There  is  no  record  that  I know  of ; never  has  been. 

Q.  Can  you  say  that  you  ran  the  engine,  prior  to  this  year, 
sixty  days  in  any  one  year? 

A.  I can’t  say  anything  about  it.  Sometimes  I am  not  there 
for  a week  or  ten  days  at  a time. 

Q.  But  inquiring  every  time  you  went,  I thought  you  might 
know? 

A . If  they  say  they  are  not  running  the  engine,  that  is  the  end 
of  it. 

Q.  Is  your  wheel  rated  to  take  3rour  full  power? 

A.  The  wheel  is  rated  exactly  to  the  amount  that  I am  entitled 
to ; that  is,  I gave  it  to  the  man  that  built  the  wheel. 

Q.  If  he  followed  out  your  directions,  it  is. 

A.  Yes,  sir. 

Q.  Now,  suppose  you  are  running  your  mill,  and  the  water  goes 
down,  but  still  leaving  your  gate  untouched,  there  is  water  enough 
to  keep  your  mill  running,  what  do  you  do? 

A.  Why,  we  run  it,  of  course. 


Frederick  Faulkner,  recalled. 

Q.  (By  Mr.  Richardson.)  Were  you  present  when  your  father 
paid  the  money  provided  for  in  the  deed,  $3,000,  when  you  got  the 
additional  water? 

A.  Yes,  sir. 

Q Within  what  time  from  the  date  of  the  deed  was  it  paid? 

A.  Within  one  year  before  the  mill  was  started. 


Samuel  N.  Wood. 

Q.  (By  Mr.  Richardson.)  How  soon  after  you  bought  the  land 
did  you  go  to  work,  and  what  did  you  do  ? 


686 


Testimony  of  Samuel  N.  Wood. 


A.  I think  I bought  the  land  in  1862,  and  built  the  mill  in 
1862,  ’3. 

Q.  When  did  you  put  in  the  flume  and  the  wheel? 

A.  The  same  time. 

Q.  How  did  3rou  construct  the  flume,  — according  to  the  require- 
ments of  the  deed? 

A.  Yes,  sir  ; Mr.  Richards  had  the  supervision  of  it. 

Q.  Have  you  been  in  occupation  ever  since? 

A.  Ever  since. 

Q.  For  what  machinery? 

A.  For  machinery  suitable  to  run  a grist-mill. 

Q.  How  much  power  does  it  take  to  run  the  grist-mill? 

A.  I think  about  twenty  horse-power.  We  have  got  another 
run  of  stone,  but  we  only  run  one  run  of  stone  at  a time. 

Q.  You  have  another  run  besides  that? 

A.  We  have  two  run  of  stones,  small  ones,  so  that  when  one 
gives  out  we  can  use  the  other. 

Q.  And  also  an  elevator? 

A.  An  elevator  and  a bolt  for  bolting  meal. 

Q.  Could  you  supply  steam  in  the  mill  for  any  portion  of  that, 
do  you  think? 

A.  No,  sir,  we  couldn’t  use  steam  at  all. 

Q.  You  would  have  to  lose  the  benefit  of  the  water  you  lost  in 
connection  with  your  building? 

A,  Yes,  sir. 

Q.  Why  couldn’t  you  use  steam  ? 

A.  We  couldn’t  compete  with  water  power  in  grinding. 

Q.  Do  you  know  when  the  Bleachery  put  in  their  flume? 

A.  I think  the  same  year. 

Q.  When  did  Whipple  commence  making  the  canal  spoken  of 
in  the  deed,  and  how  soon  did  he  complete  that  canal  down  to  the 
northerly  line  of  the  Bleachery  ? 

A.  I think  it  was  in  1863. 

Q.  Was  it  going  on  while  you  were  building? 

A.  I think  he  was  building,  — I know  he  was  building  at  the 
same  time  I was  building  mine,  and  he  had  it  so  I could  enter. 

Q.  When  the  canal  was  full  could  you  run  all  the  power  your 
machinery  required  ; was  there  water  for  that  purpose  ? 

A.  Yes,  sir. 

Q.  When  it  was  up  to  the  top  of  the  dam  ? I am  supposing 
that,  starting  in  the  morning,  when  nobody  had  been  using  it, 
taking  it  any  time  that  the  canal  was  full,  was  there  water  enough 
to  run  3rour  machinery  ? Did  you  get  water  enough  at  your  mill 
to  run  your  machinery  when  the  canal  was  full  ? 

A.  Yes,  sir. 

Q.  Would  it  deliver  enough  to  run  3’our  machine^? 

A.  Yes,  sir. 

Q.  I mean,  from  there  down,  would  it  convey  the  water,  if  it 
was  not  taken  away  before  it  got  there  ? 

A.  I don’t  know  about  the  capacit3r  of  the  canal ; I am  no  en- 
gineer, but  I suppose  it  would. 

Q.  I will  ask  3’our  practical  knowledge,  with  what  water  there 
was  in  the  canal  could  you  run  3'our  mill  ? 


Testimony  of  Samuel  N.  Wood. 


687 


A.  Yes,  sir. 

Q.  How  low  would  the  water  have  to  flow  so  that  you  could  not 
run  at  all? 

A.  I can  run  that  wheel  when  it  is  two  feet  in  the  canal. 

Q.  How  deep  is  your  canal? 

A . Six  feet.  I should  think  it  six  feet  or  more. 

Q.  Was  the  water  ready,  down  to  the  Bleachery  line,  to  be 
delivered  to  the  canal  as  soon  as  it  was  at  your  land?  Did  they 
go  on  digging  and  complete  it  ? 

A.  Yes,  sir. 

Q.  And  you  could  use  it  together  ? 

A.  Yes,  sir. 

Q.  When  the  commissioners  were  up  there,  there  did  not  appear 
to  be  any  water  running  to  your  mill  whatever,  — you  were  there  ? 

A.  Yes,  sir. 

Q.  I want  to  know  if  at  times,  years  ago,  such  a condition  of 
things  took  place  ? 

A.  Well,  sir,  it  has  been  so  at  times  ever  since  I have  been 
there,  you  might  say. 

Q.  Were  the  other  mills  running  at  the  same  time  when  this 
would  occur? 

A.  Yes,  sir. 

Q.  Was  there  any  other  obstruction  in  the  canal  that  you  know 
of  that  would  prevent  the  water  coming  down  to  your  place  had  it 
not  been  used  up  before  it  got  there  ? 

A.  No,  sir ; I have  at  times  when  the  canal  was  dry  walked 
over  it ; I have  gone  up  the  canal  and  found  the  other  mills  run- 
ning, and  I have  been  up  at  the  dam  to  see  where  the  water  was, 
and  it  was  up  to  the  permanent  dam  at  that  time. 

Q.  Did  you,  instead  of  asserting  your  right  to  the  use  of  the 
water  above,  or  settling  the  controversy,  make,  with  those 
who  held  the  Wamesit  power  land  then,  any  arrangement  that 
you  should  run  at  any  other  times,  so  that  it  would  be  un- 
necessary to  settle  the  controversy  ? 

A.  When  Mr.  Patch  was  in  possession  there,  we  made  an 
arrangement  to  run  nights,  and  he  paid  my  miller  extra  for 
doing  so. 

Q.  When  the  water  is  low  in  your  canal,  and  plenty  of  it  up 
there,  have  you  taken  your  share  at  night,  so  that  they  might  use 
the  portion  that  you  claimed  belonged  to  you  in  the  daytime  ? 

A.  Yes,  sir ; and  when  they  shut  down  at  noon  we  can  get 
water ; and  the  men  would  get  up  there,  perhaps,  at  five  o’clock  in 
the  morning,  before  they  would  begin  running,  and  run  as  long  as 
they  could. 

Q.  Run  how  long? 

A.  Just  according  as  the  water  will  keep  up.  Sometimes  they 
would  shut  down  at  nine  o’clock,  and  then  they  would  run  from 
twelve  to  one  or  from  one  to  two. 

Q.  That  is,  while  the  other  mills  were  shut  down? 

A.  That  is,  while  the}7  have  gone  to  dinner  and  shut  down.  We 
would  run  so  that  we  could  get  out  the  quantity  of  meal  we  needed 
which  we  wanted  to  use.  We  would  run  as  little  at  night  as  we 
could  help. 


688 


Testimony  of  Samuel  N.  Wood. 


Q.  Only  Tvhen  you  couldn’t  get  water  da}Ttimes? 

A.  Yes,  sir. 

Q.  You  grind  and  sell  your  own  meal? 

A.  Yes,  sir. 

Q.  Practically,  among  the  Wamesit  Power  Company  and  all  the 
other  mill-owners  above,  there  has  never  been  any  particular  set- 
tlement as  to  the  division  of  water  among  them,  has  there  ? 

A.  Not  that  I am  aware  of. 

Q.  Is  the  flume  of  the  Wamesit  Power  Company  lower  than  the 
bottom  of  this  canal? 

A.  Yes,  sir  ; than  the  bottom  of  our  little  canal. 

Q.  Was  the  canal  any  higher  when  it  was  constructed,  except 
the  wash  of  gravel  anywhere  below,  than  it  was  at  the  Wamesit 
outlet  ? 

A.  I don’t  understand. 

Q.  I mean,  supposing  this  canal  was  constructed  to  take  the 
water  that  stood  in  the  canal  opposite  the  Wamesit  flume,  would 
it  have  flown  down  to  your  place  ? 

A.  Yes,  sir. 

Q.  Has  there  been  any  obstruction  except  the  wash  of  gravel 
in  the  stream? 

A.  No,  sir. 

Q.  Has  there  been  any  other  obstruction  than  what  we  could 
see? 

A.  No,  sir. 

Q.  Where  is  the  largest  obstruction  in  the  canal  caused  by  the 
wash,  before  it  gets  to  you  ? 

A.  Well,  it  is  along  by  the  cartridge  shop,  and  down  as  far  as 
it  enters.  The  whole  of  the  canal  has  been  tilled  up  more  or  less 
in  the  construction  of  the  cartridge  shop  and  the  w'ater  works. 

Q.  The  water  of  your  wheel,  would  it  formerly  have  drawn  the 
canal  dry  clear  down  to  your  place  ? 

A.  Yes,  sir. 

Q.  As  the  water  turns  into  the  flume  of  the  W amesit  it  makes 
an  eddy,  don’t  it  ? 

A.  It  does. 

Q.  Whether  or  not  there  is  more  gravel  there  than  at  an}7  other 
place  ? 

A.  There  is  enough  there  to  stop  the  water  from  going  into 
that  canal,  and  then  there  is  more  or  less  in  the  canal. 

Q.  How  long  would  it  take,  in  }’our  judgment,  to  clear  out  the 
gravel  so  as  to  make  it  as  it  was  when  you  could  use  all  the  water  ? 

A.  Two  or  three  da}Ts. 

Q.  Give  the  size  of  }rour  canal,  below  the  Wamesit,  down  to 
the  northerly  line  to  the  Bleachery  dam,  where  it  enters  their 
flume. 

A.  I never  measured  it,  but  I should  say  it  was  about  six  feet 
deep  and  eight  or  ten  feet  wide.  I don’t  know  but  it  is  12  feet 
wide.  I never  measured  it.  This  is  merely  as  far  as  my  judg- 
ment would  go. 


Testimony  of  Samuel  N.  Wood. 


689 


Cross-examination . 

Q (By  Mr.  Butler.)  How  many  men  would  it  take  two  days 
to  clear  out  the  gravel  of  your  canal  that  has  washed  in  ? 

A.  If  they  were  smart,  and  worked  well,  I should  say  two  men, 
in  three  or  four  days,  would  clean  it  out  well. 

Q.  You  never  have  done  any  cleaning,  have  you? 

A.  No,  sir. 

Q.  You  have  suffered  this  inconvenience  for  some  years,  haven’t 
you? 

A.  I consider  that  I have  no  right  to  enter  the  canal  to  clean  it 
out,  only  at  the  head  of  my  flume. 

Q.  Nobody  has  ever  objected  to  your  entering  to  clean  it  out? 

A.  No,  sir. 

Q.  You  don’t  own  the  canal-bed?  Your  land  does  not  extend 
to  cover  the  canal-bed  ? 

A.  No,  sir  ; up  to  the  canal. 

Q.  When  you  first  put  in  your  wheel,  you  put  in  a 25  horse- 
power wheel,  didn’t  you? 

A.  No  ; I put  in  a 40  horse-power ; larger  than  what  was  neces- 
sary. 

Q You  put  in  a 40  horse-power  wheel,  and  then  we  brought  a 
bill  in  equity  against  you,  and  you  fixed  a wheel  which  covered 
about  twenty,  didn’t  you,  or  meant  to  ? 

A.  Yes,  sir. 

Q.  Then  you  used  to  run  the  full  power  of  your  wheel,  didn’t 
you,  when  there  was  water  enough  ? 

A.  No,  sir ; I stop  on  it. 

Q.  Since  that  time,  the  Wameset  canal,  the  canal  opposite  the 
Wamesit  Company,  was  so  up  along  towards  Stott’s  mill,  had 
been  cleaned  out  and  deepened? 

A.  The  upper  canal  had. 

Q.  So  that  practically  your  canal  is  higher  than  the  canal 
coming  down  to  it? 

A.  No,  sir ; it  has  been  widened  up  there,  I suppose.  I don’t 
know  that  it  has  been  deepened  much. 

Mr.  Butler.  I guess  they  cleaned  it  out. 

Witness.  Well,  there  is  need  enough  of  it.  I am  not  aware 
that  they  have  cleaned  it  out.  I only  know  that  when  there  is  any 
water  up  there,  it  comes  down  and  I can  draw  it. 

Q.  What  happens  to  you  is  this  : The  neighbors  above,  some 

of  them,  really  carry  off  all  your  water:  isn’t  that  it?  They  for- 
get to  shut  down  the  gates  when  the  water  comes  down  ? 

A.  I don’t  know  a^dhing  about  that.  I know  the  water  don’t 
come  down  to  me. 

Q.  When  there  is  water  enough,  practically,  at  the  gates,  if  it 
was  divided  properly,  when  it  gets  down  to  you,  it  is  gone?  That 
is,  when  there  is  a full  pond? 

A.  Yes,  sir, 

Q.  And  to  remedy  that  evil,  so  far  as  the  Wamesit  power  was 
concerned,  they  told  you  you  might  run  nights? 

A.  We  have  tried  to  accommodate  them  when  they  are  short  of 


690 


Testimony  of  Fordice  Coburn. 


water.  All  we  want  to  do  is  to  get  our  meal  out.  We  can  run 
nights  better  than  you  can,  because  we  can  run  quietly ; but  there 
is  a great  deal  of  inconvenience  in  running  nights.  Our  customers 
come  for  us,  and  the  millers  have  to  sleep  daytimes.  There  is 
considerable  inconvenience  in  running  nights. 

Q.  But  there  is  always  water  enough  there  to  run  nights,  isn’t 
there  ? 

A.  We  never  have  had  any  difficulty  about  that,  that  I am 
aware  of. 

Q.  Mr.  Richardson.)  Haven’t  you  requested  the  Wame- 
sit  Compan}^  to  remove  the  sand? 

A.  I can’t  remember  in  regard  to  that,  any  further  than  I might 
have  spoken  to  Mr.  Tilton,  and  told  him  I thought  it  ought  to  be 
removed,  ought  to  be  cleared  out.  I think  I have. 

Mr.  Richardson.  I put  in  chapter  2 of  the  Acts  of  1833,  in- 
corporating the  Bleachery  Company,  and  chapter  52  of  the  Acts  of 
1847,  increasing  the  capital  stock  of  the  company. 


Fordice  Coburn,  sworn. 

Q.  (By  Mr.  Richardson.)  How  long  have  you  had  charge  of 
the  Bleachery  works  as  foreman? 

A.  About  thirty-five  3rears. 

Q.  This  piece  of  land  adjoins  their  great  works,  does  it? 

A.  Yes,  sir. 

Q.  What  are  the  mills  there,  and  what  do  you  do? 

A.  We  make  what  we  call  bleached  goods,  and  color  and  print 
them. 

Q.  Do  you  remember,  after  this  deed  was  made,  the  construc- 
tion or  the  extension  of  the  canal  down  to  your  works  ? 

A.  No,  sir. 

Q.  You  don’t  remember  that  the  canal  was  ever  built? 

A.  Yes,  I remember  the  canal.  You  asked  me  about  the  deed. 
Q.  Did  you  have  the  care  then? 

A.  Yes,  sir. 

Q.  Was  it  finished  then,  or  has  it  been  finished  since? 

A.  It  was  finished  after  they  bought  it. 

Q.  When  did  you  put  in  }x>ur  flume  after  that  ? 

A.  I think  it  was  in  1863. 

Q.  What  I meant  was,  was  the  canal  finished  down  to  that 
when  the  flume  was  finished? 

A.  Yes,  sir  ; that  was  in  ’63,  I think. 

Q.  When,  if  ever,  did  }tou  put  a wheel  into  the  flume? 

A.  That  I am  not  positive  of.  I think  in  1865. 

Q.  How  large  power  was  the  wheel? 

A.  I think  75  horse-power. 

Q.  How  much  power  was  required  to  run  all^your  machinery  on 
that  wheel? 

A.  We  have  never  run  over  what  we  call  eight  horse-power  with 
it  at  any  time. 

Q.  Now  please  state  what  the  purpose  was  in  having  a wheel  of 
that  size  when  it  was  constructed  ? 


Testimony  of  Fordice  Coburn. 


691 


A.  Well,  it  was  to  run  our  repair-shop,  and  drive  a force-pump 
in  case  of  fire. 

Q.  For  the  whole  region  ? 

A.  Yes,  sir. 

Q.  Have  you  ever  had  occasion  to  use  it  since  that  time  to  put 
out  a fire  ? 

A.  We  have. 

Q.  How  many  times  ? 

A.  I think  twice. 

Q.  Is  there  land  enough  within  this  Bleachery  enclosure,  where 
you  could  put  up  other  buidings  for  mill-power  ? 

A.  Yes,  sir. 

Q.  For  the  whole  75  horse-power? 

A.  Yes,  sir. 

Q.  How  much  of  the  time  do  you  use  it  for  your  power? 

A.  I can’t  say  that  we  never  use  it  for  any  work  except  to  run 
the  repair-shops.  We  never  use  it  when  our  mill  is  running  by 
steam  power.  We  use  it  in  case  of  accident,  or  an}Tthing  of  that 
kind. 

Q.  For  what  other  purposes  do  you  use  that  water? 

A.  Washing,  bleaching,  coloring,  and  all  that  is  required  for 
doing  such  work. 

Q.  What  sources  for  that  supply  have  you,  if  you  have  any 
other  than  this  ? 

A.  We  have  the  city  water. 

Q.  What  else? 

A.  We  have  the  water  of  the  brook,  that  we  can  pump. 

Q.  Is  there  any  apparatus  connected  with  this  flume  for  the 
purpose  of  using  that  water  for  bleaching  and  dyeing  ? 

A.  Yes,  sir. 

Q.  How? 

A.  By  pipes  carried  out  of  the  flume. 

Q.  State  what  the  arrangement  is  at  the  flume  to  convey 
water  over  the  works,  and  what  it  is  used  for? 

A.  It  is  used  for  bleaching,  washing,  the  boilers,  and  anything 
that  is  required  in  the  establishment  for  bleaching  or  coloring. 

Q.  When  your  works  are  running  full , how  much  water  do  }^ou 
use  for  those  purposes  a day  ? 

A.  I can’t  tell. 

Q.  About  how  much?  You  have  got  some  estimate,  have  jrou 
not? 

A.  I have  estimated  about  how  much  city  water  it  would  take. 
We  could  not  get  along  with  less  than  three  thousand  gallons  a 
minute,  with  the  work  we  are  doing.  When  it  is  in  full  operation, 
it  will  require  more. 

Q.  How  much  more? 

A.  Say  another  thousand  gallons. 

Q.  Won’t  you  describe  the  way  the  water  is  delivered  from  this 
flume,  how  you  get  it  over  your  works,  and  the  extent  of  the 
delivery  ? 

A.  The  flume  is  carried  into  our  yard,  and  there  we  take  the 
water  from  a pipe  at  this  flume  and  the  different  pipes  connected. 


692 


Testimony  of  Fordice  Coburn. 


Q.  How  many  of  them  have  you  got  that  take  the  water? 

A.  I cannot  tell  that  very  easy. 

Q.  Well,  capable  of  carrying  how  much? 

A.  I cannot  tell  that ; I have  no  figures  ; but  we  have  probably 
forty  different  places  to  deliver  it. 

Q.  Could  you  get  the  whole  amount  of  that  water  out  of  your 
pipes  if  it  was  there  ? 

A.  Yes,  sir  ; we  could  get  all  we  wanted. 

Q.  Now  state  what  the  arrangement  is  as  to  pumping  up  from 
the  river. 

A.  We  have  pumps. 

Q.  What  is  the  power  to  run  those? 

A.  I cannot  tell  that. 

Q.  What  is  the  power  ; is  it  water  or  steam? 

A.  Oh,  steam. 

Q.  What  do  you  have  to  pay  per  thousand  gallons  for  the 
water  of  the  city  which  you  take  for  this  purpose  ? 

A.  Twenty  cents. 

Q.  When  that  canal  was  constructed  would  the  water  in  it  all 
pass  out  through  your  flume,  if  you  shut  the  gates  at  the  river  and 
the  other  gates  along  the  canal? 

A.  It  would  all  pass  out  above,  as  far  as  the  Wamesit  power.  I 
can’t  say  as  to  above  that.  I have  seen  the  canal  perfectly  dry 
there. 

Q.  How  is  the  Wamesit  power  flume  at  the  point  where  it 
comes  into  the  canal  ? Is  it  on  a level  with  it  or  below  ? 

A.  I can’t  say  how  it  is  now.  A couple  of  years  ago  it  was 
below. 

Q.  You  have  had  some  difficulty  as  well  as  Mr.  Wood,  as  to  the 
supply  of  water? 

A.  We  have  had  no  water  at  times,  and  at  times  we  have  had 
plenty. 

Q.  When  you  started  in  the  morning  were  you  capable  of 
taking  water,  generally  ? 

A.  Yes,  sir.  I don’t  recollect  any  times  but  what  we  had 
water  in  the  morning  when  we  started. 

Q.  That  has  arisen  out  of  the  practical  difficulties  of  dividing 
the  water  above,  has  it  not? 

A.  I don’t  know  how  that  is.  Certainly  we  do  not  get  it  after  a 
certain  time  ? 

Q.  Do  you  know  how  much  it  costs  to  pump  water  up  from 
’the  river? 

A.  I don’t. 

Q.  What  quantities  do  you  pump  up  from  the  river,  and  do  you 
pump  from  the  river  when  you  can  get  it  from  this  canal? 

A.  No,  sir. 

Q.  Is  it  cheaper  and  better  to  use  this  canal  water  than  the 
water  of  River-meadow  brook  ? 

A.  The  Concord  water  is  cheaper. 

Q.  (By  Commissioner  Russell.)  How  high  do  you  pump  it? 

A.  Sixteen  or  eighteen  feet. 


Testimony  of  Fordice  Coburn. 


693 


Q.  (Ify  Mr.  Richardson.)  How  much  higher  is  the  water  of 
the  full  canal  than  the  water  of  the  brook? 

A.  When  the  canal  is  full  it  is  nearly  twenty  feet. 


Cross-examination . 

Q.  (By  Mr.  Butler.)  The  Bleachery  was  established  some 
time  about  1833,  was  it  not? 

A.  1832  or  1833,  I think. 

Q.  And  they  depended  upon  River-meadow  brook  for  their 
supply  of  water  down  to  1862? 

A.  No. 

Q.  Where  did  they  get  it? 

A.  They  got  it  from  Concord  river. 

Q.  Which  way  did  they  take  it? 

A.  The  same  way  they  get  it  now. 

Q.  That  was  in  1862,  wasn’t  it? 

A.  No  ; I think  they  got  it  from  there  in  1844,  ’5  or  ’6. 

Q.  What,  through  the  canal? 

A.  No.  There  was  a canal  there ; not  this]  same  canal,  but 
there  was  a canal. 

Q.  Now,  practically,  is  Concord  river  water  fit  for  bleaching? 

A.  We  have  to  use  it.  Yes,  sir,  it  is,  for  certain  parts  of  it. 
It  won’t  do  very  well  for  white  goods,  the  last  rinsing. 

Q.  Now,  then,  in  1864  or  ’65,  this  canal  was  bought,  and  the 
right  to  take  so  many  feet  of  water.  The  object  of  that  was  to 
have  a power  which  could  be  made  instantly  applicable,  whenever 
your  steam  power  was  out  of  order,  out  of  gear,  or  the  boilers 
were  not  heated,  so  that  you  could  be  sure  to  have  the  fire-pump 
applied  nights  and  Sundays? 

A.  Yes,  sir. 

Q.  And  it  has  been  substantially  used  for  that  ? 

A.  Yes,  sir. 

Q.  Nights  and  Sundays,  there  is  always  plenty  of  water  now, 
is  there  not? 

A.  I think  there  is,  as  a general  thing.  Sometimes  there  is  no 
water  Sundays,  I have  noticed. 

Q.  That  is  when  they  repair  the  canals? 

A.  Yes,  sir. 

Q.  But  suppose  they  open  the  gates  ? 

A.  Yes,  sir,  I should  think  there  would  always  be  water  there. 

Q.  And  sometimes,  when  your  neighbors  above  draw  too’  much, 
do  not  have  any  water  through  the  whole  day  ? 

A.  I don’t  know  whether  the  gates  are  shut  down  or  not.  But 
not  through  the  whole  day.  No,  there  is  no  day  when  we  are  cut 
off  entirely,  — working  daj’s. 

Q.  You  have  it  in  the  morning,  but  in  the  afternoon  it  gets 
very  low? 

A.  We  have  it  from  twelve  until  two  o’clock,  very  often. 

Q.  That  is,  when  they  shut  down  at  noon,  you  get  it? 

A.  Yes,  sir. 

Q.  You  have  to  use  for  bleaching  purposes,  three,  four  or  five 
thousand  gallons  a minute? 


694 


Testimony  of  Fordice  Coburn. 


A.  Yes,  sir. 

Q.  And  to  supply  that  from  the  city,  you  think  would  cost 
twenty  cents  a thousand  gallons  ? 

A.  Yes,  sir. 

Q.  Well,  how  much  of  the  time  isn’t  there  water  enough  to  sup- 
ply at  least  three  thousand  gallons  a minute  in  your  flume  ? 

A.  Well,  I can’t  say;  I can  only  guess  at  it.  Perhaps  there 
would  be  five  or  six  weeks  in  a season. 

Q.  Five  or  six  weeks  in  a year? 

A.  Yes,  sir. 

Q.  That  is,  reckoning  all  the  da}rs  together? 

A.  Yes,  sir ; I should  not  reckon  Sundays.  Reckoning  week 
days. 

Q.  (By  Commissioner  Russell.)  How  much  of  your  water  are 
you  obliged  to  use,  not  from  the  Concord?  What  proportion  of 
greater  purity  than  the  Concord  water  will  give  you  ? 

A.  I can’t  say  as  to  that.  We  pump  a good  deal  of  spring 
water  from  other  sources  ; from  the  Merrimack,  or  the  Concord,  for 
our  “ white  goods,”  as  we  call  bleached  goods.  That  is,  we  pump 
it  for  the  last  rinsing.  And  since  the  city  water  was  put  in,  we 
have  used  some  of  that,  but  I can’t  say  how  much.  If  we  had 
Concord  river  water,  we  should  not  use  but  very  little  city  water. 

Q.  Are  your  fire-pumps  connected  with  any  other  power  than 
Concord  river? 

A > No,  sir  ; we  use  steam-power.  We  have  one  fire-pump  con- 
nected with  the  steam-engine. 

Q.  (By  Commissioner  Stevens.)  This  pump  is  not  connected 
with  the  steam-engine? 

A.  No,  sir  ; not  that  one. 

Q.  (By  Commissioner  Russell.)  My  question  is,  whether  your 
force-pumps,  to  be  used  in  case  of  fire,  are  connected  with  any 
other  power  than  that  which  you  get  from  Concord  river  ? 

A.  Yes,  sir  ; the}’  are. 

Q.  (By  Mr.  Richardson.)  Can  you  run  them  with  an}Tthing 
else  than  the  Concord  river  wTater? 

A.  Yes,  sir,  we  can  ; some  of  them. 

Q.  (By  Mr.  Butler.)  For  instance,  — let  me  put  a question 
which  I think  will  illustrate  it.  Suppose  you  had  a fire,  and  your 
steam-engine  was  running,  you  would  put  on  your  steam  force- 
pump? 

A.  Yes,  sir. 

Q.  If  your  steam-engine  was  not  running,  you  would  put  on  the 
water  ? 

A.  If  there  was  a fire,  and  we  needed  them,  we  should  put  on 
the  water  and  steam  both.  But  we  are  connected  with  the  city 
water  now,  and  we  hope  we  shall  not  need  either  of  them. 

Q.  Now,  3’ou  are  dependent  upon  the  head  of  the  city  water? 

A.  Yes,  sir. 

[Adjourned  to  Thursday , at  9J  o'clock.] 


Testimony  or  Joseph  P.  Frizell. 


695 


Thursday,  October  12th. 

The  commissioners  met  at  9.30.  A.  M. 

Joseph  P.  Frizell,  recalled. 

Q.  (By  Mr.  Richardson.)  Will  you  give  a statement  of  what 
is  the  cost,  either  with  interest  and  depreciation  or  without  it,  of 
pumping  water? 

A.  From  the  various  results  of  different  pumping-works,  about 
a fair  average  would  be  about  twelve  cents  per  million  gallons, 
raised  one  foot.  That  does  not  include  interest  and  depreciation. 

Q.  And  a corresponding  increase  the  higher  you  go?  Is  that 
the  measure  when  you  multiply  by  the  number  of  feet? 

A.  Any  greater  number  of  feet  would  be  in  the  same  ratio. 

Q.  That  includes  the  expense  of  pumping  — not  the  cost  of 
machinery,  or  depreciation  ? 

A.  It  would  not  include  interest  or  depreciation. 

Cross-examination. 

Q.  (By  Mr.  Butler.)  But  after  you  got  your  plant,  to  raise  it 
one  foot,  the  next  foot  I take  it  would  be  substantially  cheaper. 
After  you  had  got  your  fire  up,  and  your  steam  up,  to  raise  it  one 
foot,  the  next  foot  would  be  raised  a little  easier  or  cheaper,  would 
it  not? 

A.  Not  one  foot.  It  is  only  a question  of  raising  it  one 
foot. 

Q.  Without  stopping  to  spend  time  upon  that,  will  you  tell  me 
how  many  cubic  feet  per  second,  or  parts  of  a cubic  foot,  five 
thousand  gallons  a minute  would  be? 

A.  (After  making  a calculation.)  I make  it  out  about  eleven 
cubic  feet  per  second.  A million  gallons  a day  is  equal  to  1.55 
cubic  feet  per  second. 

Q.  How  many  gallons  in  a cubic  foot? 

A.  Seven  and  a half. 

Q.  Now  Mr.  Frizell,  I want  to  ask  you  another  question  : what 
is  the  average  yield  of  the  Merrimack  water-shed?  Take  your 
unit  of  measure  whatever  you  please,  either  an  acre  or  a square 
mile? 

A.  I am  not  able  to  say. 

Q.  From  so  much  rain  how  much  do  you  get  into  the  river? 

A.  I am  not  able  to  say  how  much. 

Q.  I suppose  it  is  the  same  with  the  Sudbury? 

A.  I have  no  means  of  knowing  what  amount  of  rainfall  is 
collectable  on  the  Sudbury. 

Q.  What  I want  to  call  your  attention  to  is  this : Brother  Shat- 
tuck  says  the  minimum,  on  the  Concord  river  is  one-third  of  a foot 
per  square  mile,  and  the  minimum  on  the  Merrimack  is  six-tenths 
of  a foot  per  square  mile.  Do  you  know  of  any  cause  that  should 


696 


Testimony  of  Joseph  P.  Feizell. 


make  that  difference  in  the  supply  of  the  water?  Do  you  know  of 
anything  in  the  two  rivers  that  would  make  that  difference,  — one- 
third  in  one  case  for  the  yield,  and  six-tenths  in  the  other? 

A.  Nothing  but  the  extent  of  the  drainage  ground. 

Q.  Well,  that  is  six- tenths  of  a foot  per  square  mile? 

A.  Per  second,  sir,  as  I understand  it. 

Q.  Which  square  mile  would  be  the  largest,  on  the  Merrimack 
or  on  the  Concord  ? 

A.  1 suppose  the  square  mile  is  the  same  in  the  one  case  as  in 
the  other.  The  drainage  ground  is  greater  on  the  Merrimack  than 
on  the  Concord. 

Q.  Well,  then,  you  would  agree  substantially  would  you,  to  this  : 
That,  taking  the  great  extent  of  drainage  area,  we  should  find  that 
difference? 

A.  Well,  we  evidently  do  find  it. 

Q.  That  is  the  statement ; I only  wanted  it  in  evidence.  Now, 
did  you  make  that  calculation  that  I asked  }tou  yesterday  to  make  : 
suppose  the  water  is  drawn  down  every  night  to  the  top  of  the 
permanent  stone  dam,  what  would  be  the  flow  of  water  to  be 
depended  upon  at  the  Wamesit  dam  for  the  use  of  the  canal? 

A.  As  compared  with  the  condition  of  things  when  the  water  is 
allowed  to  stand  at  the  top  of  the  flash-boards  all  the  time,  you 
mean  ? 

Q.  Or  running  over,  as  the  case  would  be? 

A.  There  are  no  exact  data  to  determine  that  question.  You 
can  get  an  approximate  idea  of  the  effect  of  such  an  arrangement, 
to  do  that,  — if  you  know  the  extent  of  the  pond  above  the  dam. 
(You  can  make  it  out  from  the  map.  The  pond  is  about  three 
miles  long  ; you  have  no  means  of  knowing  how  wide  it  is.  Assume 
it  to  be  300  feet  wide.  According  to  the  map  it  is  a little  over 
three  miles  from  the  Wamesit  dams  to  the  North  Billerica  dam  — 
according  to  the  State  map.)  Then,  taking  those  figures,  that 
would  illustrate  what  I mean  : supposing  jmu  had  a pond  three 
miles  long  and  300  feet  wide,  and  you  can  vary  the  water  eight 
inches  on  that  pond,  that  would  be  equivalent  to  a storage  capacity 
of  about  16,000  feet  by  200.  It  would  be  two  hundred  times 
16,000  cubic  feet.  It  would  be  3,200,000  cubic  feet  to  be  distri- 
buted over  a period  of  about  40,000  seconds.  That  would  increase 
your  quantity  of  water,  as  compared  with  the  other  supposition,  by 
about  80  cubic  feet  per  second. 

Q.  And  it  would  diminish  the  power  in  the  canal,  if  it  was 
drawn  down  that  way,  about  80  cubic  feet  per  second.  If  it  was 
drawn  down  even  with  the  top  of  the  dam,  and  left  there  ready  to 
begin  in  the  morning,  instead  of  being  drawn  down  to  the  top  of 
the  flash-boards,  it  would  diminish  the  power  about  80  cubic  feet 
per  second  ? 

A.  I don’t  know  that  it  would  diminish  the  power. 

Q.  Then  you  and  I don’t  understand  each  other.  If  the  dam 
gives  so  much  with  the  water  at  the  top  of  flash-boards,  utilizing 
the  jSond,  and  then  you  draw  the  pond  down  regularly  to  the  height 
of  the  permanent  stone  dam  to  start  with? 

A.  Do  you  mean  to  start  in  the  morning  at  the  height  of  the 
permanent  stone  dam  ? 


Testimony  of  Joseph  P.  Fkizell. 


697 


Q.  Yes,  sir. 

A.  I don’t  understand  you  proposition.  I supposed  you  wanted 
to  avail  yourself  of  the  storage  capacity  of  the  pond. 

Q.  No,  sir.  I assume  that  that  belongs  to  somebody  else,  and 
that  he  takes  it  and  carries  it  off  in  the  night-time.  Now  we  start 
in  the  morning  with  the  water  at  the  top  of  the  permanent  stone 
dam  — what  would  be  the  amount  of  water  that  would  be  diminished 
in  the  canal,  from  what  you  say  now  it  would  give  with  the  flash- 
boards  on.  Of  course  it  would  be  80  feet  less,  would  it  not? 

A.  I don’t  know  that  I understand  your  last  proposition. 

Q.  I will  state  it  again.  I suppose  that  you  have  given  what  is 
the  capacity  of  the  river,  keeping  the  dam  up  eight  inches  higher 
than  the  stone  dam  is,  by  means  of  flash-boards? 

A.  What  I have  endeavored  to  give  is,  the  power  that  would  be 
gained  by  the  use  of  the  storage  capacity  of  the  pond  above  the 
dam. 

Q.  I understand  that  is  what  you  have  just  given,  — what  would 
be  gained;  but  gained  from  what? 

A.  Gained  from  what  would  be  available  by  keeping  the  surface 
of  the  water  constantly  at  the  top  of  the  flash-boards,  or  any 
constant  height. 

Q.  It  would  be  gained  by  that,  but  gained  from  what  point? 

A.  Gained  above  the  power  that  would  be  available  by  keeping 
the  surface  of  the  water  at  any  constant  height. 

Q.  Up  to  the  stone  dam  ? 

A.  Anywhere  you  please. 

Q.  It  must  be  at  the  stone  dam,  because  you  only  take  a storage 
capacity  of  eight  inches  above  the  stone  dam.  Now,  when  you 
gave  us  the  amount  of  water  that  could  be  made  available  through 
the  canal,  did  )tou  give  it  to  us  as  an  amount,  including  that  which 
was  stored  with  the  flash-boards  on,  or  only  including  that  which 
was  stored  by  the  stone  dam  ? 

A.  When  I gave  the  quantity  of  water  that  could  be  depended 
upon  as  the  result  of  my  measurements,  I gave  it  on  the  supposi- 
tion that  water  was  being  drawn  during  the  night,  as  it  is  at 
present ; I gave  it  on  the  supposition  that  water  was  to  be  drawn 
during  the  night,  as  it  was  during  our  measurements. 

Q.  How  was  it  being  drawn  during  the  night  during  your 
measurements?  And  do  you  know  how  much  was  measured? 
Whether  it  was  going  over  the  dam  or  through  the  wheels,  you 
didn’t  know,  I suppose? 

A.  I knew  it  was  not  going  over  the  dam. 

Q.  Now,  have  you  any  idea,  with  the  dam  fully  up  to  the  top  of 
the  flash-boards,  what  would  be  the  capacity  of  that  canal,  i.  e., 
how  much  water  would  go  through  it? 

A.  I believe  I have  stated  how  much  water  was  observed  to  go 
through  it  under  that  condition. 

Q.  Now  if  the  storage  eapacity  of  the  flash-boards  was  eighty 
cubic  feet,  would  not  the  amount  be  eighty  cubic  feet  less,  if  kept 
down  to  the  top  of  the  dam? 

A.  Not  necessarily. 

Q.  Presumably  so? 


698 


Testimony  of  Joseph  P.  Frizell. 


A.  What  amount?  The  amount  that  would  go  through  the 
canal? 

Q.  Yes,  sir. 

A.  Less  water  would  be  drawn  through  the  canal. 

Q.  That  is  exactly  what  I want  to  get  at.  I understand  that 
there  would  be  less  as  well  as  anybody. 

A.  I think  I have  given  you  the  quantity  passing  through  the 
canal  at  different  heights  of  water,  as  observed  near  Wamesit 
dam. 

Q.  That  is  not  the  point,  Mr.  Frizell.  You  have  come  here  to 
instruct  us  by  your  testimony  upon  the  capacity  of  that  river  to 
supply  the  water-takers  on  the  canal. 

A.  As  far  as  I have  been  able  to  ascertain. 

Q.  To  the  best  of  your  knowledge  and  belief. 

A.  I should  have  to  study  the  subject  about  three  years  to 
answer  every  question  that  could  be  asked  on  the  subject. 

Q.  All  that  may  be  so  ; I don’t  want  to  say  exactly  what  I think 
on  that  matter.  But  listen  to  my  question,  and  when  we  get 
through,  answer  it  if  you  can  ; or,  if  you  cannot,  say  so.  You  come 
here  to  tell  us,  according  to  your  best  knowledge  and  belief,  how 
much  water  would  be  supplied  through  that  canal  to  the  water- 
takers  on  the  case,  by  Concord  river.  Was  that  estimate  made 
upon  the  use  of  the  flash-boards  as  a storage-power,  or  without 
them?  That  is  the  whole  question. 

A.  That  estimate  did  not  include  the  gain  that  could  be  made 
by  storing  water  at  night. 

Q.  It  did  not  include  the  gain  that  could  be  made  by  storing 
water  at  night,  you  say.  Then  there  wrould  be  just  as  much  deliv- 
ered without  the  flash-boards,  according  to  your  estimate,  which  is 
without  the  amount  that  could  be  delivered  with  the  flash-boards 
on  the  dam? 

A.  Not  exactly  that. 

Q.  How  inexactly  that? 

A.  My  estimate  is  of  the  amount  of  water  that  could  be 
depended  upon  at  the  Wamesit  dam. 

Q.  With  or  without  flash-boards? 

A.  In  the  condition  of  things  that  existed  during  their  measure- 
ment. 

Q.  Now,  was  the  water  ever  up  to  the  top  of  the  flash-boards 
for  any  considerable  period  during  your  measurement? 

A.  It  was. 

Q.  How  much  of  the  time? 

A.  I cannot  tell  without  examining  my  figures. 

Q.  Was  it  one-quarter,  one-half,  or  one-third? 

A.  It  was  not  one-quarter  of  the  time. 

Q.  Was  it  one-fifth? 

A.  Probably  not  more  than  that. 

Q.  One-fifth  of  the  time,  then.  If  it  had  been  kept  up  to  the 
top  of  the  flash-boards  the  whole  time,  I suppose  there  would  have 
been  a very  appreciably  greater  amount  of  water  more,  would  there 
not? 

A . I cannot  see  how  there  could  have  been  any  more  water. 


Testimony  of  Joseph  P.  Feizell. 


699 


Q.  I want  to  get  at  that.  You  say  you  don’t  see  how  there 
could  be  any  more  water  used  by  the  use  of  the  flash-boards,  do 
you? 

A.  You  asked  me  if  there  could  be  any  more  water. 

Q.  I say  any  more  water  “to  be  used  ”? 

A.  There  might  have  been  more  water  to  be  used  during  the 
day,  and  less  to  be  used  during  the  night. 

Q.  Well,  that  is  the  time  when  it  is  used  generally,  is  it  not? 

A.  I understand  that  it  is  used  during  the  night  a good  deal. 

Q.  Mr.  Frizell,  the  deeds  put  in  here  do  not  allow  the  canal 
takers  to  use  it  more  than  eleven  hours  in  the  twenty-four,  for  six 
days  in  the  week.  Do  you  think  the  flash-boards  would  make  any 
difference  in  the  amount  of  water  they  would  get  to  use  during  that 
time,  provided  they  used  it  during  the  day,  and  not  at  all  during 
the  night? 

A.  I think  it  would. 

Q.  How  much  more  ? That  is  the  very  point  I want  to  get.  I 
mean  with  eight-inch  flash-boards. 

A.  I have  endeavored  to  tell  you  how  much  upon  a certain  sup- 
position. 

Q.  Yes*,  sir,  upon  the  supposition  that  the  pond  was  so  large. 

A.  Now,  if  the  pond  was  larger,  you  can  modify  that  result 
accordingly. 

Q.  Eighty  feet  upon  your  measurement ; and,  if  the  pond  turns 
out  to  be  larger,  it  would  be  increased  according  to  the  increase 
of  the  size  of  the  pond  ? 

A.  Yes,  sir. 

Q.  Now,  did  you  go  over  those  figures  that  I handed  you,  sir? 

A.  I believe  so.  Here  are  several  papers  that  you  handed  me. 

Q.  I will  take  the  table  showing  approximately  the  flow  of  the 
Sudbury  river,  with  a water-shed  of  75J  square  miles,  in  cubic 
felt  per  second  for  twenty-four  hours  per  day,  the  average  being 
taken  by  months.  The  paper  is  marked  “ J.  P.  F.  1.” 

A.  I did  not  go  over  all  these  calculations.  I went  over  one  of 
them  to  examine  the  principle  on  which  the  calculation  proceeds. 

Q.  Did  you  find  that  correct? 

A.  That  is  correct.  Yes,  sir.  ' 

Q.  Then  assume  that  the  rest  are  correct.  Now,  will  you  state 
the  principle  on  which  that  is  made  up? 

A.  This  appears  to  be  a statement  of  the  flow  of  the  Sudbury 
river,  taking  an  average  of  one  month  in  each  year  for  a series  of 
nine  years.  There  are  twelve  results.  The  first  result  embraces 
the  months  of  least  flow,  and  the  second  is  the  second  in  order 
of  scarcity,  and  so,  as  I understand  it,  there  is  another  column 
embracing  a period  of  thirteen  years  upon  the  same. 

Q.  Now  it  is,  taking  the  average  flow,  found  how  ? 

A.  This  is  found  by  the  result  of  observations  at  Lake  Cochit- 
uate,  observations  by  which  the  collectable  percentage  of  rainfall 
is  ascertained  for  different  months  of  the  year. 

Q.  How  ascertained  ? 

A.  I cannot  say  how. 

Q.  Whether  by  taking  a percentage  or  an  absolute  flow  of 
water  ? 


700 


Testimony  of  Joseph  P.  Frizell. 


A.  I understand  that  the  flow  of  water  is  so  as  to  be  measured. 

Q.  It  is  the  rainfall’s  measure? 

A.  The  total  quantity  of  water  falling  in  the  drainage  district 
is  calculated,  and  the  ratio  between  the  one  and  the  other  ascer- 
tained. 

Q.  Let  me  see  if  I understand.  Ascertaining  the  collectable 
water  on  the  Cochituate  water-shed  by  measuring  the  flow  through 
the  conduit,  and  applying  that  amount  as  the  ratio  of  collectable 
water  on  the  Sudbury  river  water-shed,  of  75J  square  miles,  it 
would  give  in  the  months  of  the  least  flow,  those  results  for  a 
series  of  years? 

A.  If  I understand  it,  here  is  the  average  flow  of  each  month 
for  the  whole  nine  years,  and  for  the  whole  thirteen  years.  That 
is  one  result.  The  next  is  the  average  flow  of  the  months  stand- 
ing second  in  the  order  of  scarcity. 

Mr.  Bdtler.  And  the  next  lowest  after  that,  and  then  the  next 
lowest  after  that,  and  so  on.  That  is  to  say,  if  I understand  the 
tables  : in  the  lowest  month  the  average  flow  of  the  Sudbury  would 
be  29.2  for  nine  years,  and  in  thirteen  years  it  would  be  28.7  — 
the  average.  Then  take  the  next  dryest  month  in  eaph  of  those 
nine  years  and  the  average  flow  of  the  Sudbury  would  be  found  to 
be  43.5  for  nine  years,  or  44.5  for  thirteen  years.  Take  the  next 
dryest  month  and  the  average  flow  would  be  53.2  for  nine  years, 
or  52.7  for  thirteen  years.  Taking  the  fourth  dryest  month  it 
would  be  62.9  for  nine  years,  or  63.4  for  thirteen  years.  Taking 
the  fifth  dryest  month  it  would  be  74.1  for  nine  years,  and  in 
thirteen  years  it  would  be  76.8  — average.  In  the  sixth  dryest 
month,  in  the  order  from  the  least,  it  would  be  85  in  nine  years, 
and  86  in  thirteen  years.  For  the  seventh  dryest  month  it  would 
be  95  in  nine  years,  and  99  in  thirteen  years.  For  the  eighth 
dryest  month  it  would  123  in  nine  years,  and  124  in  thirteen  years. 
For  the  ninth  dryest  month  it  would  be  144  in  nine  years,  and  143.3 
in  thirteen  years.  For  the  tenth  dryest  month  it  would  be  184  for 
nine  years  (leaving  out  the  fraction),  and  176  in  thirteen  years. 
For  the  eleventh  dryest  month  it  wonld  be  221.3  for  nine  years, 
and  210  in  thirteen  years  ; and  for  the  twelfth  or  wettest  month  it 
would  be  302  in  nine  years,  on  the  average,  and  290  in  thirteen 
years.  I think  you  will  now  understand  that  table,  Mr.  Francis. 

We  do  not  take  the  d^est  month  in  each  jrear,  but  the  dryest. 
month  for  nine  years,  and  ascertain  what  that  would  be,  and  then 
the  second  d^est  month  in  nine  years,  and  ascertain  what  that 
would  be,  and  then  the  third,  and  so  on. 

Mr.  Shattuck.  You  had  better  put  the  man  on  who  made  the 
tables. 

Commissioner  Russell.  The  paper  does  not  show  upon  what 
basis  it  is  made. 

The  Witness.  I took  the  tables  published  in  the  Cochituate 
water  reports. 

Commissioner  Russell.  You  took  the  dryest  month  of  each 
year,  and  not  the  same  month? 

Mr.  Butler.  It  is  the  dryest  month  in  each  year  for  the  first 
result,  and  the  second  dryest  month  in  each  year  for  the  second. 


Testimony. 


701 


The  proof  is  in  the  tables  which  are  put  in,  and  in  the  computa- 
tion. It  is  what  was  put  in  of  the  flow  of  Lake  Cochituate,  and 
measured  by  the  water  conduit. 

Mr.  Storey.  I don’t  understand  that  there  is  an}'  evidence  of 
that. 

Commissioner  Russell.  I don’t  understand  that  those  tables 
have  been  proved  by  any  competent  evidence. 

Mr.  Child.  We  propose  to  have  the  tables  here.  When  the 
tables  are  presented,  and  the  manner  in  which  this  computation  is 
made  up  is  explained,  we  can  tell.  You  have  put  in  water-gauges 
and  measures  of  the  rainfall  and  all  that. 

Mr.  Shattuck.  That  is  a matter  of  common  scientific  knowl- 
edge. 

Mr.  Child.  This  is  just  as  much  a matter  of  common  scientific 
knowledge  as  the  “ rainfall  on  Lake  Cochituate,”  which  is  on  the 
next  page. 

Commissioner  Russell.  I am  not  aware  of  the  introduction  of 
any  evidence  in  any  case  thus  far  showing  the  flow  of  water  from 
Lake  Cochituate.  It  may  be  in,  but  I don’t  recollect  it. 

Mr.  Butler.  Here  is  a table  of  the  flow  of  water  from  Lake 
Cochituate. 

Commissioner  Russell.  That  table  has  never  been  put  in  to 
my  knowledge. 

Mr.  Butler.  (Handing  volume  to  Commissioner  Russell.) 
Now  we  offer  it  as  part  of  a document  that  has  been  put  in  by  the 
other  side. 

Mr.  Child.  Mr.  Shattuck  had  that  very  book  yesterday. 

Mr.  Butler.  I have  not  objected  to  this  book  being  put  in  evi- 
dence, and  cannot  do  so,  because  this  is  a report  of  the  authorized 
agents  of  the  city  in  regard  to  what  they  have  done  in  regard  to 
water.  That  they  have  put  in,  on  the  opposite  side  to  this  almost 
— the  rain-gauge  — and  they  use  it  continually  without  objection. 
Having  put  in  a portion  of  this  report,  I insist  that  the  whole 
should  go  in  ; and  it  is  as  unjust  as  a thing  could  be  to  have  it 
otherwise.  They  could  not  prove  the  rain-gauges  without  it.  They 
could  not  prove,  for  instance,  the  locks  and  canal  rain-gauge.  The 
man  is  dead  that  kept  it  for  thirty  years.  Here  is  an  official  re- 
port, of  which  they  have  used  a part.  Then,  by  every  principle  of 
practice,  it  is  put  in  as  a declaration  of  our  authorized  agent,  and 
could  not  be  objected  to  if  you  wish  to  object,  and  would  not  be  if 
you  could.  Now  I claim  that  the  rest  of  the  official  report, 
for  the  corresponding  months  and  corresponding  days,  shall 
go  in  in  every  case  and  every  class  of  cases.  The  rain-gauge 
is  in  this  report ; and  the  Cochituate  rain-gauge  has  been  used 
and  commented  upon,  and  I could  not  object  to  it,  and  I did 
not  object  to  it,  because  I could  not ; because  this  is  a re- 
port of  the  Cochituate  Waterworks,  and,  under  every  principle 
of  law  that  I know  of,  we  are  bound  by  it,  whatever  there  may  be 
in  it ; and  they  have  used  it.  Then  I have  a right  to  use  every- 
thing else  said  at  the  same  time,  and  everything  else  said  at  the 
same  time  was  what  was  said  within  the  covers  of  the  same  book. 


702 


Testimony. 


Mr.  Storey.  Mr.  Mills  testified  that  certain  rain-gauges  showed 
so  and  so  ; but  he  did  not  put  in  that  document. 

Mr.  Butler.  Then  if  that  is  to  be  done,  I want  all  that  has 
been  put  in  about  rain-gauges  stricken  out.  The  testimony  of  Mr. 
Mills  was  put  in,  he  referring  to  this  ; and  the  Cochituate  water- 
gauge  a9  shown  here  is  referred  to  by  every  witness.  This 
manoeuvre  is  a little  piece  of  sharpness  that  I have  not  expected, 
and  have  not  seen  until  it  has  got  upon  the  Wamesit  dam. 

Mr.  Shattuck.  I supposed  that  these  water-gauge  measure- 
ments did  not  go  in  strictly  as  evidence.  It  is  like  ascertaining 
how  much  the  tide  rises  and  falls,  which  is  practical  data,  and,  in 
scientific  books,  might  be  referred  to  in  order  to  verify  a fact 
within  common  knowledge  as  to  what  the  rainfall  is.  Whether 
that  rule  would  be  applied  to  this  it  is  not  necessary  now  to  con- 
sider ; but  I suppose  that  has  been  the  theory  on  which  these  rain- 
gauges  have  been  put  in.  At  any  rate,  nobody  has  objected  to 
them,  and  it  went  in  on  that  ground.  Now  it  is  proposed  to  show 
what  the  exact  amount  of  water  flowing  from  one  of  the  reservoirs 
is ; and  when  they  desire  to  prove  that,  it  seems  to  me  that  it  is 
proper  for  them  to  prove  it  by  additional  evidence.  It  looks  very 
much  as  though  these  cases  would  all  go  through  without  a^’bodj^’s 
having  the  benefit  of  any  special  knowledge  which  may  exist  upon 
the  subject. 

Mr.  Storey.  This  book  purports  to  be  “ Reports  of  Cochituate 
Water  Boards  to  the  City  of  Boston.”  Those  boards  are  authorized 
agents  of  the  city.  No  portion  of  their  report  has  been  put  in. 
They  put  in,  in  their  report,  the  report  made  by  a gentleman  coming 
from  Chicago.  They  print  as  an  appendix  the  report  of  J.  P. 
Davis,  City  Engineer,  made  to  them.  It  is  his  preliminary  report 
and  his  final  report.  They  merely  print  them  as  reports  made  to 
them,  in  order  that  the  City  Council  may  have  the  benefit  of  them. 
Those  gentlemen  do  not  seem  to  stand  upon  any  better  foundation 
than  Mr.  Fitzgerald,  who  is  subordinate  to  the  first  named.  So 
that,  on  Mr.  Butler’s  ground  alone,  it  does  not  appear  that  this  re- 
port is  entitled  to  be  admitted.  But  going  beyond  that,  it  is  per- 
fectly competent  to  prove,  by  declarations  of  a party,  facts  against 
himself ; but  that  does  not  make  it  competent  for  him  to  put  in  his 
own  declaration  in  his  own  favor.  If  the  City  of  Boston 

were  an  individual,  and  has  made  as  an  individual  every 
statement  herein  contained,  it  would  be  competent  for  us 
to  put  in  the  statements  as  evidence  to  support  our  case.  But 
it  would  not  be  competent  for  the  city  to  put  in  statements 
made  by  itself  as  evidence  in  its  own  favor.  The  only  limi- 
tation, as  I understand,  to  that  doctrine,  is  this : that  where 
we  undertake  to  put  in  declarations  which  form  part  of  a conver- 
sation, we  must  put  in  the  whole  conversation  ; where  we  put  in 
one  letter  which  is  part  of  a correspondence,  and  the  rest  is 
necessary  to  explain  it,  the  rest  of  the  correspondence  must  be  ad- 
mitted. This  does  not  come  under  either  of  those  exceptions.  If 
it  were  put  in,  as  a declaration  by  the  city,  it  is  competent ; but 
that  does  not  make  competent  every  other  declaration  which  the 
city  chooses  to  make  on  every  other  point  connected  with  this 


Testimony. 


703 


matter.  We  put  in  the  rain-guage.  That  does  not  make  it  com- 
petent for  them  to  put  in  a fact  entirely  independent  of  the  rain- 
guage. 

Mr.  Child.  This  is  the  result  of  the  rain-gauge. 

Mr.  Butler.  I desire  to  see  how  this  case  stands,  and  then 
leave  the  matter  to  the  commissioners.  The  city  is  carrying  on  a 
great  public  work,  for  public  use,  under  power  of  the  act  of  the 
legislature.  The  legislature  appointed  for  the  city,  and  the  city 
for  themselves  appointed  an  agency,  to  wit , the  Cochituate  Water 
Board,  to  do  that  work.  That  agent  reported  to  the  city  his  acts 
and  doings,  and  the  results  of  his  acts  and  doings.  He  reported 
how  much  water  had  been  supplied  to  the  city,  and,  as  a part  of 
that  report,  how  much  had  been  collected  and  how  much  had  been 
supplied,  and,  as  a part  of  that  report,  he  states  the  rainfall,  and 
then  says:  “ We  have  saved  so  much  of  that”  — the  rainfall  to 
be  ascertained  by  the  rain-gauge.  The  agent  puts  it  in  the  form 
of  a table,  because  that  is  the  most  convenient  form  of  stating  it 
— one  table  on  one  page  and  the  other  on  the  other,  and  the  two 
showing  correlatively. 

Now,  these  gentlemen  on  the  other  side  put  in  a portion  of  that 
report.  That  has  been  done,  or  else  I have  been  asleep  for  the  last 
three  weeks,  pretty  much  all  of  the  time.  That  has  been  done,  and 
referred  to  by  every  witness  ; referred  to  by  Mr.  Frizell  in  these 
cases,  stating  how  it  appeared  from  that  rain-gauge,  that  there  was 
a larger  amount  in  the  Sudbury  than  at  Lowell  (that  being  the 
nearest  proved),  without  objection  on  my  part,  because  I could  not 
object.  It  is  the  declaration  of  the  agent  of  my  client. 

Now,  all  the  rule,  if  I understand  the  rule  of  law,  is  this  : When- 
ever the  declaration,  or  any  portion  of  the  declaration  of  a party,  or 
of  his  agent,  is  put  in  by  his  opponent,  everything  that  he  said  at  the 
same  time,  in  pari  materium , which  tends  to  illustrate,  explain  or 
control  that  matter,  is  to  be  put  in.  You  cannot  pick  out  what 
you  want  out  of  a man’s  declaration  and  put  that  in,  and  then  say 
that  the  rest  of  what  he  said,  which  was  upon  the  same  subject- 
matter,  shall  not  go  in.  Very  well ; that,  I think,  is  the  rule  of 
law. 

Mr.  Storey.  Does  that  statement  of  the  amount  of  water  of 
Lake  Cochituate  tend  to  control  the  rain-gauge? 

Mr.  Butler.  It  is  a measure  of  the  rain-gauge.  It  corrects 
the  inequalities  of  the  rain-gauge.  It  shows  that  the  rain-gauge  is 
kept  inadequately  and  does  not  show  the  flow  of  water.  It  does 
qualify  it.  They  put  in  the  rain-gauge  to  show  that,  up  there  by 
the  Sudbury  river,  there  is  an  immense  fall  of  water,  and  put  in 
our  declaration  of  the  rain-gauge  as  evidence  of  that  immense  fall 
of  water.  At  the  same  time  that  we  stated  that  the  rain-gauge 
showed  that,  we,  in  the  same  report,  on  the  next  leaf,  stated  that 
that  was  corrected  by  the  actually  measured  flow,  and,  therefore, 
that  it  was  a mistake  to  say  that  there  was  so  much.  Very  well ; 
that  is  the  condition  of  things  exactly ; and  I supposed,  with  the 
liberality  which  I have  attempted  to  exercise  all  the  while,  dealing 
with  this  matter,  not  with  catches  and  quirks  — 


704 


Testimony. 


Mr.  Shattuck.  [Interrupting.]  You  fir8t  objected  to  the 
report. 

Mr.  Butler.  Pardon  me,  now.  With  the  liberal  it}'  with  which 
I have  gone  on  (and  I call  to  witness  the  commissioners  as  to 
whether  I have  not  attempted  to  be  as  liberal  as  possible),  I have 
hardly  made  an  objection.  Now,  Mr.  Shattuck  says  that  I ob- 
jected to  the  report.  Pardon  me ; I did  not.  I objected  to  a 
history  made  by  a gentleman  who  is  not  an  agent ; and  if  Mr. 
Shattuck  had  been  well  up  in  his  case  as  published,  he  would  have 
taken  another  report  of  another  year,  and  found  exactly  what  he 
undertook  to  give,  and  got  it  in,  and  I should  not  have  objected  ; 
but  he  would  also  have  found  an  explanation  of  it  in  that  report. 
I only  objected  to  the  history  going  in,  and  to  the  taking  out  of 
one  statement  from  that  historjr. 

Well,  now,  then,  these  gentlemen,  having  got  the  advantage  of 
a portion  of  our  statement,  objected  to  our  correcting  that  state- 
ment by  what  we  said  at  the  same  time.  It  rather  smacks  of  the 
Old  Bailey ; but  I shall  know  how  to  deal  with  them  if  ever  I try 
this  case  again.  They  will  get  it  b}r  the  hardest  in  the  future. 
We  can  get  on.  I think  I understand  the  technical  rules  of  law 
reasonably  as  well  as  an}r  one  of  the  gentlemen  on  the  other  side. 
I do  not  attempt  to  multiply  myself  by  nine.  But  taking  any  one 
of  them,  I would  say  that  thirty-six  years  of  practice  has  given  me 
some  little  experience  ; and  I have  been  quite  as  often  in  courts  as 
any  one  of  them. 

Now  they  object  to  this  being  admitted  ; we  are  seeking  after 
the  truth.  Here  is  a great  public  work.  You  cannot  expect  that 
we  have  wrongly  measured  that  water,  which  is  a vital  matter  to 
us,  in  order  to  affect  Snyder’s  mill  with  its  accumulation  of  mort- 
gages. Nobody  supposes  that  for  a moment.  But  it  is  the  results 
of  a great  public  work,  made  in  the  course  of  public  employment. 
I distinguish  it,  then,  in  toto , from  putting  in  the  effect  of  the  fall 
of  the  tide,  or  anything  of  that  sort.  Those  are  matters  that  we 
know.  The  motions  of  the  planets  are  regulated  by  unalterable 
laws,  and  therefore  the  almanac  always  proves  itself;  and  the 
time  when  the  tide  rose  and  fell  on  a certain  day  can  be  proved 
by  the  almanac.  But  how  it  rose  on  a given  day,  or  at  a given 
place,  must  be  proved  by  somebody’s  measurement,  if  it  becomes 
important.  How  much  rain  fell  in  a given  place  on  a given  day 
must  be  proved  by  evidence  ; so  I think  my  brother  Shattuck’s  idea 
that  we  went  in  here  on  the  ground  that  this  was  a portion  of  the 
action  of  nature  is  entirely  illusory.  We  agree  that  it  is  a portion  of 
the  action  of  nature  ; but  the  thing  that  we  want  to  get  in  is,  “ How 
much  did  nature  act  at  that  time?  How  much  rain  dropped  down 
on  that  day?”  There  might  not  any  have  dropped  down  at  all,  or 
there  might  have  dropped  down  twenty-six  inches,  which,  1 believe, 
is  the  largest  known  amount  for  an}'  one  day.  It  is  not  a matter 
of  common  learning;  it  is  very  uncommon  learning.  The  question 
is  for  you.  I thought  you  would  like  to  know  exactly  this  fact 
before  you  got  through  with  the  cases,  and  I have  now  attempted 
to  prove  it.  If  you  don’t  want  to  know  it  you  will  say  so,  and  there 
is  the  end  of  it.  The  cause  of  right  here,  I think,  will  be  pro- 
moted by  knowing  it. 


Testimony. 


705 


I have  been  waiting,  before  I produced  any  testimony,  to  see 
exactly  what  theory  they  would  get  up.  I foresaw  the  difficulty 
that  when  Mr.  Talbot’s  case  was  to  be  tried  they  would  have  to 
prove  a great  deal  of  water  running  over  his  dam  ; and  when  the 
Wamesit  case  was  tried  they  would  have  to  prove  that  there  was  a 
very  little  ;•  and  I did  not  dare  to  put  in  any  evidence  until  I got 
in  those  two  classes  of  cases  ; and  I am  waiting  now,  having  got 
the  theory  and  having  got  down  to  the  last  dam.  I propose  to 
give  some  little  measurements,  and  prick  some  bubbles  that  have 
been  testified  to  here,  and  I shall  let  the  wind  out  of  them,  I 
think. 

Commissioner  Russell.  The  commissioners  all  agree  that  it  is 
important  that  they  should  have  the  information  which  these  tables, 
if  correctly  kept  and  properly  proved,  would  give  them.  But  we 
are  of  opinion  that  the  mode  of  proof  should  be  the  ordinary  mode 
of  proof  by  calling  witnesses  to  establish  measurements,  and  not 
by  the  introduction  of  a report  of  one  agent  of  the  City  of  Boston 
to  a department  of  the  City  Government  of  Boston.  We  should 
not,  of  course,  hold  that  the  city  was  bound  to  prove  the  accuracy 
of  each  measurement  and  of  each  observation.  But  I suppose 
that  the  proof  that  the  city  has  measured  the  Cochituate  water  by 
some  process  of  measurement,  and  that  that  is  a proper  and  scien- 
tific mode  of  measurement,  and  that  the  record  has  been  kept  of 
that  measurement,  and  that  the  results  are  as  shown  by  those 
tables,  would  be  admissible  proof. 

Mr.  Butler.  If  we  can  give  it  to  you  we  will.  Do  you  require 
us,  gentlemen,  to  do  that  now? 

Commissioner  Russell.  If  the  report  had  been  introduced,  or 
if  the  parts  of  the  report  connected  with  these  observations  and 
measurements  had  been  introduced  as  part  of  the  direct  testimony 
on  the  part  of  the  petitioners,  I should  be  inclined  to  hold  that 
the  other  parts  of  the  report  bearing  upon  the  same  matter  were 
also  to  be  admitted  as  part  of  the  city’s  case.  But  I don’t  under- 
stand that  the  petitioners  have  introduced  any  part  of  the  report 
which  the  city  undertakes  to  offer  for  another  purpose.  They 
have  proved  by  scientific  witnesses  the  amount  of  rainfall  upon 
various  areas  of  water  drainage.  Those  experts  have  referred 
to  rain-guages  kept  in  various  localities,  and  without  objection 
the}7  have  treated  those  rain-gauge  records  as  correct,  and  as 
facts  open  for  their  knowledge.  Whether  they  would  have  been 
so  held  or  not  if  objection  had  been  made,  is,  of  course,  another 
matter. 

Mr.  Butler.  This  very  book,  the  Report  of  the  Cochituate 
Water  Board  for  1875  and  ’76,  was  put  in,  or  part  of  it;  and  the 
amount  of  water  taken  from  Sudbury  river  is  stated  here.  This 
contains  substantially  the  same  table.  Otherwise  you  will  find 
you  have  not  got  that  testimony  in  anywhere. 

Commissioner  Russell.  We  do  not  hold  that  you  are  bound  to 
call  the  parties  who  took  these  measurements  and  recorded  these 
observations,  but  only  to  show  that  the  city  has  adopted  a method 
of  measurement  there  which  can  be  shown  to  be  a proper  method 
of  measurement,  and  that  they  have  kept  a record.  I have  no 
doubt  that  the  proof  is  within  the  power  of  the  city. 


706 


Testimony, 


Mr.  Storey.  “ I have  not  in  the  opening,  General  Butler,” 
(says  Mr.  Hodges,  in  his  argument),  “said  anything  about  the 
taking  of  the  water. 

“ Mr.  Butler.  In  this  case,  it  will  be  agreed  that  the  Water 
Commissioners  took  the  water  from  June,  1872,  until  September, 
1872. 

“ Mr.  Hodges.  For  seventy-five  days.  . . . 

“ Commissioner  Russell.  Did  the  taking  of  the  water  continue 
after  the  filing  of  the  petition  ? 

“ Mr.  Butler.  Yes,  sir.  I will  take  it  exactly  from  City  Doc- 
ument No.  103, — the  report  of  the  Cochituate  Water  Board  for 
the  year  ending  April  30th,  1876.” 

Then  follows  an  extract  from  page  16  of  that  report. 

Commissioner  Russell.  We  do  not  understand  that  the  book 
was  put  in,  as  a report,  by  the  city. 

Mr.  Butler.  We  shall  get  at  it  somehow,  I guess  ; it  is  not  a 
matter  of  a great  deal  of  consequence. 

[Mr.  Storey  produces  copy  of  deed  which  was  omitted  when  the 
other  deed  was  put  in.] 

DEED  OF  ALFRED  H.  CHASE  TO  HOCUM  HOSFORD. 

Know  all  men  by  these  Presents , That  I,  Alfred  H.  'Chase,  of  Lowell, 
in  the  County  of  Middlesex  and  Commonwealth  of  Massachusetts,  in 
consideration  of  thirteen  thousand  dollars,  to  me  paid  by  Hocum  Hos- 
ford,  of  said  Lowell,  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  give,  grant,  bargain,  sell  and  convey  unto  the  said  Hosford,  his 
heirs  and  assigns,  one  undivided  half  of  a certain  parcel  of  land,  situate 
in  said  Lowell,  on  Concord  river,  and  thus  described,  viz. : beginning 
at  the  westerly  corner  of  the  premises  at  a stone  marked  on  the  east- 
erly face  of  the  easterly  bank-wall  of  Whipple’s  canal,  thence  S.  30£  de- 
grees, E.  thirty-two  and  40-100  feet;  thence  at  an  angle  of  186  degrees 
and  twenty-five  minutes,  still  more  southerly  twenty  feet ; thence  still 
southerly  at  an  angle  of  191  deg.  9 min.,  ten  feet;  thence  still  southerly 
at  an  angle  of  181  deg.,  35  min.,  ten  feet;  thence  still  southerly  at  an 
angle  of  172  deg.  40  min.,  ten  feet;  thence  still  southerly  at  an  angle  of 
170  deg.  10  min.,  ten  feet ; thence  still  southerly  at  an  angle  of  141 
deg.  10  min.,  eleven  and  5-100  feet;  thence  still  more  southerly  than 
said  last  line  at  an  angle  of  217  deg.  40  min.,  nine  and  1-10  feet; 
thence  westerly  at  an  angle  of  270  deg.,  seven  feet;  thence  still  south- 
erly at  an  angle  of  89  deg.  44  min.,  ninety  and  85-100  feet  to  a stake 
at  said  easterly  face  of  said  bank-wall ; all  said  distances  from  the 
point  begun  at  to  said  stake  being  on  the  easterly  or  outside  face  of 
said  bank-wall ; thence  from  said  stake  easterly  at  a right  angle  ninety- 
five  feet  to  a marked  stone  bound  at  Concord  river ; thence  northerly 
on  the  westerly  bank  of  Concord  river  to  an  iron  bolt  in  the  ground  in 
the  river,  at  a point  which  will  be  met  by  extending  northerly  to  the 
river  in  the  same  direction  the  line  now  runs  as  to  course,  the  easterly 
boundary  line  of  a lot  of  land  conveyed  by  Oliver  M.  Whipple  to 
Joshua  Mather,  by  deed  dated  May  18,  1857 ; thence  southerly  fourteen 
feet  to  a stake  at  the  northeasterly  corner  of  said  Mather  lot ; thence 
southerly  by  said  Mather  lot  eighty-seven  feet  to  a stake  at  the  south- 
easterly corner  of  said  Mather  lot;  thence  westerly  at  an  angle  of  218 
deg.  53  min.,  fourteen  and  28-100  feet,  to  the  point  of  beginning.  Also 
one  undivided  half  of  all  the  rights,  water-rights,  privileges  and  ease- 
ments to  me  conveyed  by  Oliver  M.  Whipple  by  deed  dated  the  twen- 


Testimony. 


707 


tieth  day  of  February,  A.  D.  1863,  and  recorded  in  Middlesex  North 
District  Registry  of  Deeds,  Feb.  21,  1863,  book  23,  page  184,  subject 
to  the  provisions,  reservations  and  conditions  in  said  deed  contained, 
pertaining  to  said  one  undivided  half.  Also  one  undivided  half  of 
all  the  fixtures  situate  in  or  connected  with  the  mill  now  standing  on 
said  above-described  premises.  Also  one  undivided  half  of  a certain 
tract  of  land  situate  in  said  Lowell  and  thus  bounded  and  described : 
beginning  at  Grove  street  at  a point  on  the  northerly  side  of  said  street, 
which  is  one  hundred  and  81-100  feet  distant  northeasterly  from  the 
intersection  of  the  northerly  line  of  said  Grove  street  with  the  easterly 
line  of  Lawrence  street,  at  which  point  a stone  post  has  been  or  is  to  be 
erected,  thence  running  N.  584  deg.  W.,  in  a line  parallel  with  the 
northeasterly  bounding  line  of  said  Lawrence  street  about  two  hundred 
and  twelve  and  75-100  feet,  to  a corner;  thence  still  more  northerly  at 
an  angle  with  the  last  named  line  of  145  deg.  2 min.,  one  hundred  and 
two  and  5-100  feet  to  land  now  or  formerly  of  Ephraim  B.  Patch; 
thence  northeasterly  at  an  angle  with  the  last  named  line  of  101  deg. 
38  min.,  along  said  Patch  land  about  one  hundred  and  twenty  and 
32-100  feet;  thence  northwesterly  along  said  Patch  land  to  a stone  bound 
at  said  Patch  land;  thence  N.  754  aeg.,  E.  along  said  Patch’s  land 
about  eighteen  and  25-100  feet  to  a stone  bound;  thence  S.  654  deg. 
E.,  by  said  Patch  land  about  one  hundred  and  fifty-six  and  22*100  feet 
to  a stone  bound;  thence  S.  334  deg.  E.,  along  said  Patch’s  land 
about  seventy-three  feet  to  a stone  bound  at  said  Grove  street ; thence 
southwesterly  along  said  Grove  street  one  hundred  and  ninety-five  and 
48-100  feet  to  the  point  of  beginning.  Being  one  undivided  half  of  the 
premises  to  me  conveyed  by  Ephraim  B.  Patch  by  two  deeds,  one  dated 
September  14th,  1863,  and  recorded  in  Middlesex  North  District  Registry 
of  Deeds,  September  22,  1863,  book  35,  page  552,  and  the  other  dated 
November  6,  1863,  and  recorded  in  said  Registry.  The  premises  to 
me  conveyed  by  Oliver  M.  Whipple  by  the  deed  first  hereinbefore 
referred  to,  dated  February  20th,  1863,  are  subject  to  a mortgage 
to  the  Lowell  Five  Cent  Savings  Bank.  To  have  and  to  hold  the 
above-granted  premises  with  all  the  privileges  and  appurtenances 
thereto  belonging  to  the  said  Hocum  Hosford,  his  heirs  and  as- 
signs, to  his  ana  their  use  and  behoof  forever.  And  I,  the  said 
Chase,  for  myself  and  my  heirs,  executors  and  administrators,  do 
covenant  with  the  said  Hosford,  his  heirs  and  assigns,  that  I am 
lawfully  seized  in  fee-simple  of  the  afore-granted  premises  ; that  they 
are  free  from  all  incumbrances  except  said  mortgage  to  said  Lowell 
Five  Cent  Savings  Bank,  and  the  provisions,  reservations  and  condi- 
tions above  referred  to  ; that  I have  good  right  to  sell  and  convey  the 
same  to  the  said  Hosford,  his  heirs  and  assigns,  forever  as  aforesaid ; 
and  that  I will,  and  my  heirs,  executors  and  administrators  shall,  war- 
rant and  defend  the  same  to  the  said  Hosford,  his  heirs  and  assigns, 
forever  against  the  lawful  claims  and  demands  of  all  persons  except 
as  aforesaid.  In  witness  whereof,  I,  Alfred  H.  Chase,  together  with 
Helen  F.  Chase,  wife  of  said  Alfred  H.  Chase,  who  hereby  releases  all 
claim  to  dower  and  homestead  exemption  in  the  granted  premises,  have 
hereunto  set  our  hands  and  seals  this  first  day  of  December,  in  the  year 
of  our  Lord  eighteen  hundred  and  sixty-three.  Alfred  H.  Chase  (seal). 
Helen  F.  Chase  (seal).  Signed,  sealed  and  delivered  in  presence  of 
(erasures  having  first  been  made)  George  F.  Richardson  to  A.  H.  C., 
Daniel  S.  Richardson  to  A.  H.  Chase,  Harry  B.  Chase  to  H.  F.  C. 

Middlesex,  ss.,  December  28th,  1863.  Then  personally  appeared  the 
above-named  Alfred  H.  Chase,  and  acknowledged  the  above  instru- 
ment to  be  his  free  act  and  deed.  Before  me,  George  F.  Richardson, 
Justice  of  the  Peace.  (Twenty  dollar  U.  S.  revenue  stamp  cancelled.) 

Middlesex,  ss.,  North  District.  Recorded  Dec.  29,  1863.  A.  B. 
Wright,  Register. 


708 


Testimony  of  Joseph  Tilton. 


A true  copy  of  deed  recorded  with  Middlesex  North  District  Registry 
of  Deeds  in  book  36,  page  364.  Attest : 

J.  P.  THOMPSON, 

Register. 


Joseph  Tilton,  sworn, 

Q.  (By  Mr.  Butler.)  What  is  your  age,  sir? 

A,  About  fifty-nine. 

Q.  How  long  have  you  been  in  charge  of  the  repairs  of  the 
dam,  and  of  keeping  the  head  of  water  through  the  gates  at  Wame- 
sit  dam,  including  the  time  when  Mr.  Whipple  owned  it,  and 
every  other  owner  since? 

A,  I should  guess  about  twenty  years  or  more. 

Q.  When  you  first  came  there  you  were  acting  under  Mr. 
Whipple? 

A.  Yes,  sir. 

Q.  How  many  mills  did  Mr.  Whipple  own  at  the  time  on  these 
premises,  — separate  mills  ? 

A.  Seven,  I think  ; small  mills,  some  of  them  were. 

Q.  The  power  was  taken  from  the  canal,  which  is  a part  of  the 
present  canal,  with  the  exception  of  the  power  for  the  saw-mill? 

A.  Yes,  sir. 

Q.  Did  Mr.  Whipple  have  any  steam-power  ? 

A.  No,  sir  ; not  to  carry  any  of  those  mills  that  I speak  of. 

Q.  They  were  powder-mills,  were  they  not? 

A.  Yes,  sir ; but  he  had  one  dry-house-  that  he  run  by  steam. 
That  was  not  connected  with  the  water-power. 

Q.  Mr.  Whipple  made  the  present  Wamesit  canal,  did  he  not? 

A.  Yes,  sir. 

Q.  And  then  sold  a portion  of  this  land  and  the  power  to  vari- 
ous people? 

A.  Yes,  sir ; he  did. 

Q.  Do  you  know  whether  he  went  into  any  measurements  and 
calculations  at  that  time  to  ascertain  how  much  water-power  there 
was? 

A.  I don’t  recollect  that  he  did. 

Q.  Now,  sir,  after  the  canal  passed  into  the  hands  of  the  Wame- 
sit Power  Company,  was  it  deepened,  enlarged,  and  widened? 

A.  It  was. 

Q.  How  far  down,  — as  far  as  the  Wamesit  mills  go  ? 

A.  Yes,  sir. 

Q.  Was  the  little  canal  of  Mr.  Wood  and  the  Bleachery  inter- 
fered with? 

A.  That  was  made  larger. 

Q.  Who  had  charge  of  the  water  and  the  repairs  of  the  dam, 
and  seeing  that  the  water  was  properly  delivered  down  to  the  mill 
as  far  as  he  could,  on  the  part  of  the  Wamesit  Power  Company, 
and  on  behalf  of  Mr.  Wood?  Was  it  not  yourself? 

A.  It  was. 


Testimony  of  Joseph  Tilton. 


709 


Q.  Have  you  kept  any  measurement  of  the  height  of  the  water 
on  that  dam? 

A.  I have  kept  it  back  about  two  years. 

Q.  You  never  kept  it  before? 

A.  No,  sir. 

Q.  Who  has  those  books  of  measurement, — do  you  know? 

A.  I guess  they  are  here  in  the  room.  I think  Mr.  McDaniels 
has  them. 

Q.  The  flash-boards  are  kept  on  all  the  time  permanently,  are 
they  not? 

A.  Yes,  sir. 

Q.  And  gravelled  up  to,  so  as  to  make  really  a part  of  the  dam  ? 

A.  Yes,  sir. 

Q.  And  your  measurements  were  over  the  flash-boards  ? 

A.  Yes,  sir. 

Q.  Is  this  your  book  ? 

A.  Those  are  my  figures. 

Q.  When  did  this  book  commence,  — April,  1874? 

A . Yes,  sir. 

Q.  How  many  times  a day  did  you  take  the  water? 

A.  Once. 

Q.  Once  a day  to  begin  with.  Have  you  taken  it  oftener  since  ? 

A.  No,  sir. 

Q.  What  time  in  the  day  did  }rou  take  it? 

A.  Betwixt  the  hours  of  eight  and  nine.  I calculated  to  take 
it  about  half-past  eight.  Sometimes  I didn’t  take  it  until  nine  in 
the  morning. 

Q.  At  the  time  of  taking,  how  does  the  water  compare  with 
what  it  is  usually  during  the  day?  Is  it  higher  or  lower? 

A.  It  is  lower  than  it  is  through  the  day  after  that,  some. 

Q. ' How  do  you  account  for  that,  Mr.  Tilton  ? Whether  or  not 
the  water  has  got  down  from  Mr.  Talbot’s  in  the  morning  ? 

A.  Well,  I think  the  water  hasn’t  got  down  at  that  time.  The 
water  draws  down,  and  the  more  the  demand  is,  the  more  the 
supply. 

Q.  The  water  draws  down  ? 

A.  Yes,  sir. 

Q.  The  road  on  the  east  side  runs  right  beside  the  river  up  to 
Billerica  mills,  does  it  not? 

A.  It  runs  some  little  way  from  the  river,  but  it  runs  right  along 
pretty  nearly  parallel. 

Q.  Is  it  about  as  far  up  the  river  as  by  the  road  up  to  the 
Billerica  dam,  or  farther? 

A.  I should  rather  think  it  was  farther  round  the  road. 

Q.  How  much? 

A.  I can’t  tell ; I never  measured,  and  never  heard  anybody 
tell  how  far  it  is  round  the  river  in  that  way.  I don’t  know. 

Q.  These  figures  are  in  inches,  are  they  not? 

A.  Yes,  sir. 

Mr.  Shattuck.  I would  like  to  look  at  the  book  before  you  put 
it  in. 

Mr.  Butler.  Certainly.  If  I do  not  explode  the  idea  that  the 


710 


Testimony  of  Joseph  Tilton. 


water  does  not  run  over  the  flash-boards  more  than  three  months 
in  the  year,  I am  mistaken. 

Q.  (By  Mr.  Shattuck.)  When  was  this  book  kept? 

A.  It  was  copied,  from  time  to  time,  about  once  a month,  from 
the  other  book. 

Q.  You  mean  to  say  that  you  began  in  1874? 

A.  That  was  copied  off  of  my  book  when  it  was  taken. 

Q.  Who  made  the  copy  ? 

A.  The  clerk. 

Q.  You  don’t  know  anything  about  that  book? 

A.  No,  sir ; I would  carry  in  my  book,  and  he  would  take  it 
down  from  time  to  time. 

Mr.  Shattuck.  If  it  is  an  accurate  thing,  I do  not  want  to 
make  any  unreasonable  objection. 

Commissioner  Russell.  I understood  the  witness  to  state  that 
those  were  his  figures. 

Witness.  Those  are  my  amounts.  I didn’t  mean  to  say  they 
were  my  figures.  I had  nothing  to  do  with  that  book. 

Q.  (By  Mr.  Shattuck.)  Wasn’t  that  all  made  up  in  a very 
short  time  ? 

A.  No,  sir.  It  was  copied  in  from  my  book  from  time  to  time. 
I never  handled  that  book.  He  [the  clerk]  used  to  take  my 
figures  off. 

Q.  (By  Mr.  Storey.)  Have  you  got  the  original  book? 

A.  No,  sir. 

Q.  Where  is  it? 

A.  In  Lowell.  I didn’t  know  what  1 was  going  to  do  with  the 
book. 

Mr.  Shattuck.  We  would  like  to  see  the  original,  but  we  will 
not  delay  the  hearing.  You  may  go  on  with  this. 

[Mr.  Butler  put  in  the  following  table : — ] 


Testimony  of  Joseph  Tilton, 


711 


Table  of  measurements  of  the  depth  of  water  running  over  the  Wamesit  dam 
at  Lowell,  taken  between  eight  and  nine  o'clock  each  morning  when  any 
water  ran  over  the  dam. 

1874. 


Jan. 

Feb. 

Mar. 

Apr. 

May. 

June. 

July. 

Aug. 

Sept. 

Oct. 

Nov. 

Dec. 

1 

5* 

12* 

10 

3* 

1 

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9 

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1 

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S. 

9 

3 

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5 

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4th  of 
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Sunday. 


712 


Testimony  of  Joseph  Tilton, 


1875. 


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31 


Testimony  of  Joseph  Tilton, 


713 


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714 


Testimony  of  Joseph  Tilton. 


Q.  (By  Mr.  Butler.)  When  the  water  runs  over  the  flash- 
boards  in  the  morning,  when  you  measure,  in  ordinary  dajTs,  how 
does  it,  as  a rule,  act  during  the  day?  Does  it  continue  to  run 
over  during  that  day? 

A.  Well,  sometimes  it  draws  down  so  that  it  don’t  run  over 
at  all. 

Q.  Suppose  you  find  the  water  running  over  two  inches  in  the 
morning,  does  it  draw  down  during  the  day? 

A.  Yes,  sir ; I have  seen  it  draw  down  so  that  it  didn’t  run 
over  at  all,  when  it  run  over  two  inches  in  the  morning. 

Q.  It  does  sometimes  draw  down  in  that  way? 

A.  Yes. 

Q.  Would  you  put  that  as  the  limit,  or  how  high  is  it?  If  it 
ran  over  the  flash-boards  three  inches  in  the  morning,  would  it  be 
likely  to  draw  down  during  the  day,  or  does  it,  in  practice  ? 

A.  I never  measured  it  only  once  a day.  I should  hardly  think 
where  it  ran  over  three  inches  but  what  it  would  run  over  drizzling 
all  day. 

Cross-examination . 

Q.  (By  Mr.  Richardson.)  You  sa}'  that  you  made  these  meas- 
urements between  eight  and  nine  o’clock  in  the  morning  ? 

A.  Yes,  sir. 

Q.  Is  the  water  lower  at  that  time  than  it  is  afterwards  in  the 
day? 

A.  I don’t  understand  your  question. 

Q.  Is  the  water  lower  at  that  time  than  it  is  afterwards  during 
the  day? 

A.  No,  sir. 

Q.  Didn’t  you  say  that  it  was? 

A.  No,  sir ; anybody  would  know  it  would  draw  down  after 
that.  If  I said  that,  I didn’t  mean  to  say  so,  because  anybody 
would  know  it  was  a mistake. 

Q.  Didn’t  you  state  that  the  water  began  to  come  about  nine 
o’clock  from  Billerica? 

A.  I guess  I didn’t  make  any  mistake  there.  No,  sir ; I didn’t 
make  any  such  assertion  as  that. 

Q.  You  put  it  that  you  measured  at  half-past  eight,  and  then 
the  water  continued  to  draw  down  during  the  day,  until  it  was 
more  or  less  increased  when  the  Billerica  dam  water  arrived. 

A.  Between  half-past  eight  and  nine  I took  the  measures. 

Q.  Understand  my  question.  You  took  it  between  half-past 
eight  and  nine,  and  from  that  time,  during  the  rest  of  the  day, 
while  the  mills  were  running,  until  you  got  reinforced  by  the 
Billerica  dam  water,  it  continued  to  fall,  — is  that  so? 

A.  That  is  so. 

Q.  When  you  took  these  measurements  in  the  morning,  at  half- 
past eight,  when  did  you  again  see  the  water  during  the  day  at  the 
dam? 

A.  I didn’t  go  up  at  all  during  the  day, — not  to  the  dam. 

Q.  Have  you  during  that  period  any  other  measurements  of  the 
water  during  the  day  ? 


Testimony  of  Joseph  Tilton. 


715 


A.  The  way  we  use  to  tell  about  the  water  dropping  — 

Q.  Answer  my  question.  Have  you  during  that  period  any 
other  measurements  of  the  water,  at  any  other  time  of  the  day,  or 
not? 

A.  No,  sir;  that  is  all. 

Q.  While  you  were  taking  it  at  any  of  those  times  when  you 
took  those  measurements,  did  you  see  that  the  water  at  Wamesit 
dam  was  reinforced  by  water  which  came  down  from  the  Billerica 
dam? 

A.  I think  I have  just  said  I didn’t  take  any  measures  only 
just  once  a day  at  the  dam  ; that  is,  betwixt  8 and  9. 

Q.  I know  ; but  when  you  took  it,  had  the  Billerica  dam  water 
got  down  so  as  to  help  make  up  the  water  you  were  taking?  You 
say  you  took  it  at  that  hour,  and  when  the  Billerica  water  came 
down  it  rose.  Had  the  Billerica  water  got  down  when  you  took 
your  measurements  ? 

A.  I think  I have  stated  here  that  I didn’t  think  that  the  Bil- 
lerica water^got  down  much  before  11  or  12  o’clock  to  do  us  any 
good  at  the  mills.  I so  stated,  not  this  time,  but  previous  to  this, 
and  I have  not  altered  my  mind  on  that  all. 

Q.  In  your  examination  you  said  that  that  water  didn’t  get 
down  till  about  noon  ? 

A.  Eleven  or  twelve  o’clock,  I think,  I said. 

Q.  Until  about  noon,  or  about  12  o’clock? 

A.  Yes,  sir. 

Q.  Then  the  flow  of  water,  as  you  know  it  in  the  canal,  would 
continue  to  draw  down  after  these  measurements  until  about 
noon? 

A.  Yes,  sir  ; it  has  always  drawn  down  until  about  noon. 

Q.  Then  have  you  any  means  of  telling  how  much,  when  the 
Billerica  reinforcement  water  got  there,  it  would  rise  ? 

A.  I never  took  any  measures  only  once  a day. 

Q.  Can  you  give  any  approximation  of  the  rise  that  that  water 
would  make  at  the  dam  ? 

A.  I never  took  only  just  one  measure  a day,  and  that  was  be- 
twixt 8 and  9 o’clock  in  the  morning,  only  just  what  I have  tested 
it  down  at  our  mills. 

Q.  You  have  no  means  of  judging  of  the  condition  of  the  water 
at  the  dam  at  any  other  time  of  the  day.  You  only  know  that  it 
would  begin  to  draw  down  as  soon  as  you  used  it  ? 

A.  We  have  a flow  of  water  down  the  canal  down  to  the 
mills. 

Q.  Will  you  tell  us  how  the  water  stood  at  the  dam  on  the 
morning  of  the  6th  day  of  September  last,  the  day  the  commission- 
ers were  there  ? 

A.  I don’t  see  any  figures  here  at  all  on  the  6th  day  of  Sep- 
tember. 

Q.  Did  you  go  there  that  morning? 

A.  I don’t  see  any  amount  there  at  all. 

Q.  Did  you  go  there  that  morning? 

A.  I don’t  think  I did.  I don’t  think  I made  any  figures. 


716 


Testimony  of  Joseph  Tilton. 


Q.  Didn’t  you  say  that  the  measurements  were  taken  every 
day? 

A.  When  the  water  would  run  over  the  dam. 

Q.  When  it  was  below  the  dam  you  took  no  measurements  on 
any  day  for  the  two  years  ? 

A.  No,  sir.  When  it  didn’t  run  over  the  flash-boards,  I didn’t 
take  any  measures  at  all.  I .took  the  measures  when  it  ran  over 
the  flash-boards. 

Q.  What  was  your  reason  for  taking  measurements  then,  and 
not  taking  any  other? 

A.  Those  were  my  orders — to  take  it  when  it  ran  over  the  flash- 
boards,  that  is  all. 

Q.  You  have  the  charge  of  the  canal  and  dam,  and  have  had 
for  several  years  ? 

A.  Under  my  superiors. 

Q.  You  are  every  day  over  it,  are  you  not? 

A.  Yes,  sir;  more  or  less. 

Q.  Were  you  there  when  the  commissioners  were  there  to  view 
the  canal  ? 

A.  I was  not  with  them. 

Q.  At  the  hours  they  were  there,  from  10  to  1,  was  any  water 
running  in  Wood’s  canal  and  the  Bleachery  canal? 

A.  I can’t  tell.  I don’t  know  what  day  they  were  there. 

Q.  Has  any  sand  drifted  into  the  canal  at  Wood’s  flume? 

A.  There  may  be  some. 

Q.  Haven’t  you  been  applied  to  several  times  to  take  it  out? 

A.  No,  sir ; I never  have  been  asked  to  take  it  out. 

Q.  Hasn’t  Mr.  Wood  applied  to  you  to  take  it  out? 

A.  I have  never  been  applied  to  to  take  it  out,  to  my  knowl- 
edge. 

Q.  Have  you  had  any  talk  with  Mr.  Wood  about  that  sand? 

A.  I can’t  say  whether  he  has  ever  mentioned  about  the  sand  or 
not.  I can’t  recollect  anything  about  it. 

Q.  Haven’t  you  seen  the  water  there  so  that  you  could  walk 
through  Wood’s  canal  and  the  Bleachery  canal  dry-shod? 

A.  Yes,  sir.  I have  seen  it  when  there  was  no  water  at  all 
running  there. 

Q.  A good  many  times? 

A.  I can’t  tell  how  many  times. 

Q.  A good  many  times  ? 

A.  How  many  times  do  you  call  “ a good  many  ”? 

Q.  I should  call  a hundred  a good  many.  Have  you  seen  it  a 
hundred  times? 

A.  I don’t  know.  I never  kept  any  account  of  it. 

Q.  You  know  what  I mean.  I want  you  to  give  us  some 
general  idea.  I don’t  want  to  catch  }'OU.  Within  the  period  of 
two  years,  can’t  you  give  us  some  idea  how  often  you  have  seen 
the  water  so  that  you  could  walk  diy-shod  below  the  Wamesit  dam 
down  to  Wood’s  canal  and  the  Bleachery? 

A.  I can’t  tell,  because  I have  never  kept  any  record  of  it. 

Q.  Can’t  you  tell  anything  you  have  not  kept  a record  of,  sir? 
Is  your  mind  so  blank  as  that  ? 


Testimony  of  Joseph  Tilton. 


717 


A.  I am  not  supposed  to  guess,  as  I know  of. 

Q.  Are  you  not  willing  to  give  us  fair  testimony? 

A.  I never  have  kept  any  account  of  it. 

Q.  I don’t  want  it  as  certain.  I want  it  as  you  would  testify  to 
other  things.  I want  to  know  from  you  as  the  man  who  has  had 
charge  of  that  canal  whether  you  cannot  give  us  some  idea,  more  or 
less  accurate,  of  how  much  of  the  time  you  could  go  across  that  por- 
tion of  the  canal  dry-shod  in  the  twelve  working  hours  of  the  day. 
I don’t  want  to  detain  you  long,  but  give  us  some  idea.  A good 
many  times,  wouldn’t  it  be? 

A.  I can’t  tell,  sir.  I can’t  tell  you  how  many  times,  but  I have 
seen  it  so  I could  go  across  without  wetting  my  feet,  if  I had  on 
tight  shoes. 

Q.  When  the  mills  are  running,  and  the  Wamesit  wheels  are 
running,  is  there  not  generally  a loss  of  water  in  that  canal?  Isn’t 
it  drawn  down  very  low  ? 

A.  Oh,  yes,  sir.  I have  seen  it  so  that  there  was  not  supply 
enough  for  the  wheels. 

Q.  (By  Mr.  Butler.)  Do  you  mean  to  say  generally,  through 
the  whole  year,  or  through  the  dry  season? 

A.  The  dry  season. 

Q.  (By  Mr.  Shattuck.)  What  time  in  the  day  do  you  consider 
the  water  the  lowest  and  highest? 

A.  It  is  highest  in  the  morning. 

Q.  About  what  time  in  the  morning? 

A.  Well,  it  is  highest  when  we  first  start,  about  seven  o’clock. 

Q.  When  is  it  the  lowest? 

A.  Probably  along  in  the  afternoon,  about  three  or  four 
o’clock. 

Q.  If  it  was  only  running  over  the  flash-boards  two  or  three 
inches  at  half-past  eight,  would  you  expect  it  sometime  during  the 
day  not  to  run  over? 

A.  Yes,  sir.  If  it  didn’t  run  over  more  than  two  inches,  I 
shouldn’t  expect  that  it  would  not  run  over  at  all. 

Q.  If  it  didn’t  run  over  more  than  three  or  four  inches  in  the 
morning,  wouldn’t  you  expect  it  not  to  run  over  at  all  sometime 
during  the  day? 

A.  If  it  ran  over  three  or  four  inches,  I should  expect  it  would 
drizzle  over  all  day,  until  towards  night. 

Q.  If  it  didn’t  run  over  more  than  four  inches  at  half-past  eight 
in  the  morning,  there  would  be  sometime  during  the  day  when  it 
wouldn’t  run  over  at  all,  would  there  not? 

A.  I should  think,  if  it  ran  over  three  or  four  inches  in  the  morn- 
ing that  we  could  start,  and  along  in  the  afternoon,  or  about  noon, 
the  Billerica  water  would  get  down,  and  help  it,  so  that  it  would 
drizzle  a little  mite  over  the  flash-boards. 

Q.  Hardly  run  over,  would  it?  You  would  not  call  it  running 
over,  would  you  ? 

A.  No,  sir. 

Q.  At  three  or  four  o’clock,  don’t  you  think  it  would  be  likely 
to  stop  running  over  wholly  ? 

A.  If  it  ran  over  three  or  four  inches  in  the  morning,  I should 
think  it  would  run  over  all  day  a very  little. 


718 


Testimony  of  Joseph  Tilton. 


Q.  Now,  by  your  statement  here,  in  the  month  of  Juty,  1874,  it 
appears  that  it  was  running  over  3^  inches,  3£,  3,  1,  1,  3,  4, 

5,  5,  3,  4,  3,  4,  3,  1.  Wouldn’t  you  say  that  all  those  days  when 
it  didn’t  run  over  three  inches  at  the  time  you  measured  it,  it  prob- 
ably didn’t  run  over  all  da}r? 

A.  If  it  didn’t  run  over  three  inches  in  the  morning,  it  didn’t 
run  over  all  day. 

Q.  In  September,  there  were  five  days  when  it  ran  over  one 
inch  only ; another  day  a half  inch,  another  a half  inch,  another 
one-quarter,  another  one-quarter.  Of  course,  it  did  not  run  over 
all  day  on  those  days  ? 

A.  No,  sir. 

Q.  Why  do  you  take  3rour  measurements  at  half-past  eight. 

A.  I never  wanted  to  take  them  until  the  mills  had  got  fairly 
going,  and  the  water  began  to  draw  down.  Of  course  the  water 
would  draw  down,  and  I used  to  make  it  my  business  to  take  the 
measurement  as  nearly  as  I could  as  soon  as  the  mills  got  fairly 
running. 

Q.  Mr.  Wood  runs  down  to  eleven  o’clock  generally,  and  then 
stops  for  want  of  water,  don’t  he  ? 

A.  That  is  frequently  the  case. 

Q.  Mr.  Wood  was  generally  running  at  the  time  you  meas- 
ured. 

A.  Yes,  sir.  They  were  all  using  all  they  could  get. 

Q.  Who  requested  you  to  make  the  measurements  ? 

A.  I made  them  by  the  order  of  our  superintendent  in  the 
Wamesit  Power  Company. 

Q.  For  what  purpose  did  you  make  them  ? 

A.  I can’t  tell  you.  My  orders  were  to  do  it,  and  I didn’t  ask 
any  questions. 

Q.  Was  that  time  fixed  by  him? 

A.  He  told  me  to  commence  taking  the  water,  and  I did.  I 
never  asked  any  questions,  and  he  never  told  me  what  it  was 
for. 

Q.  Did  he  tell  you  to  take  the  measurements  at  half-past 
eight? 

A.  No,  sir ; he  simply  told  me  to  take  the  water,  and  I estab- 
lished that  rule,  I think  ; I don’t  know. 

Q.  How  did  you  measure  the  water? 

A.  I took  a straight-edge.  There  is  what  is  called  a bench  cut 
in  the  ledge  just  as  high  as  the  cap  of  the  dam  — a square  bench 
cut  right  in.  I took  a straight-edge  and  measured  it  on  the  dam, 
and  got  a certain  land-mark,  and  then  I took  my  measures. 

Q.  (By  Mr.  Butler.)  Afterwards  there  was  a gauge  set  up, 
wasn’t  there? 

A.  There  was  a gauge  set  up  by  somebody.  I never  used  to 
use  that  at  all,  because  I couldn’t  understand  it.  It  was  not  set 
up,  as  I thought,  right. 

Q.  (By  Mr.  Richardson.)  Which  side  of  the  dam  did  you 
measure  from? 

A.  From  the  side  next  to  Lawrence  street. 

Q.  There  is  a trifling  inequality  in  the  dam,  isn’t  there?  When 


Testimony  of  W.  H.  McDaniels. 


719 


it  is  exactly  flowing  over,  it  will  be  a little  higher  at  one  end  than 
the  other,  will  it  not? 

A.  Yes,  sir  ; but  I took  it  at  the  lowest  place.  There  is  a little 
jog  of  about  three  inches  in  the  dam  where  it  runs  out  a little 
ways,  and  I used  to  take  it  at  the  lowest  place. 


Walter  H.  McDaniels,  sworn. 

Q.  (By  Mr.  Butler.)  How  long  have  you  been  employed  as 
acting  superintendent  at  the  Wamesit  Power  Company?  * 

A.  I have  had  an  active  connection  with  it  since  1868,  a little 
before  the  first  of  October  ; about  eight  years. 

Q.  And  jmu  are  there  now  ? 

A.  Yes,  sir. 

Q.  The  business  of  the  Wamesit  Power  Company  is  simply 
letting  power,  isn’t  it? 

A.  Yes,  sir  ; and  furnishing  it. 

Q.  It  carries  on  no  manufacturing  itself? 

A.  No,  sir. 

Q.  How  many  different  buildings  has  it  in  which  it  lets  power? 

A.  It  has  about  forty  buildings,  speaking  roughly.  I should 
want  our  plans  to  give  you  an  accurate  count.  But  they  are  not 
forty  different  concerns. 

Q.  The  first  building,  commencing  at  the  top  of  the  canal,  is 
used  by  the  saw-mill? 

A.  Yes,  sir. 

Q.  What  time  in  the  year  was  that  used  ? 

A.  Principally  in  the  fall,  winter  and  spring. 

Q.  When  was  it  allowed  to  run,das  regards  the  water  flowing 
over  the  dam  ? 

A.  When  we  had  water  to  spare. 

Q.  And  no  other  time  ? 

A.  No  other  time. 

Q.  What  is  the  next  mill  below  that  uses  the  water? 

A.  The  acid  works  of  Taylor  & Barker  use  the  water,  but  they 
have  no  power  ; they  use  it  for  chemical  purposes. 

Q.  Do  you  know  about  how  much  they  use,  — the  size  of  the 
pipe? 

A.  They  use  a six-inch  pipe,  and  I think  another ; but  it  is  a 
small  head  ; I think  they  use  about  one  horse-power. 

Q.  You  rate  your  power,  do  you  not,  at  a horse-power  for  every 
half-foot  of  water  over  the  fall? 

A.  Not  up  there. 

Q.  But  you  rate  your  power  at  your  full  fall  at  half  a foot  per 
horse-power,  do  you  not? 

A.  It  has  been  our  custom  to. 

Q.  What  is  the  next  mill? 

A.  It  is  a shoddy  mill,  we  call  it.  E.  Hapgood  & Sons,  mat- 
tress manufacturers.  They  pick  some  sort  of  rags  to  make 
mattresses. 

Q.  What  power  do  they  use  there  ? 


720 


Testimony  of  W.  H.  McDaniels. 


A.  We  have  rented  22  horse-power.  That  amount  is  rented 
and  paid  for ; not  in  that  place  alone,  sir,  but  from  that  wheel. 

Q.  That  runs  by  belting  carried  into  another  building? 

A.  Into  a building  just  opposite  it. 

Q.  What  is  the  head  there? 

A.  I can’t  tell  you,  sir. 

Q . Considerably  less  than  below  it,  isn’t  it? 

A.  Oh,  yes,  sir. 

Q.  About  how  many  feet  — ten,  fourteen,  or  fifteen? 

A.  It  varies  from  ten  to  twelve,  I think. 

♦ Q.  What  are  the  restrictions,  if  any,  upon  their  running? 

A.  We  had  a right  to  stop  them  when  the  water  was  not  running 
over  the  flash-boards,  giving  them  permission  to  run  nights  to 
make  it  up. 

Q.  What  is  the  next  below  that? 

A.  It  is  the  Carter  place,  to  which  the  Hi3cox  File  Company  is 
attached,  or  was.  William  H.  Carter,  wool-washer. 

Q.  How  much  does  he  use? 

A.  We  rent  him  ten  horse-power. 

Q.  What  fall  has  he,  about? 

A.  Not  much  more  than  the  one  above.  I can’t  say,  sir ; ten 
or  twelve  feet. 

Q.  When  does  he  run  ? 

A.  He  runs  the  same. 

Q.  Nobody  above  Faulkner’s  runs  except  when  there  is  a sur- 
plus of  water? 

A.  No,  sir;  we  have  a right  to  stop  them.  We  did  whenever 
we  found  need  of  the  water. 

Q.  Then  what  is  the  one  next  below? 

A.  J.  Hiscox  hired  eight  horse-power  from  that  same  wheel,  in 
addition  to  Carter,  and  I think  used  more.  We  never  had  an 
opportunity  to  weigh  him  up  ; he  had  very  heavy  machine^. 

Q.  You  have  spoken  of  weighing.  Have  you  weighed  out  the 
power  to  the  several  tenants  ? 

A.  No,  sir. 

Q.  Then  next  comes  Faulkner.  He  has  50  horse-power;  hasn’t 
he  25  cubic  feet? 

A.  He  has  what  he  bought ; I am  not  prepared  to  say  that. 

Q.  Then  next  is  the  Chase  mill ; then  the  Sterling.  Now,  how 
is  the  Sterling  mill  situated  on  the  canal  in  regard  to  being  situ- 
ated at  a bend  ? 

A.  It  is  situated  so  that  its  flume  very  nearly  runs  with  the 
current ; that  is,  it  faces  the  straight  part  of  the  canal,  running 
up  towards  the  dam. 

Q.  Whether  they  can  draw  water  as  long  as  or  longer  than  any- 
body else? 

A.  It  has  been  the  universal  impression  that  they  could. 

Q.  And  is  it  yours  ? 

A.  Yes,  sir. 

Q.  Then  the  next  mill  is  which? 

A.  The  American  Bolt  Corapan}'. 

Q.  They  have  36  feet  of  water? 


Testimony  of  W.  H.  McDaniels. 


721 


A.  I believe  so. 

Q.  Then  the  next  is  the  Belvidere  Woollen  Company? 

A.  Yes,  sir. 

Q.  They  have  how  much? 

A.  27  feet. 

Q.  Then  the  next? 

A.  There  is  a collection  of  buildings  belonging  to  the  Wamesit 
Power  Company.  We  lease  them. 

Q.  They  own  the  buildings  and  lease  the  buildings  and  lease 
power  with  the  buildings? 

A.  Yes,  sir. 

Q.  What  is  the  next  mill? 

A.  There  is  a small  building  used  as  a machine  shop. 

Q.  How  much  power  do  they  have  ? How  much  is  the  highest 
amount  you  have  let  to  them? 

A.  It  is  just  the  same  now  it  always  was ; two  horse-power. 
That  is  guaranteed  all  the  time ; it  is  all  good  power. 

Q.  All  the  Wamesit  horse-power  that  are  let  are  guaranteed 
during  the  working  hours  of  the  day  through  the  whole  year,  in 
the  leases? 

A.  They  are.  When  a guarantee  is  required,  we  make  it  good 
with  steam,  beginning  at  this  point. 

Q.  And  you  make  it  good  by  the  addition  of  steam  when  you 
are  short  of  water? 

A.  Yes,  sir. 

Q.  What  is  the  next  one? 

A.  William  H.  Carter,  again  ; a cluster  of  buildings.  He  pays 
for  12  horse-power. 

Q.  What  is  the  next  building? 

A.  I can’t  give  these  in  succession  ; they  are  all  spread  round. 
I can  tell  you  all  the  rentals  in  that  place  if  you  want  me  to.  I 
will  take  them  as  nearly  in  order  as  I can.  Jenks  & Co.,  shuttle- 
makers. 

Q.  How  much  power  do  they"  have? 

A.  They  pay  for  eight  horse-power. 

Q.  What  is  the  next? 

A.  The  United  States  Cartridge  Company. 

Q.  How  much  do  they  have  ? 

A.  20  horse-power. 

Q.  What  is  the  next? 

A.  John  Walch. 

Q.  What  does  he  do  ? 

A.  He  isn’t  there  now ; that  building  is  vacant.  We  rented 
him  13  horse-power. 

Q.  What  is  the  next? 

A.  There  is  a blacksmith’s  shop  with  a fan,  which  takes  one 
horse-power ; they  pay  for  one. 

Q.  What  next? 

A.  A cotton-mill. 

Q.  How  many  horse-power  went  with  that? 

A.  71  horse-power  in  three  buildings. 

Q.  What  next  ? 


722 


Testimony  of  W.  H.  McDaniels. 


A.  George  Naylor,  carpet  manufacturer. 

Q.  How  many  horse-power? 

A.  He  pays  for  20.  He  has  water  in  his  dye-house  besides, 
which  certainly  is  not  reckoned  in  that  power. 

Q.  How  much  does  he  use  in  his  dye-house? 

A.  One  horse-power,  certainly,  dyeing,  washing  and  scouring ; 
probably  more. 

Q.  What  next? 

A.  The  Bunting  Company. 

Q.  How  much  do  they  have  ? 

A.  50  horse-power,  besides  water  for  scouring  and  dyeing. 

Q.  How  much  do  they  use  for  scouring  and  dyeing? 

A.  Two  horse-power. 

Q.  What  next? 

A.  There  is  a machine  shop,  with  four  horse-power  — John 
McCann.  It  is  not  run  now. 

Q.  What  next? 

A.  Hart  & Co.  They  pay  for  three. 

Q.  I observe  that  you  put  a little  emphasis  on  the  word  “ pay.” 

A.  I cannot  tell  you  how  much  they  have ; I think  almost  all 
of  them  have  more  than  they  pay  for,  but  I may  be  incorrect  about 
that.  One  naturally  gets  into  that  notion. 

Q.  Who  next,  sir? 

A.  That  is  all  that  is  rented. 

Q.  Part  of  those  mills  are  not  now  running? 

A.  No,  sir. 

Q.  How  many  horse-power  have  you  altogether  there,  sir? 

A.  246  is  the  net  horse-power  paid  for,  I think.  I have  men- 
tioned the  water  taken  for  dyeing. 

Q.  Is  that  added  in  ? 

A.  That  is  not  included  ; that  is  comparatively  small. 

Q.  About  four  or  five  horse-power? 

A.  Probably. 

Q.  (By  Mr.  Richardson.)  That  includes  some  that  is  only 
used  when  the  water  runs  over  the  dam? 

A.  Yes,  sir ; I may  say  that  that  restriction  has  been  very 
seldom  enforced,  I do  not  think  that  all  those  companies  that 
have  that  restriction,  during  my  connection  with  the  Wamesit 
Power  Company,  have  been  stopped  a month  during  eight  years. 
I don’t  think  so  ; but  that  may  be  a mistake. 

Mr.  Richardson.  I think  that  has  a tendency  to  explain. 

Mr.  Butler.  Undoubtedly  it  has. 

Q.  (By  Mr.  Storey.)  You  mean,  taking  all  the  time,  it  would 
not  make  more  than  a month? 

A.  All  the  time.  It  may  be  more  ; I can’t  tell. 

Q.  (By  Mr.  Butler.)  Practically,  nobody  shuts  down  his  gates 
when  the  water  comes  down  in  the  canal? 

A.  No,  sir,  I never  knew  them  to,  except  the  Wamesit  Power 
Company,  and  they  had  to. 

Q.  As  long  as  there  was  any  water  coming  by  a man’s  mill,  he 
took  it ; that  was  so,  wasn’t  it  ? 

A.  Yes,  sir. 


Testimony  of  W.  H.  McDaniels. 


723 


Q.  Well,  the  Wamesit  had,  beside  its  surplus  power,  68  cubic 
feet  belonging  to  them  ? 

A.  I so  understand  it. 

Q.  Whenever  you  are  short  of  water  you  supplemented  the  water 
with  the  engine,  didn’t  you? 

A.  Yes,  sir. 

Q.  Have  you  any  means  of  telling  how  long  you  ran  your  en- 
gine in  any  year? 

A.  Yes,  sir. 

Q.  Will  you  give  the  commissioners  that?  In  the  first  place, 
how  many  engines  have  you  ? 

A.  Two. 

Q.  What  is  their  capacity  ? 

A.  We  rate  one  engine  at  125,  and  the  other,  which  is  a double 
Corliss  engine,  I have  always  rated  at  350  ; we  have  never  tested 
it.  1 was  told  that  that  was  its  capacity.  We  bought  it  for  that. 

Q.  The  350  horse-power  engine  was  not  put  in  until  after  the 
taking  of  the  water  in  1872? 

A.  It  was  started  July  7,  1873. 

Q.  Now,  won’t  you  tell  the  commissioners,  going  back  to  July, 
1870,  and  coming  down  to  July,  1876,  how  long  you  ran  your 
engine  ? 

A.  I can  give  it  to  you  from  my  books,  but  not  now.  I did  not 
know  what  you  wanted. 

Q.  How  soon  can  you  give  it  to  us  ? 

A.  It  will  take  me  about  an  hour  to  calculate  it.  I have  the 
number  of  da}^s  in  which  these  engines  were  run,  both  of  them,  in 
a year,  from  the  1st  of  October  to  the  1st  of  October. 

Q.  For  how  long? 

A.  The  Wright  engine  from  1868. 

Q.  You  need  not  go  back  any  farther  than  1870.  I should  like 
to  have  you  give  us  that,  after  the  recess. 

A.  I can  give  you  the  Corliss  engine  now.  That  was  started  on 
the  7th  of  July,  1873.  In  July,  1873,  it  ran  25  days.  When  it 
runs  at  night,  or  anything  of  that  kind,  I call  it  a day. 

Q.  Did  you  ever  stop  your  wheels  in  the  daytime  for  the  pur- 
pose of  running  your  engine  at  night? 

A.  No,  sir.  I might  say  that  the  Corliss  engine  never  has  been 
run  at  night ; but  in  my  other  table,  when  we  were  repairing  the 
canal,  the  Wright  engine  was  run  at  night,  and  I called  a night  a 
day,  in  making  up  the  table  in  my  coal  account. 

Q.  I wish  you  would  strike  the  nights  out  of  the  table,  and 
put  them  in  another  place,  so  that  everybody  can  have  the  advan- 
tage of  it. 

A.  The  Corliss  engine  was  run  25  days  in  July.  I think  there 
are  some  quarter-nights  there  ; I shall  have  to  look  at  that.  I think 
there  is  some  extra  time  in  that  month.  I can’t  give  you  here  the 
quantity  of  extra  time. 

Commissioner  Francis.  If  we  call  11£  hours  a day,  we  shall 
have  it? 

Mr.  Butler.  Yes,  sir. 

Q.  (By  Mr.  Russell.)  Do  you  mean  that  it  ran  all  day  11£ 
hours,  whenever  you  have  got  a day  down  ? 


724 


Testimony  of  W.  H.  McDaniels. 


A.  At  that  time  11  hours  was  a day  with  us  ; it  is  not  now. 

Q.  Then  you  do  not  mean  that  these  are  the  days  on  which  it 
run,  but  that  it  actually  ran  a day’s  work? 

A.  A day’s  work  ; and  there  is  some  running  over  to  make  up 
time.  We  had  to  stop  in  order  to  put  in  this  engine  and  connect 
it,  and  that  accounts  for  it ; but  to  the  best  of  my  knowledge, 
except  that  month,  we  have  not  run  any  extra  time  with  that  en- 
gine. Eighteen  daj^s  in  August ; seventeen  and  a half  days  in 
September  ; six  and  a half  days  in  October.  It  was  not  run  again 
until  November,  1874,  six  days  in  that  month.  It  has  been  put  on 
at  different  times  and  taken  off.  Six  days  running  time  ; it  is  not 
necessarily  successive  days ; twelve  and  a half  days  in  December ; 
twenty-six  and  a half  in  January,  1875 ; twenty-four  in  February  ; 
seven  in  March.  Started  in  July,  1876,  again,  and  ran  nine  and  a 
half  days  ; five  and  a half  in  August ; fourteen  and  a half  in  Sep- 
tember, this  year. 

Q.  (By  Mr.  Butler.)  When  you  ran  the  Corliss,  did  you  run 
the  light  engine? 

A.  When  we  started  first  in  1873,  there  were  times  when  we 
did  ; and  in  1875  the  light  engine  was  run  for  a few  day.  For  a 
period  of  a year  it  has  not  been  touched. 

Q.  When  }Tou  ran  the  engine,  did  you  run  your  whole  works  by 
it  and  shut  down  the  water,  or  did  you  run  it  auxiliary  to  the 
water  ? 

A.  Auxiliary  to  the  water,  always  with  the  Corliss  engine  ; varjT- 
ing  our  water-gates — raising  them  when  we  could  get  anymore 
water,  — as  the  canal  varied  ; and  at  such  times  it  varies  a good 
deal. 

Q.  You  only  supply  power  from  the  steam-engine  to  those  mills 
that  you  speak  of,  — the  Wamesit  Power  mills  down  below  the 
Belvidere  mill? 

A.  Yes,  sir  ; that  is  all. 

Q.  How  much  per  horse-power  did  you  rent  this  horse-power 
for? 

A.  $75  a year  per  horse-power. 

Q.  To  those  guaranteed  parties  ? 

A.  Yes,  sir. 

Q.  Has  that  been  the  continuous  price  since  jrou  have  been 
there  ? 

A.  Yes,  sir. 

Q.  You  made  an  extra  charge  for  rent  of  the  buildings? 

A.  Yes.  sir. 

Q.  Was  the  number  of  horse-power  let  the  effective  horse-power 
on  the  pulley  in  the  building  that  the  man  was  using? 

A.  We  were  supposed  to  deliver  that  power  from  our  main  line 
in  each  building. 

Q.  The  line  of  shafting  ran  through  the  building,  and  y^ou  de- 
livered the  power  from  that,  so  that  the  company  was  at  the  ex- 
pense of  the  loss  of  power  between  the  engine  and  the  pulley  that 
the  man  took  his  power  from  ? 

A.  Yes,  sir. 

Q.  Whether  the  extent  of  shafting  and  the  number  of  buildings 
make  the  percentage  of  loss  there  very  considerable  ? 


Testimony  of  W.  H.  McDaniels. 


725 


A.  Yes,  sir. 

Q.  What  percentage  should  you  say  would  be  lost  in  the  Wa- 
mesit  Power  Company’s  buildings? 

A.  It  was  a large  percentage  owing  to  the  position  of  the  build- 
ings and  the  poverty  of  the  appliances.  I think  it  must  have 
been  one-third,  at  least,  of  all  the  power  let. 

Q.  (By  Mr.  Shattuck.)  That  is,  they  paid  for  one-third  more 
than  they  got? 

A.  No,  sir ; they  paid  for  what  they  got,  and  we,  in  order  to 
give  it  to  them,  had  probably  to  spend  from  70  to  80  horse-power 
for  nothing ; we  had  to  throw  that  away. 

Q.  (By  Mr.  Butler.)  Have  you  got  plenty  of  power  to  let 
now,  sir? 

A.  At  present,  yes,  sir ; our  buildings,  some  of  them,  are  idle. 
I have  given  you  what  we  rented  in  those  buildings. 

Q.  Was  Mr.  Tilton  acting  under  your  direction  in  measuring 
the  water? 

A.  I told  him  to  measure  it,  having  instructions  from  Mr. 
Farrington. 

Q.  Why  was  the  hour  between  eight  and  nine  chosen  ? 

A.  The  desire  was  to  get  some  hour  which  would  be  on  the 
whole  a fair  one,  as  we  thought,  and  Mr.  Tilton’s  judgment  was 
taken  in  that  matter. 

Q.  Fair  in  what  regard  ? 

A.  Well,  as  to  the  average  height  of  the  water  on  the  dam.  I 
left  that  to  Mr.  Tilton. 

Q.  What  time  do  you  feel  the  water  from  Billerica  when  the 
water  is  low  ? 

A.  I can’t  say  absolutely,  sir. 

Q.  Well,  about  what  time  in  the  day? 

A.  The  middle  of  the  forenoon,  from  ten  to  eleven,  I should 
say. 

Q.  During  any  of  these  years  that  you  have  been  speaking  of, 
did  they  stop  up  at  Talbot’s  dam,  for  the  purpose  of  repairing  the 
dam,  or  repairing  the  bulkheads? 

A.  I can’t  say  ; I have  heard,  several  times  since  my  connection 
with  the  Wamesit  Power  Company,  of  stoppages  there,  but  I 
never  had  any  knowledge  of  them. 

Q.  Have  you  found  a sudden  cessation  of  water? 

A.  I have,  several  times.  The  water  has  dropped  ; but  I can’t 
tell  from  what  cause. 

Q.  The  water  would  suddenly  drop  ? 

A.  Yes,  sir. 

Q.  And  remain  in  that  condition  some  days? 

A.  Oh,  yes,  sir ; so  that  we  would  have  to  put  on  steam. 

Q.  And  then  go  on  again? 

A.  I don’t  know.  If  you  will  allow  me  to  look  at  my  diary, 
which  I kept,  I think  I can  recall  a case.  [Witness  refers  to 
diary.]  From  July  6 to  July  13,  1874,  there  was  such  a case; 
there  may  have  been  others  which  I have  not  noted. 

Q.  Has  it  been  your  business  to  observe  the  water  for  the  pur- 
pose of  starting  the  engine,  or  having  it  ready,  to  anticipate  a 
stoppage  of  the  power  by  water  ? 


726 


Testimony  of  W.  H.  McDaniels. 


A.  Yes,  sir. 

Q.  Have  you  carefully  observed  the  state  of  the  water  from 
time  to  time? 

A.  Yes,  without  making  any  notes. 

Q.  Well,  sir,  what  portion  of  the  year  do  you  say  that  the 
water  runs  over  the  flash-boards  some  part  of  the  time? 

A.  About  three-quarters  of  the  time ; nine  months  in  the 
year. 

Q.  What  portion  of  the  time  should  you  say  that  it  runs  over 
all  day? 

A.  Nearly  half ; nearly  six  months. 

Q.  Won’t  you  now  give  the  commissioners  the  best  idea  you  can 
of  how  the  water  operates  on  the  river,  how  you  find  it  as  regards 
steadiness  in  keeping  on  during  the  day?  Just  tell  us  all  about  it. 

A.  Well,  during  the  time  of  the  year  when  there  is  fyom  eight 
to  fourteen  inches  running  over  the  flash-boards,  I think  there  is 
a very  slight  change  in  the  height  of  the  water  at  the  dam,  between 
morning  and  night.  My  observations  have  not  been  positive,  that 
is,  in  figures ; but  I have  had  occasion  a good  many  times  to 
compare  the  heights. 

Q.  At  such  times,  does  the  amount  of  water  from  Talbot’s  make 
an}r  impression? 

A.  I should  say'  not.  It  makes  no  impression  upon  our  rough 
requirements.  We  have  never  had  any  engineer’s  measurements. 

Q.  It  makes  no  visible  impression? 

A.  No,  sir  ; when  the  river  becomes  dry,  it  is  apt  to  drop  pretty 
suddenly,  I think. 

Q.  By  “ dry,”  you  mean  how  low? 

A.  In  dry  times,  when  there  is  but  very  little  water  running  in 
the  river.  We  suppose  ourselves  to  have  plenty  of  water  or  a fair 
supply,  the  water  keeping  about  even  with  the  flash-boards,  and  in 
three  days  it  may  get  low.  That  is,  it  will  run  along  even  with 
the  flash-boards  for  a series  of  days,  and  then  unexpectedly  drop. 
That  is,  it  has  been  unexpected  to  me  several  times.  When  there 
is  a fair  quantity,  and  a little  surplus  in  the  early  morning,  run- 
ning over  the  flash-boards,  — when  there  are  from  two  to  three 
inches  running  over  the  flash-boards  in  the  morning,  just  after  start- 
ing Up,  say  11  o’clock.  I think  we  keep  full  all  day.  It  is  even 
with  the  top  of  the  flash-boards  at  night. 

Q.  Well,  sir,  at  such  times,  does  it  fill  up  at  night  so  as  to  run 
over  by  morning? 

A.  I never  knew  it  not  to,  except  one  year,  that  was  a very  dry 
time ; I have  forgotten  the  year.  That  was  when  we  put  in  our 
head-gates.  I think  it  was  1870.  I ought  to  say,  I have  nothing 
to  call  me  to  the  head-gates  regularly,  and  my  testimony  on  this 
point  is  not  from  what  I have  seen.  My  impression  is  that  it 
always  runs  over  the  dam. 

Q.  At  any  rate,  that  is  what  you  act  upon  ? 

A.  Yes,  sir. 

Q.  Have  you  ever  been  down  the  road  from  Lowell  to 
Billerica? 

A.  Yes,  sir. 


Testimony  of  W.  H.  McDaniels. 


727 


Q.  Many  times? 

A.  Several. 

Q.  How  far  is  it? 

A.  I am  no  judge  of  distances  ; I can’t  tell  you  ; I should  have 
set  it  at  four  miles.  I go  over  one  of  the  roads  very  often,  the 
Cemetery  road. 

Q.  That  is  the  eastern  road? 

A.  The  eastern  road. 

Q.  That  runs  pretty  nearly  parallel  with  the  river,  don’t  it? 

A.  Well,  no,  the  river  bends  away  from  it.  I think  the  river 
runs  nearer  the  other  side,  the  Fair  grounds  side. 

Q.  How  is  the  stream  as  to  sensitiveness  to  rain?  When  there 
is  any  considerable  fall  of  rain,  is  it  easily  felt? 

A.  1 have  been  surprised  about  that.  I have  expected  the  river 
to  rise  when  it  has  not,  on  account  of  rain  ; on  the  other  hand,  it 
has  risen  when  I have  not  expected  it.  I have  frequently  watched 
for  a rise  in  the  river  on  account  of  rain  when  it  has  not  risen. 

Q.  And  then  it  has  risen  when  you  did  not  expect  it? 

A.  Yes,  sir. 

Q.  Whether  or  not  that  shows  you  that  it  was  controlled  by  the 
gates  above? 

A.  I don’t  know. 

Q.  Are  jt>u  ever  troubled  at  the  Wamesit  Power  Company  with 
back-water?  * 

A.  We  have  never  been  absolutely  stopped  by  back-water  ; we 
are  troubled  with  it ; we  have  back-water. 

Q.'  I see  you  ran  the  engine  in  March,  1875.  Was  that  on 
account  of  back-water,  or  because  you  were  short  of  water? 

A.  I can’t  say  ; I might  tell  by  referring  to  the  table. 

Q.  Whether  this  engine  has  ever  been  run  at  any  time,  not  for 
want  of  water,  but  because  the  anchor  or  other  ice  has  filled  the 
canal? 

A.  Yes,  sir. 

Q.  Whether  or  not  that  is  the  most  frequent  cause  of  running  it 
in  the  winter. 

A.  I can’t  say  now.  I think  it  is  the  case  more  than  half  the 
time,  and  it  may  be  more  than  that.  I can  tell  you  better  after 
looking  over  the  records. 

Q.  Except  the  times  you  have  put  on  the  engine,  have  all  the 
works  of  the  Wamesit  Power  Company,  when  they  were  full,  been 
carried  by  the  water-power? 

A.  We  have  carried  all  the  power  that  I have  given  an  account 
of  this  morning  by  water  alone. 

Q.  Now,  from  your  connection  with  the  stream,  and  your 
knowledge  of  it,  what  portion  of  the  year  should  you  judge  it 
would  afford  water  enough  to  carry  250  horse-power  at  the 
Wamesit  mills? 

A.  To  sell  at  250? 

Q.  Yes,  sir.  Let  other  people  go  on  as  they  do,  what  part  of  the 
year,  in  your  judgment,  would  the  Wamesit  Power  Company’s 
works  of  250  horse-power  be  carried? 

A.  Do  you  mean,  what  part  of  the  year  we  could  get  that  much 


728 


Testimony  of  W.  H.  McDaniels. 


power,  or  sell  that  much  power,  for  you  know  I said  there  was 
nearly  33  per  cent,  of  loss? 

Q.  I mean,  sell  that  much  power? 

A.  Nearly  six  months,  perhaps  more.  Since  I have  been  con- 
nected with  the  Wamesit  Power  Company  there  has  been  a great 
deal  of  variation  from  year  to  }rear  in  the  water  running  in  the 
stream.  One  or  two  3Tears  it  has  not  been  like  the  rest  at  all ; but 
I think  six  months  would  be  m}’ judgment. 

Q.  Reckoning  in  addition  the  amount  of  power  lost  by  trans- 
mission? 

A.  Whatever  it  is. 


AFTERNOON  SESSION. 

Walter  H.  McDaniels,  resumed. 

Q.  (By  Mr.  Butler.)  Can  you  give  us  now  the  time  since  1870 
when  the  Wright  engine  has  been  run  ? 

A.  These  figures  are  from  October  1 to  October  1.  From  Octo- 
ber 1,  1870,  to  October  1,  1871,  it  was  run  97  days  and  a half. 

Q.  How  much  of  that  time  on  account  of  repairs? 

A.  There  were  14  and  a half  days  when  it  was  run  when  there 
was  no  water  in  the  canal.  In  other  words,  there  were  83  net  days 
in  that  year. 

Q.  (By  Mr.  Storey.)  Do  I understand  that  that  means  the 
aggregate  number  of  days,  taking  half  a day  here,  and  three- 
quarters  of  a day  there,  and  so  on  ? 

A.  Yes,  sir.  From  October  1,  1871,  to  October  1,  1872,  we 
ran  the  Wright  engine  146  days. 

Q.  (By  Mr.  Butler.)  How  many  out  for  repairs  of  the  canal 
that  year? 

A.  I cannot  say  accurately,  but  a period  from  October  1 to 
December  4 it  was  run  because  we  were  taking  out  one  wheel  and 
putting  in  another,  that  is  about  fifty  days  ; and  from  December 
19  to  January  4 there  are  thirteen  more  days  that  I can  pick  out 
readily.  I have  not  the  data  here  to  get  all,  but  I am  sure  of  sixty- 
three  days  out  of  that  year  for  repairs. 

Q.  The  next  year? 

A.  From  October  1,  1872,  to  October  1,  1873,  there  were  125 J 
days. 

Q.  How  much  out  for  repairs  ? 

A.  I cannot  tell  you,  sir.  We  put  in  the  Corliss  engine  that 
year,  and  after  the  Corliss  engine  was  started  it  was  deemed  ad- 
visable to  run  in  two  separate  places,  not  to  connect,  and  we  ran 
through  from  the  middle  of  June  to  the  first  of  September ; we  ran 
that  engine  when,  I think,  we  did  not  need  it,  but  we  ran  sep- 
arately ; that  is,  I think  we  would  not  have  needed  it.  With  the 
Corliss  engine  running  on  one  side,  we  would  not  have  needed  the 
other. 

Q.  That  is,  you  hadn't  connected  them  together? 


Testimony  of  W.  H.  McDaniels. 


729 


A.  We  hadn’t  connected  them  together,  and  we  put  steam  on 
both  ends. 

Q.  You  cannot  tell  how  much? 

A.  No,  sir.  From  October  1,  1873,  to  October  1,  1874,  the 
Wright  engine  was  run  fifty-nine  days. 

Q.  Any  repairs  out  of  that? 

A.  None  that  I can  pick  out.  From  October  1,  1874,  to  Octo- 
ber 1,  1875,  the  Wright  engine  ran  forty-six  days  ; twenty-three 
days  out  of  that  there  was  no  need  of  running,  except  for  making 
repairs.  There  was  a break-down,  and  we  were  obliged  to  put  this 
engine  on  in  order  to  run.  There  was  a break-down  in  this  long 
line  of  shafting,  and  we  made  some  alterations  there.  During  the 
last  year  it  has  not  run.  We  have  started  it  and  run  it  half  a day 
at  a time  to  keep  it  from  getting  out  of  shape,  but  not  for  power. 

Q.  Half  a day  at  a time  to  keep  it  plumb? 

A.  Yes,  sir  ; to  keep  it  in  shape. 

Q.  Before  the  Corliss  engine  was  started  in  July,  1873,  your 
only  auxiliary  power  was  the  Wright  engine? 

A.  Yes,  sir ; I wish  to  correct  something  in  the  testimony  I 
gave  this  forenoon. 

Q.  Certainly,  sir ; get  it  right. 

A.  The  question  was  asked  me  about  our  stoppages  from 
anchor-ice,  what  proportion  they  bear  to  the  stoppages  during 
winter,  that  is,  the  running  of  the  engine  during  winter,  and  I 
said,  I think,  half.  It  certainly  was  not  over  a quarter;  about  a 
quarter,  I think,  all  the  time  when  we  ran  the  engine,  because 
parts  of  the  day  anchor-ice  would  come  down  and  trouble  us. 

Q.  Then  you  would  run  the  ice  over  the  ice-run  and  get  rid  of  it, 
and  start  up? 

A.  Yes,  sir ; or  the  cold  winds  would  stop  and  we  would  get  rid 
of  the  ice.  We  could  not  scrape  our  racks  clean  early  enough  in 
the  mornings ; there  would  be  water  enough  in  the  canal,  but  we 
had  to  keep  our  engine  on  for  that  purpose. 

Q.  How  long  a time  did  you  say  ? 

A.  I say  a quarter  of  the  time  during  winter  the  engine  ran 
from  causes  of  that  kind,  rather  than  from  lack  of  water.  There 
was  another  cause  for  our  running  in  the  winter  months,  from  our 
not  having  water  enough,  when  it  was  hardly  anchor  ice.  We  had 
no  way  of  getting  rid  of  the  ice  that  was  in  the  Wamesit  canal ; 
the  tenants  above  us  would  sometimes  break  the  ice  in  the  canal 
when  it  was  a foot  and  a half  thick,  and  shove  it  along,  and  it 
would  dam  us  full ; we  could  not  get  it  out  of  our  little  ice-run 
fast  enough  ; we  used  to  keep  a gang  of  men  getting  it  over,  and 
that  complicates  this  matter,  of  course. 

Q.  When  the  water  was  dammed  out  by  the  ice? 

A.  Yes,  sir.  But  on  the  26th  of  September,  1872,  I effected  an 
arrangement  with  the  people  above  by  which  we  kept  the  canal 
open,  and  were  not  troubled,  I think,  after  that.  We  kept  the 
canal  open  by  working  at  night ; we  had  men  on  at  night  and  ran 
it  over. 

Q.  Was  the  canal  widened  at  any  time? 

A.  Yes,  sir, 


730 


Testimony  of  W.  H.  McDaniels. 


Q.  And  deepened? 

A.  Yes,  sir. 

Q.  When  was  that? 

A.  In  1870  ; at  various  times,  but  principally  in  1870. 

Q.  At  various  times  since  1870? 

A.  We  have  done  a little. 

Q.  Before  1870,  we  stopped  the  larger  part  of  one  summer, 
didn’t  we,  to  dig  out  the  canal? 

A.  I think  that  was  in  1870,  sir. 

Q.  Stopped  the  larger  portion  of  the  summer  to  dig  out  the 
canal  and  to  put  in  new  head-gates? 

A.  Do  you  mean  that  the  water  was  out  of  the  canal  the  larger 
portion  of  the  summer? 

Q.  Yes,  sir. 

A.  No,  sir ; it  was  only  for  a short  time ; we  had  to  draw  it 
off  at  night  and  let  the  water  in  in  the  morning. 

Q.  How  long  a time  was  it  stopped? 

A.  I think  it  was  only  stopped  for  five  days. 

Q..  I don’t  think  of  anything  I wan’t  to  ask  you  further. 

A.  You  asked  me  about  the  sudden  rise  and  the  sudden  fall  of 
the  river,  and  told  me  to  tell  you. 

Q.  Yes,  sir? 

A.  I only  noticed  two  where  I thought  I could  not  account  for 
it,  and  that  was  in  July,  1872,  when  it  went  down  and  came  up 
suddenly  on  the  22d,  and  July  6 ; I think  I gave  that  before ; it 
came  up  July  13,  1874. 

Q.  Any  attributed  cause,  of  shutting  down  or  opening  the 
gates  up  above? 

A.  I do  not  know,  sir ; I didn’t  attribute  any  cause,  I only 
noticed  the  fact. 


Cross-examination . 

Q.  (By  Mr.  Shattuck.)  There  are  220  cubic  feet  a second  ab- 
solute^ sold  by  the  Wamesit  dam,  as  I understand  it? 

A.  I don’t  know  about  that ; I haven’t  the  data  with  me,  sir. 

Mr.  Shattuck.  That  was  stated. 

Mr.  Butler.  Yes,  sir.  That  is  so. 

Q.  (By  Mr.  Shattuck.)  The  Wamesit  Company  owns  68  cubic 
feet  per  second,  does  it  not  ? 

A.  The  Wamesit  Company,  I suppose,  owns  all  the  water  that 
runs  in  the  river.  I don’t  know  those  figures,  sir. 

Mr.  Shattuck.  It  has  been  stated  so  here;  we  will  assume 
that. 

Mr.  Butler.  That  is,  the  Wamesit  Power  Company,  when  it  is 
even  with  the  top  of  the  dam,  have  68  feet? 

Mr.  Shattuck.  I mean,  288  cubic  feet  of  water  per  second. 

Mr.  Butler.  Yes,  sir. 

Q.  (By  Mr.  Shattuck.)  The  number  of  horse-power  that  you 
guarantee  to  all  these  parties  is  about  204,  is  not  it,  that  you  guar- 
antee ? 

A.  I suppose  it  is  about  that ; I think  that  is  right,  sir. 


Testimony  of  W.  H.  McDaniels. 


731 


Q.  To  furnish  that  power,  you  require  about  102  feet  of  water 
per  second,  do  you  not? 

A.  If  the  rate  of  12£  to  25  is  right ; yes,  sir. 

Q.  (By  Mr.  Butler.)  No,  no  ; you  require  more  than  that ; 
you  require  a third  more. 

A.  To  run  the  shafting? 

Q.  Yes,  sir. 

A.  But  this  is  to  give  this  power. 

Q.  (By  Mr.  Shattuck.)  So  that  it  would  require  102  feet  of 
water  per*second  to  furnish  that,  allowing  that  there  is  no  more 
than  the  usual  waste,  would  not  it? 

A.  Well,  I cannot  follow  your  figures,  sir  ; it  looks  as  though  it 
would. 

Q.  You  have  stated  here,  that  you  allow  for  each  foot  of  water 
per  second,  two  horse-power  ? 

A.  Yes,  sir. 

Q.  Now  apply  that,  and  to  furnish  202  horse-power,  would  re- 
quire 102  feet,  would  not  it? 

A.  If  it  took,  — which  I don’t  believe  it  does  now,  because  we 
have  been  repairing  — if  it  took  about  33  per  cent,  of  the  net 
power  to  run  our  shafting,  there  would  be  272  horse-power  re- 
quired at  our  wheel. 

Q.  And  that  would  be  how  much? 

A.  That  would  be  136  cubic  feet. 

Q.  Now,  do  you  mean  by  that,  136  cubic  feet  a second? 

A.  Yes,  sir. 

Q.  Theoretical  horse-power  is  a fall  of  one  foot  in  eight-tenths, 
as  I understand  it.  It  falls  here  about  24  feet,  so  it  is  between 
102  and  136  somewhere  ; that  is  102  would  be  the  minimum  of  the 
water  required,  and  136  would  be  the  maximum  ; you  say  that, 
would  you  ? 

A.  I should  leave  it  for  an  engineer ; I should  only  say  I should 
want  102  horse-power  at  the  wheel. 

Q . Then  the  Wamesit  Company  have,  as  I understand  it,  68 
feet  out  of  the  288  ? 

A.  I so  understand  it. 

Q.  Then  the  Bleachery  has  36,  has  it  not? 

A.  I really  have  not  these  figures  in  my  mind. 

Q.  Then  the  Bleachery  uses,  practically,  how  much? 

A.  It  uses  a good  deal ; the  instant  there  is  dry  water  they  come 
to  me  about  it. 

Q.  But  they  probably  do  not  use  more  than  a very  few  horse- 
power, do  they? 

A.  I cannot  say  as  to  that ; my  impression  is,  that  they  use  a 
great  deal  of  water  at  certain  times,  but  at  other  times  they  use 
very  little  ; but  I have  seen  when  they  have  drawn  our  water  down 
at  times. 

Q.  That  may  be  from  extraordinary  occasions.  How  does  Mr. 
Wood  work  his  machinery,  when  other  people  don’t  work? 

Q.  I think  he  works  it  regularly  ; my  impression  is  he  does  ; I 
think  last  year  he  ran  all  the  year  regularly  ; I have  no  means  of 
knowing ; I keep  no  watch  upon  him,  but  I have  that  impression. 


732 


Testimony  of  W.  H.  McDaniels. 


Q.  Well,  the  Belvidere  has  27  horse-power,  and  hasn’t  run  for 
how  long? 

A.  I cannot  tell. 

Q.  Well,  about  how  long? 

A.  About  two  years,  I think. 

Q.  Well,  then,  you  add  twenty-seven,  and  when  the  Bleachery 
is  not  using  its  power,  and  Mr.  Wood  is  not  using  his  power,  and 
jTou  h^ve  sixty-eight,  adding  those  all  together  it  is  143  which  you 
would  have ; therefore,  if  the  Bleachery  is  not  drawing,  and  Mr. 
Wood  is  not  drawing,  and  the  Middlesex  is  not  drawing,  you 
would  have  all  the  horse-power  you  sell  and  guarantee  without  hav- 
ing over  288  feet  per  second,  would  you? 

A.  I do  not  know  anything  about  that ; I have  not  gone  over 
those  figures  ; I don’t  doubt  but  that  you  are  right. 

Q.  Well,  then,  besides  all  these,  your  power  is  never  all  let,  or 
has  not  been  during  the  last  four  or  five  }rears? 

A.  We  always  are  anxious  to  get  more  power,  to  save  steam. 

Q.  Has  there  been  any  time  when  all  your  power  was  let?  I 
have  no  doubt  you  are  anxious  for  more  water. 

A.  When  all  our  water-power,  about  all  the  capacity  of  our 
wheels,  is  not  let,  is  that  what  you  mean? 

Q.  You  have  stated,  for  instance,  that  John  Walsh  used  to  hire 
13  horse-power,  and  that  is  taken.  How  long  has  that  been? 

A.  That  has  been  taken  for  a jfear ; but  then  there  are  other 
people  in  it ; we  are  constantly  changing. 

Q.  Well,  that  is  the  fact,  you  are  constantly  changing ; and 
has  there  ever  been  a time  during  the  last  three  or  four  years, 
during  the  period  which  you  have  described,  when  all  this  power 
was  actually  used  ? 

A.  I really  don’t  know  what  you  mean.  What  power  do  you 
mean  ; the  capacity  of  the  water  in  the  canal? 

Q.  No,  sir ; that  is  an  entirely  different  thing.  For  instance, 
you  say,  machine  shop,  two  horse-power  ; William  H.  Carter,  eight 
horse-power ; United  States  Cartridge  Company,  twenty-eight 
horse-power,  et  cetera ; I should  like  to  know  if  there  has  been  a 
time  when  all  those  rooms  were  occupied,  and  all  this  power,  204, 
used? 

A.  Yes,  sir  ; that  has  been  all  occupied  and  run  at  one  time. 

Q.  When  was  it  last  all  occupied  ? 

A.  I can  hardly  say  that,  sir  ; but  about  two  years  ago,  I should 
think? 

Q.  Some  of  these  parties  who  hire  power  are  practically  the 
same  persons  in  interest  as  those  who  own  the  Wamesit  dam,  are 
they  not? 

A.  Not  to  my  knowledge. 

Q.  Well,  they  are  parties  who  are  interested? 

A.  Oh  ! they  are  people  interested  in  common. 

Q.  Now,  as  to  the  leases.  You  let  buildings  and  land,  and 
water-power.  Do  you  always  specify  so  much  for  the  water-power, 
and  so  much  for  the  land,  and  so  much  for  the  buildings? 

A.  We  always  stipulate  in  regard  to  the  power  to  be  delivered? 

Q.  Now,  then,  can  you  tell  me  the  rents  that  you  receive  from 


Testimony  of  W.  H.  McDaniels. 


733 


some  of  these  parties,  for  land  and  buildings,  as  well  as  for  power? 

A.  Yes,  sir.  They  vary  greatly,  according  to  their  require- 
ments. 

Q.  Take  one  that  occupies  a building? 

A.  Yes.  Well,  the  United  States  Cartridge  Company,  for 
instance. 

Q.  Well,  that  is  a new  building  ; take  one  of  those  old  buildings  ? 

A.  I will  take  several.  The  United  States  Cartridge  Company 
pays  $1,500  for  horse-power  and  $3,840  for  building  and  land. 

Q.  Do  yon  know  the  cost  of  that  building?  I take  it  the  books 
will  show. 

A.  I think  it  is  fair  to  say  that  these  buildings  bring  about  10 
per  cent,  on  their  value. 

Q.  How  much  do  you  call  the  land  ? 

A.  I cannot  tell  you  here,  sir  ; I have  not  the  figures. 

Q.  Is  not  really  the  value  of  the  land  dependent  wholly  upon 
the  horse-power?  Is  there  any  instance  where  you  let  land  with- 
out power? 

A.  In  this  particular  case  we  let  the  land. 

Q.  How  much  is  the  land  let  for? 

A.  I cannot  tell  you  the  figures. 

Q.  Is  there  any  case  where  the  land  is  put  down  as  a separate 
item? 

A.  Not  in  my  copy.  In  here  land  and  buildings  are  put  down 
at  $3,840. 

Q.  Have  not  }^ou  any  idea  of  how  you  value  that  land? 

A.  No,  sir  ; I have  not.  I never  had  the  reckoning  of  it. 

Q.  Now,  is  there  any  case,  or  don’t  you  know  the  value  of  the 
land? 

A.  No,  sir ; I do  not. 

Q.  (By  Mr.  Butler.)  Is  there  any  other  case  where  land  is 
let? 

A.  I am  inclined  to  think  not,  because  that  is  why  I took  this 
case. 

Q.  (By  Mr.  Shattuck.)  You  own  the  buildings,  and  you  let 
them? 

A.  Yes,  sir  ; for  so  much. 

Q.  And  of  course  that  lets  the  land  ? 

A.  Yes,  sir.  Here  is  the  case  of  J.  S.  Jacques  & Co.  The 
room,  we  call  it,  is  $500.  It  is  a building  with  sufficient  land  for 
manufacturing  purposes,  for  their  purposes.  There  is  a store- 
house, right  of  way,  et  cetera. 

Q.  (By  Mr.  George  S.  Richardson.)  Do  you  mean  to  say 
that  that  is  separate  in  your  leases?  Is  not  there  a gross  sum 
named  in  your  leases  covering  the  land,  buildjngs,  and  power? 
Don’t  the  parties  pay  you  a gross  sum?  Do  they  distinguish 
between  the  water-power  and  the  land? 

A.  If  they  are  going  to  take  out  machinery  they  are  generally 
very  anxious  to  say  “We  want  more,”  and  I say,  if  we  don’t 
care,  “ We  will  charge  you  $75  a horse-power.”  I have  had  cases 
where  they  have  taken  out  machinery  by  reason  of  the  hard  times. 

Q.  But  in  your  leases  it  has  all  been  for  a gross  sum? 


734 


Testimony  of  W.  H.  McDaniels. 


A.  Simply  for  horse-power  ; we  let  generally  for  a quarter. 

Q.  Don’t  you  let  the  buildings  and  horse-power  at  a gross  sum? 
For  instance,  a man  comes  to  you  and  wants  to  hire  a certain 
shop,  and  don’t  he  take  it  for  a certain  price  for  the  whole,  and 
don’t  pay  rent  for  the  building  and  the  land  all  in  one,  for  the 
land  and  power  ? 

A.  I am  inclined  to  think  our  quarterly  bills  specify  the  power 
used,  but  not  in  all  cases;  but  the  power  is  always  separately 
negotiated  for  and  charged  separately.  It  may  be  charged  “ rent 
for  three  months,”  and  probably  is. 

Q . Do  you  let  the  cotton  mills  71  horse-power  and  the  black- 
smith one  horse-power  at  the  same  rent? 

A.  Yes,  sir  ; $7. 

Q.  Do  any  of  them  have  written  leases? 

A.  Yes,  sir  ; they  have  had. 

Q.  What  does  that  blacksmith  pay  for  the  rest  of  his  premises  ? 

A.  $100  for  a building. 

Q.  And  what  does  the  cotton  mill  pay  for  the  rest  of  its 
premises? 

A.  The  cotton  mill  uses  a good  deal  of  power  in  a small  space  ; 
they  pay  $5,325  for  power  and  $1,012.50  for  room  ; they  had  no 
yard  room,  and  had  one  very  old  mill  which  was  not  considered 
worth  much. 

Q.  You  were  crowded  for  room,  and  it  is  an  object,  I suppose, 
to  sell  the  power  ? 

A.  Yes,  sir ; it  is  an  object  to  sell  the  power  as  quick  as  we 
could.  For  instance,  “ one  mill  and  power”  in  that  canal  goes 
with  the  right  to  use  27  horse-power,  and  the  whole  thing  was 
$2,750.  They  had  a right  to  use  that,  and  then  they  had  36  extra 
horse-power  more ; they  took  that  afterwards.  That  is  how  the 
extra  horse-power  came  that  way.  It  is  a separate  item. 

Q.  Are  you  an  engineer? 

A.  No,  sir. 

Q.  You  are  the  general  manager  of  the  property ; is  that  so? 

A.  My  position  there  is  accidental  rather  than  anything  else. 
I am  interested  in  another  mill,  and,  being  there  all  the  time,  I 
have  been  given  the  work  to  do. 

Q.  Are  you  interested  in  any  of  these  mills  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  How  much  have  the  mills  run  nights 
this  year  ; can  you  tell  us  ? 

A.  Whose  mills? 

Q.  Anybody’s  mills  on  the  Wamesit  dam,  to  your  knowledge. 

A.  Excepting  the  Wamesit  dam  ? 

Q.  No,  including  ours. 

A.  I cannot  tell  you.  The  upper  mills,  the  Chase  and  Faulkner, 
have  run  now  and  then  an  extra  time,  for  which  they  pa}',  and  one 
of  the  Wamesit  Power  Company’s  tenants  has  run  nearly  five 
months. 

Q.  Every  night ; twenty  hours  a da}'? 

A.  Pretty  nearly. 

’ Q.  Ending  when  ? 


Testimony  of  W.  H.  McDaniels. 


735 


A.  Over  five  months  now ; I mean  five  months  up  to  the  1st  of 
July.  I think  they  ended  early  in  September. 

Q.  (By  Mr.  Shattuck.)  Have  not  the  Bolt  Company  been 
running  only  a part  of  their  machinery  and  only  a part  of  the  time 
last  year? 

A.  They  were  stopped  a part  of  the  time,  and  then,  I think, 
they  ran  nights. 

Q.  That  is,  they  ran  nights  in  order  not  to  use  the  power  dur- 
ing the  day  ? 

A.  No,  sir ; they  got  orders  rather  beyond  their  capacity. 

Q.  But  it  is  an  irregular  thing? 

A.  Yes,  sir  ; it  is  an  irregular  thing. 

Q.  What  part  of  the  time  the  last  five  years  do  you  think  they 
have  used  their  36  horse-power? 

A.  I could  not  tell  you,  sir. 

Q.  Do  you  believe  they  have  used  it  half  of  the  time?  Would 
you  estimate  that  they  had  used  it  half  of  the  time  ? 

A.  Yes,  sir,  I would  ; and  more,  too. 

Q.  How  much  more  ? 

A.  I cannot  tell  you. 

Q.  But  they  have  stopped  part  of  the  time  ? 

A,  Yes,  sir ; they  have  run  half  of  the  time  sometimes,  and 
then  they  have  run  nights  in  addition  to  the  daytime. 

Q.  Then  you  make  them  pay  for  it  when  they  run  nights? 

A.  I have  the  right  to. 

Q.  Well,  you  do,  don’t  you? 

A . Yes,  sir,  I do. 

Q.  (By  M.  D.  S.  Richardson.)  You  have  had  more  power 
from  the  water  since  this  last  year,  haven’t  you?  The  engine 
hasn’t  run  at  all  since  the  last  year,  has  it? 

A.  The  Corliss  engine  has  run  a good  deal. 

Q.  You  said  up  to  the  last  year  the  engine  hadn’t  run  at  all  ? 

A.  That  was  the  Wright  engine. 

Q.  Up  to  how  much  power  do  you  run  the  engines  generally? 

A.  The  maximum  at  any  time  ? 

Q.  Yes,  sir,  ordinarily. 

A.  When  we  have  to  keep  the  engine  on  we  will  start  with 
enough  water  perhaps,  so  that  the  engine  is  not  doing  anything, 
and  then  perhaps  there  will  be  a drain  upon  the  engine  to  a certain 
extent  from  10  to  4. 

Q.  Between  what  extremes  do  j^ou  furnish  the  power  at  ? 

A.  Well,  with  this  engine? 

Q.  And,  during  the  day,  which  you  have  spoken  of  here,  that 
you  ran  so  many  days,  it  might  be  one  horse-power  a day,  or  it 
might  be  20,  when  you  have  run  for  several  days  ? 

A.  We  have  run  our  entire  works  by  steam,  with  all  the  wheels 
shut  down,  in  my  experience. 

Q.  That  is  the  highest. 

A.  Of  course  that  is  the  highest  we  have  ever  run  by  steam. 

Q.  Well,  I mean  ordinarily  how  much  water-power  do  3^011 
average  during  the  day,  — those  times  you  say  you  run  by  steam  ? 

A.  In  the  extreme  drouths,  between  the  middle  of  winter,  say 


736 


Testimony  of  W.  H.  McDaniels. 


when  the  snow  will  block  us  up  and  we  have  to  run  a great  deal, 
and  summer  time  when  there  is  not  a great  deal  of  water,  I sup- 
pose it  averages  from  100  to  120  horse-power,  but  it  is  very  hard 
to  say,  sir. 

Q.  You  have  run  one  of  your  engines  during  this  month? 

A.  October  ? 

Q.  Yes,  sir. 

A.  No,  sir ; I don’t  think  it  has  run. 

Q.  Did  you  in  September? 

A.  Yes,  sir  ; fourteen  and  one-half  days. 

Q.  Were  you  running  the  day  we  were  there? 

A.  I don’t  know  the  day  you  were  there,  sir. 

Q.  We  were  there  the  6 th  of  September. 

A.  I cannot  tel’  you  that ; I have  not  the  engineer’s  record. 

Q.  Well,  how  much,  on  the  6th  of  September,  of  power  was 
being  used  ? 

A.  I should  say  probably  — 

Q.  How  much  was  running  ; I ask  you  that  question  ? 

A.  If  the  people  were  generally  running  that  are  now  in  our 
place  ? 

Q.  That  is  just  what  I am  asking  you,  the  extent  at  that  time  ; 
were  the  United  States  Cartridge  Company  running? 

A.  I cannot  tell  you,  sir. 

Q.  Was  the  cotton  mill  running  then? 

A.  No,  sir. 

Q.  Was  Naylor’s  running? 

A.  Probably. 

Q.  The  bunting  company? 

A.  Probably. 

Q.  Now,  is  there  any  provision  in  your  lease  or  letting,  when 
they  shall  cease  to  use  the  water  when  the  quantity  of  water  in 
the  canal  is  below  228  cubic  feet? 

A.  I don’t  think  there  is  at  all ; they  always  go  on,  because  we 
give  them  steam. 

Mr.  Butler.  The  tenant  don’t  raise  or  lower  a gate. 

Mr.  Richardson.  I know  it ; but  if  you  allow  them  246  net 
horse-power,  as  I have  got  you  down  here,  you  have  only,  when 
the  canal  is  down  to  that  plus  68  cubic  feet  or  136  horse-power 
with  which  to  supply  246. 

Witness.  We  have  376  horse-power  of  steam  to  always  supply 
it. 

Q.  Do  you  keep  your  engine  fired  up  all  the  time? 

A.  We  keep  it  fired  up  when  there  is  a necessity.  It  is  my 
business  to  watch  the  river  and  see  when  the  engine  ought  to  be 
got  ready  ; sometimes  we  get  caught. 

Q.  Let  me  see  if  I understand.  Your  calculations  were  that  you 
have  246  horse-power.  In  delivering  that  power  you  deliver  it  at 
great  disadvantage,  don’t  you  ; long  shafting  and  great  distances? 

A.  We  have  very  great  disadvantages,  and  not  a scientific 
arrangement  of  the  shafting  at  the  building,  now. 

Q.  You  carry  it  over  the  whole  river,  don’t  you  ? 

A.  We  carry  it  over  the  canal. 


Testimony  of  W.  H.  McDaniels. 


737 


Q.  How  long  does  your  shafting  run  ? 

A.  Well,  there  is  a main  line,  to  which  there  is  no  objection, 
about  200  feet  long ; but  it  is  turning  round  corners,  et  cetera.* 

Q.  Then  you  say  you  lose  33  per  cent,  in  delivering  the  power 
which  you  sold  at  246,  and  that  must  be  added  to  it ; and  that 
leaves  you  327  horse-power,  more  or  less ; that  gives  you  324 
cubic  feet  a second,  taking  out  what  you  have  to  supply,  96  cubic 
feet  per  second,  which  you  have  let  and  which  you  have  to  supply 
with  your  engine,  if  the  canal  is  down  to  288  cubic  feet? 

A.  If  we  let  that  much  ; yes,  sir. 

Q.  And  the  engine  has  to  supply  it? 

A,  The  deficit  of  water,  or  what  is  left  over  the  capacity  of  the 
river. 

Q.  (By  Mr.  Shattuck.)  How  long  is  it  since  you  have  let  up 
to  204  horse-power?  For  instance,  how  long  is  it  that  you  have 
let  the  whole  71  horse-power  to  the  cotton  mill? 

A.  It  is  about  two  years  or  a year  and  a half  since  that  cotton 
mill  broke  up,  but  other  tenants  have  been  in  the  place  of  it. 

Q.  How  long  has  all  this  amount  of  power  been  let  by  the 
Wamesit  Company? 

A.  All  of  that? 

Q.  Yes,  sir ; this  204. 

A.  Well,  it  was  let  through  that  year. 

Q.  Through  what  year? 

A.  1873,  sir. 

Q.  When  was  the  first  year  it  was  let  as  much  as  that? 

A.  I don’t  know  that  as  much  as  that  was  let. 

Q.  How  many  horse-power  was  let  prior  to  the  time  when  the 
increase  was  made  in  the  cotton  mill? 

A.  I cannot  tell  you  because  I have  come  here  not  knowing 
what  you  required  : I was  sent  for  by  telegraph,  and  I have  no 
data  and  cannot  tell  you. 

Q.  How  long  ago  was  that  addition  made  to  the  power  of  the 
cotton  mill? 

A.  I cannot  tell  that ; they  were  running  for  a couple  of  years, 
but  they  didn’t  commence  with  so  much  power. 

A.  How  much  was  the  smaller  power  which  they  had? 

A.  They  commenced,  I think,  for  several  months,  with  27 
horse-power. 

Q.  Then  it  increased  to  71  ? 

A.  Yes,  sir. 

Q.  Now,  I want  to  know  how  long  it  is  that  they  have  been  run- 
ning with  full  71  horse-power? 

A.  I said  I think  they  ran  through  1873. 

Q.  With  the  whole  of  71? 

A.  Yes,  sir ; with  the  whole  of  it.  They  are  tenants  of  ours, 
or  their  successors  are  now. 

Q.  Prior  to  that  you  think  they  did  not  run  so  much? 

A.  They  did  not  run  so  much,  but  on  the  other  hand  the  United 
States  Bunting  Company  ran  more,  which  is  now  set  down  at 
fifty. 

Q.  How  much  did  they  have  ? 


738 


Testimony  of  W.  H.  McDaniels. 


A.  They  had  over  sixty  at  one  time  and  paid  for  over  sixty. 

Q.  You  say  this  power  has  been  used  substantially  as  much  as 
two«or  three  years ; has  been  let,  I mean? 

A.  Yes,  sir,  with  variations.  I cannot  say  exactly,  but  nearly 
that. 

Q.  (By  Mr.  D.  S.  Richardson.)  How  large  is  your  wheel 
which  furnishes  power  at  the  flume? 

A.  There  is  a 42-inch  Warren  wheel,  and  a 42-inch  Swayne. 

Q.  How  much  is  the  power  of  the  wheel? 

A.  It  would  be  somewhere  between  250  and  300  horse-power 
where  we  sell  the  power. 

Q.  The  last  place  before  you  get  to  Wood’s? 

A.  Yes,  sir. 

Q.  Now,  do  you  put  on  steam  and  stop  the  water,  or  take  all 
the  water  you  can  get  there  ? 

A.  We  don’t  often  stop  it ; but  when  the  Bleachery  and  Wood’s 
cannot  run  we  have  to  put  on  steam. 

Q.  Did  you  see  it  on  September  6th  (it  was  down  below  the  top 
of  the  dam,  September  6th)  — did  you  see  it  during  that  day  when 
there  was  not  much  current  towards  our  mill? 

A.  I cannot  tell  you ; I don’t  know  that  I saw  the  water  that 
day  at  all. 

Q.  (By  Mr.  Butler.)  The  day  we  were  there? 

A.  I don’t  know  that  I was  there  ; I didn’t  see  you  there. 

Q.  (By  Mr.  D.  S.  Richardson.)  I mean  when  the  water  goes 
down  do  }rou  shut  off  the  water  which  jtou  deliver  by  your  wheels 
to  the  Wamesit,  or  do  you  let  them  take  what  they  can  get? 

A.  We  invariably  shut  our  gates  down  and  take  off  one  or  two 
wheels  when  our  engine  is  on,  because  it  is  a great  waste  of  water 
to  run  it  through  the  wheels. 

Q.  How  low  must  it  be  down  before  the  water  is  wasted  ? 

A.  That  would  be  for  an  engineer  to  tell  you.  My  opinion  in 
the  working  of  the  wheel  is  that  this  is  the  way  to  keep  the  head 
up  rather  than  run  it  all  away,  and  we  do  that. 

Q.  Suppose  the  level  of  the  water  was  only  a foot  and  a half 
from  the  bottom  of  the  canal  towards  Wood’s,  would  you  have  any 
power  delivered  by  your  wheels  above  ? 

A.  I should  think  so,  if  it  held  a foot  and  a half. 

Q.  Now,  when  you  find  it  down  to  a foot  and  a half,  do  you 
take  any  measures  in  checking  the  use  of  the  water  in  the  canal, 
or  take  all  you  can  get? 

A.  My  practice  is  to  run,  as  I think,  with  the  greatest  economy  ; 
I certainly  don’t  do  it  for  Mr.  Wood’s  sake,  but  there  is  practi- 
cally a division  in  favor  of  Mr.  Wood  in  the  Bleacheiy,  because 
I always  take  off  some  of  the  wheels  and  shut  down  the  gates. 

Q.  Is  there  practically  any  division  in  the  water,  according  to 
these  grants  and  leases,  so  that  they  can  have  just  the  amount  of 
water  they  are  entitled  to? 

A.  I have  not  heard  of  any  above  us. 

Q.  When  the  water  gets  down  so  that  you  are  entitled  to  68 
cubic  feet  are  you  careful  to  supply  the  other  96  cubic  feet  with 
steam,  or  do  you  take  such  water  as  comes,  and  then  make  up  the 
balance  with  steam  ? 


Testimony  of  W.  H.  McDaniels. 


739 


A.  We  always  run  so  long  as  we  can  with  water. 

Q.  You  take  all  the  water  you  can  get,  so  long  as  you  can,  and 
supplement  it  with  steam  when  you  cannot  get  the  water? 

A.  Yes,  sir. 

Q.  And  you  do  that  without  any  division  in  the  quantity  of 
water  among  the  owners,  or  without  regard  to  what  is  above  or 
below? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  You  assume  that  all  that  has  been  taken 
above  you  belongs  to  you  ? 

A.  I have  always  assumed  that  there  was  more  water  taken 
above  us  than  there  was  any  right  to  be  taken ; I have  a right  to 
assume  that  we  have  a right  to  take  all  we  can  get,  and  we  don’t 
get  our  share. 

Q.  (By  D.  S.  Richardson.)  Do  you  mean  to  say  that  you 
assume  that  you  can  take  all  the  water  you  can  get,  without  giv- 
ing the  Bleachery  or  Wood’s  a drop? 

A.  I take  all  the  water  I can  get,  because  I don’t  get  enough. 

Q.  Do  not  you  know  that  they  have  rights  below  you  ? 

‘A.  I don’t  know  anything  about  that.  My  supposition  is  that 
we  haven’t  used  more  than  our  share. 

Q.  (By  Mr.  Butler.)  At  one  time  a suit  was  brought,  was 
there  not,  against  Mr.  Wood  for  using  more  than  belonged  to 
him,  and  against  Mr.  Faulkner ; and  we  made  an  endeavor  then 
to  have  the  water  divided  which  failed,  did  it  not? 

A.  I believe  so,  sir  ; I don’t  know. 

Q.  And  finding  that  that  was  fruitless,  we  all  concluded  to  let 
it  go.  “ Catch  you  catch  who  can.” 

A.  We  never  were  permitted  to  make  any  observations  of  other 
people’s  flumes  until  the  law-suit  was  brought ; we  were  after- 
wards. 

Q.  (B}^  Mr.  D.  S.  Richardson.)  Have  you  not  refused  to 
have  your  flumes  measured  ? 

A.  I "don’t  know  that  they  have,  sir. 

Q.  You  take  all  the  water  you  can  get  while  it  is  in  the  canal, 
if  you  need  it  for  your  purposes,  without  leaving  any  there  to  go 
below,  or  taking  any  measures  to  have  any  there  to  go  below? 

A.  If  I said  yes  to  that  it  would  not  be  hardly  fair ; it  would 
not  really  be  my  position. 

Q.  Well,  explain  it? 

A.  I have  explained  it;  I simply  refer  to  my  morals  in  the 
matter,  not  to  the  actual  fact.  The  fact  is,  that  our  practice  is  to 
restrain  the  use  of  the  water  on  our  part,  by  the  shutting  off  of 
certain  wheels  and  using  only  a little,  and  that  in  practice  keeps 
the  head  up. 

Q.  Now,  don’t  you  know  that  while  running  above,  the  canals 
have  been  dry  at  Wood’s  and  the  Bleachery? 

A.  I know  while  the  Bleachery  has  been  running  the  Wamesit 
canal  has  been  dry. 

Q.  While  it  was  running  with  water? 

A.  No,  sir  ; never  with  water. 

Q.  You  never  knew  the  time  when  it  was  dry  at  Wood’s  and 
the  Bleachery  ? 


740 


Testimony  of  B.  S.  Hale. 


A . No,  sir,  never ; or  any  approach  to  it. 

Q.  Have  you  not  known  times  when  the  Wamesit  dam  could 
run  with  water,  when  the  Bleachery  and  Wood’s  had  no  water? 

A.  I don’t  think  so  ; never,  sir. 

Q.  Please  to  state  whether  the  flume  of  the  Wamesit  Power 
Company  is  not  a good  deal  lower  than  the  bottom  of  the  canal? 

A.  I cannot  state  it,  but  I don’t  think  it  is. 

Q.  Have  you  ever  been  applied  to  to  clean  out  the  sand  which 
has  collected  on  the  bottom  of  the  canal? 

A.  No,  sir  ; I have  not. 

Q.  You  know  there  is  some  sand  there,  below  your  flume? 

A.  There  is  sand  all  along  the  canal,  but  I never  heard  a word 
of  being  applied  to  to  clean  out  sand  in  our  flumes  until  to-day. 


Bernice  S.  Hale,  sworn . 

Q.  (By  Mr.  Butler.)  Mr.  Hale,  what  is  your  age? 

A.  67  and  going  on  68. 

Q.  Born  at  what  is  known  as  Hale’s  mills? 

A.  Yes,  sir. 

Q.  You  now  live  in  Lawrence? 

A,  Yes,  sir. 

Q.  Were  the  mills  on  River-meadow  brook  ever  a flouring- 
mill  ? 

A.  Yes,  sir. 

Q.  Did  you  carry  it  on  ? 

A.  Yes,  sir. 

Q.  From  what  time  to  what  time  as  a flouring-mill  ? 

A.  Well,  it  was  a flouring-mill  from  1836  or  the  latter  part  of 
1836,  up  to  1845.  Our  flouring  works  were  taken  out  then. 

Q.  Did  you  grind  corn  besides? 

A.  Yes,  sir, 

Q.  How  many  run  of  stone  had  you? 

A.  We  had  two  run  of  stone.  It  was  a corn-mill  before  we 
turned  it  into  a flouring-mill ; we  ground  corn  only. 

Q.  Did  you  bring  the  wheat  from  the  "JjV'est  to  supply  it? 

A.  Yes,  sir. 

Q.  How  many  barrels  of  flour  were  the  largest  amount  you 
turned  out  in  a day? 

A.  We  turned  out  about  50  when  the  weather  was  favorable. 

Q.  Did  you  run  day  and  night? 

A.  Yes,  sir. 

Q.  You  ran  all  the  time? 

A.  Yes,  sir. 

Q.  Did  you  have  any  steam  ? 

A.  No,  sir. 

Q.  The  power  was  supplied  by  River-meadow  brook? 

A.  Yes,  sir. 

Q.  During  the  time  that  it  was  a flouring-mill,  when  you  bad 
the  two  run  of  stone,  how  much  of  the  time  did  you  run  that  mill 


Testimony  of  D.  W.  C.  Farrington. 


741 


day  and  night?  How  much  of  the  time  of  the  year,  by  River- 
meadow  brook? 

A.  All  excepting  about  two  months  in  the  year ; two  months  in 
the  summer  season  we  were  short  of  water. 

Q.  You  were  not  short  except  two  months,  and  two  months  you 
run  part  of  the  time? 

A.  Yes,  sir. 

Q.  And  shut  off  your  machinery,  and  shut  down  according  to 
whether  the  water  ran  up  or  down? 

A.  Yes,  sir. 

Q.  Do  you  know  Mr.  Whipple? 

A.  Yes,  sir. 

Q.  A man  in  active  business  for  a great  many  years,  well 
acquainted  with  water-power,  owning  a great  deal  ? 

A.  Well,  some  quantity  I suppose.  He  had  some  queer 
notions. 

Q.  Did  he  run  mills  in  Portland,  and  here  and  elsewhere? 

A.  Yes,  sir. 

Q.  Do  you  remember  the  year  he  died,  sir? 

A.  No,  sir. 


Cross-examination. 

Q.  (By  Mr.  D.  S.  Richardson.)  You  have  not  worked  upon 
it  since  1845,  have  you? 

A.  Not  since  1848. 

Q.  Well,  the  power  has  diminished  to  some  extent  in  that 
brook? 

A.  I should  judge  it  had.  The  canal  was  taken  away  since  I 
left  it. 

Q.  There  used  to  be  a good  deal  of  quarrelling  with  the  canal 
about  the  water  in  your  day,  was  not  there? 

A.  I don’t  recollect  it. 

Q.  Somehow  or  other  the  canal  used  to  be  serviceable  to  help 
water  there,  didn’t  it? 

A.  Matthews  said  lie  would  give  $5,000  to  have  it  back  again. 

Q.  Now,  has  not  the  Middlesex  canal  been  entirely  dry  where 
it  crosses  this  brook?  • 

A.  Yes,  sir;  since  I have  left. 

Q.  Since  you  left  the  canal  was  entirely  abandoned,  so  that  no 
water  could  come  from  that  source? 

A.  Yes,  sir. 

Q.  And  you  don’t  know  the  particular  power  now,  sir,  I 
suppose  ? 

A.  No,  sir. 

D.  W.  C.  Farrington,  sworn. 

Q.  (By  Mr.  Butler.)  Have  you  been  chief  manager  of  the 
Wamesit  Power  Company,  and  for  how  many  years? 

A.  I have,  in  the  neighborhood  of  ten  years  ; about  eight  or  ten, 
it  may  not  have  been  ten. 


742 


Testimony  of  D.  W.  C.  Farrington. 


Q.  The  canal  was  widened  at  one  time  and  deepened,  was  it 
not? 

A.  It  was. 

Q.  New  and  larger  head-gates  put  in,  and  the  dam  put  in 
repair? 

A.  Yes,  sir. 

Q.  Do  you  remember  what  year  that  was  ? 

A.  The  canal  was  enlarged  probably  in  1872 ; the  head-gates 
later;  I should  think  it  was  in  1874,  if  I recollect  right. 

Q.  Prior  to  that  time  was  there  any  trouble  in  the  canal's 
carding  water? 

A.  There  was. 

Q.  Whether  with  the  water  running  over  the  flash-boards  of  the 
dam  the  canal  would  or  would  not  bring  down  water  to  the  Wame- 
sit  Power  Co.,  below  the  Belvidere  mill? 

A.  It  would  not ; the  water  did  not  come  there. 

Q.  It  did  so,  did  it  not? 

A.  Yes,  sir. 

Q.  It  didn't  come  down  ? 

A.  No,  sir. 

Q.  In  consequence  of  the  failure  to  get  water  at  that  time,  was 
there  any  engine  put  in? 

A.  There  was. 

Q.  After  that,  'whether  the  Wamesit  Power  Co.  widened  and 
deepened  the  canal? 

A.  They  did. 

Q.  Substantial!}'  from  the  dam  down? 

A.  Yes,  sir. 

Q.  Who  was  the  engineer  employed  to  make  the  surveys  for 
that  purpose  ? 

A.  Mr.  Herschell. 

Q.  At  the  same  time  that  the  repairs  of  the  dam  were  going  on, 
were  suits  brought  against  some  of  the  water  takers,  to  test  the 
rights  and  to  try  and  get  a division  ? 

A.  There  were. 

Q.  And  some  changes  were  made  in  the  wheels  of  the  Chase 
Co.,  and  of  the  Faulkner,  were  there  not? 

A.  There  were  changes. 

Q.  And  Mr.  Wood  at  that  time  changed  his  40  horse-power 
wheel  to  a 21  ? 

A.  He  did,  substantially. 

Mr.  D.  S.  Richardson.  You  don't  mean  to  21,  but  you  mean 
to  25  horse-power? 

Mr.  Butler.  Well,  substantially.  That  is,  he  made  a change 
there  from  a 40  horse-power  wheel  to  a 25  horse-power  wheel. 

Q.  How  much  of  your  time  have  you  spent  there  for  the  last  four 
or  five  years  ? 

A.  All  my  time. 

Q.  Had  occasion  to  know  about  it ; how  much  was  going  and 
how  the  water  stood,  and  how  it  was  running? 

A.  Yes,  sir. 

Q.  Give  us  your  opinion,  in  the  first  place,  whether  there  has 


Testimony  of  D.  W.  C.  Farrington. 


743 


not  been  a larger  amount  of  water-power  used  by  those  above  the 
Wamesit  wheels  than  their  deeds  eall  for?  You  know  what  their 
deeds  call  for? 

Mr.  Storey.  We  object. 

Mr.  Butler.  What  is  the  objection  ? 

Mr.  Storey.  I don’t  see  that  it  is  at  all  competent  to  show. 

Mr.  Butler.  Why  not? 

Mr.  Storey.  What  the  use  of  the  water  was. 

Mr.  Shattuck.  If  he  has  measured  it  or  has  an  opinion  in  re- 
gard to  it? 

Mr.  Butler.  Well,  pardon  me.  He  has  the  means  of  know- 
ing. 

Q.  You  know  what  the  deeds  called  for? 

A.  Yes,  sir. 

Q.  Very  well.  Whether  more  was  used  than  the  deeds  called 


for? 

A.  It  was  always  my  belief  that  there  was  more  used. 

Mr.  Shattuck.  It  is  wholly  incompetent. 

Q.  (By  Mr.  Butler.)  How  much  in  excess  of  the  220  feet, 
which  they  called  for,  do  you  think  ? 

A.  I should  think  at  times  they  would  use  50  feet  more. 

Q.  Now,  sir,  did  you  ever  know  anybody  on  that  dam  above 
the  Wamesit  Power  Company  shut  down  their  gates  so  as  to  take 
only  a small  part  of  the  water,  an  aliquot  part  of  the  water,  when 
the  water  was  below  the  proper  height? 

A.  No,  sir  ; never  did. 

Q.  Now  take  the  Sterling  mill ; whether  they,  situated  on  this 
bend,  were  able  to  draw  water  lower  than  anybody  else  ? 

A.  They  could. 

Mr.  Shattuck.  What  is  the  object  of  this  ? 

Mr.  Butler.  The  object  is  to  show  that  you  would  not  be 
damaged  if  we  should  take  all  the  water  but  the  last  drop. 

Q.  Now,  sir,  whether,  in  order  to  equalize  the  flow  in  behalf  of 
the  Wamesit  Power  Company,  you  did  not  afterwards  deepen  and 
open  the  canal  between  the  Sterling  mill  and  the  Wamesit  wheels? 

A.  I did  do  so. 

Mr.  Shattuck.  The  precise  statement  is  not  that  we  use  more 
than  we  are  entitled  to  when  there  are  288  feet,  but  that  our  flume 
is  so  situated  that  the  water  may  go  into  it  when  it  is  not  going 
into  the  other  mills. 

Mr.  Butler.  I understand. 

Q.  Whether,  from  your  surveys  on  the  canal,  the  lowest  point 
of  taking  water  is  the  Sterling  mill  ? 

A.  It  was  the  lowest,  and  I don’t  know  but  what  it  is  now. 

Mr.  D.  S.  Richardson.  Do  you  mean  that  the  last  drop  would 
run  there? 

Mr.  Butler.  Yes,  sir. 

Q.  Would  not  the  water  run  from  Lawrence-street  bridge? 
Suppose  we  got  the  last  drop,  would  not  the  water  run  back  into 
the  Sterling  mill  flume? 

A.  A short  distance  above  the  bridge  only. 

Q.  Now,  sir,  I desire  to  ask  you  how  much  you  have  had  occa- 


744 


Testimony  of  D.  W.  C.  Farrington. 


sion  to  observe  the  water  in  the  river ; whether  it  was  running 
over  the  dam  or  not? 

A.  From  time  to  time  I have  done  so  frequently. 

Q.  How  much  of  the  time,  in  your  judgment,  has  the  water  run 
over  that  dam,  year  by  year,  take  one  year  with  another,  some 
part  of  the  day? 

A.  For  how  far  back,  sir? 

Q.  Say,  go  back  to  ever  since  you  have  been  there,  averaging 
the  lime.  Mr.  Faulkner  went  back  to  1864  ; you  can  only  go  back 
to  1866.  Say  for  ten  years. 

A.  Well,  sir,  I should  say,  that,  taking  the  whole  time,  for  nearly 
300  days  in  the  year  water  had  run  over. 

Q . (By  Mr.  Shattuck.)  Sometime  in  the  day? 

A.  Sometime  in  the  day. 

Q.  (By  Mr.  Butler.)  How  large  a proportion  of  that  time 
would  it  run  over  all  day  during  that  period  ? 

A.  Well,  I can  hardly  say,  but  between  two  and  three  hundred 
days  — somewhere  between  tow  and  three  hundred  days. 

Q.  Over  two  hundred,  then,  you  think? 

A.  Oh,  yes.  ^ 

Q.  Whether  you  are,  in  behalf  of  the  Wamesit  Power  Com- 
pany, prepared  to  let  or  guarantee  power  to  150  or  200  horse- 
power, or  more? 

A.  I am,  at  $75  a horse-power. 

Mr.  Storey.  We  object. 

Q.  (By  Mr.  Butler.)  How  much  per  horse-power? 

Mr.  Storey.  We  object.  That  is  not  competent. 

Commissioner  Russell.  Is  the  object  to  show  that  these  parties 
can  supply  themselves  from  this  company  with  horse-power? 

Mr.  Butler.  Yes,  sir. 

Commissioner  Russell.  That  is  a question  which  has  not  been 
raised.  Do  you  object  to  it  on  that  ground? 

Mr.  Storey.  Yes,  sir.  If  they  want  extra  horse-power  they 
can  have  it  at  $75  from  this  company. 

Mr.  Shattuck.  Was  that  ever  recognized  as  a proper  way  to 
treat  the  value  of  anything,  to  have  a man  come  and  say  this  ? 

Commissioner  Russell.  I think  not. 

Mr.  D.  S.  Richardson.  I think  there  are  cases  where  it  has 
been  ruled  out,  where  the  value  of  real  estate  has  been  offered  to 
be  proved  by  an  offer  which  had  been  made  to  sell  it. 

Commissioner  Russell.  I suppose  you  can  show  at  what  rate 
horse-power  can  be  furnished  general^,  but  not  that  any  one  par- 
ticular party  is  willing  to  furnish  it  at  that  price. 

Mr.  Butler.  Contemporaneous  sales,  I take  it,  we  can  show. 

Commissioner  Russell.  I think  the  value  of  horse-power  at 
Lowell  can  be  shown. 

Mr.  Butler.  I will  take  it  both  ways. 

Q.  What  has  been  the  price  of  horse-power  at  the  Wamesit 
dam  for  the  last  ten  years? 

A.  Seventy-five  dollars. 

Q.  Ever  any  more  charged? 

A.  No,  sir. 


Testimony  of  D.  W.  C.  Farrington. 


745 


Q.  If  guaranteed, 'any  less? 

A.  No,  sir. 

Q.  That  with  the  tenant  paying  a price  for  the  room  to  use  it, 
or  a room  being  furnished  him  for  that? 

A.  He  always  pays  for  the  room  in  addition. 

Q.  About  how  is  that  reckoned?  How  do  you  reckon  your 
room  rent?  If  a man  wants  to  hire  a shop  and  wants  five  horse- 
power, how  do  you  get  at  the  room  ? 

A.  Well,  it  depends  somewhat  upon  the  quality  of  the  building, 
but  somewhere  in  the  neighborhood  of  eight  cents  a foot. 

Q.  Eight  cents  a square  foot  for  surface  and  shop  room  to 
use  ? 

A.  Yes,  sir ; for  rent. 

Q.  (By  Commissioner  Russell.)  Suppose  you  let  two  squares, 
it  would  be  sixteen  cents  for  your  land,  would  not  it? 

A.  Yes,  sir. 

Q.  (By  Mr.  Shattuck.)  Most  of  the  buildings,  how  high  are 
they? 

A.  They  run  from  ten  to  twelve  feet. 

Q.  (By  Mr.  Butler.)  If  he  had  one  floor,  it  would  be  then 
eight  cents  for  that  floor?  If  he  had  the  next  floor,  and  it  was 
equally  good,  it  would  be  eight  cents  for  that  floor,  and  so  on? 

A.  Yes,  sir. 

Q.  Now,  there  are  a very  considerable  number  of  mechanics’ 
shops  and  mills  running  in  the  city  of  Lowell,  are  there  not,  fur- 
nished wholly  by  steam-power? 

A.  There  are. 

Q.  What  is  the  price  for  steam-power  down  in  the  city? 

A.  From  one  hundred  to  one  hundred  and  twenty-five  dollars. 

Q.  Independent  of  the  room  ? 

A.  Yes,  sir. 

Q.  And  that  irrespective  of  the  amount  of  power  required? 

A.  Yes,  sir. 

Q.  The  more  power  the  cheaper,  I suppose,  and  the  less  power 
the  dearer? 

A.  Yes,  sir. 

Q.  What  was  the  price  of  coal  in  the  city  of  Lowell,  up  to  this 
year,  for  the  last  five  years  ? 

A.  In  round  numbers,  between  seven  and  eight  dollars  ; it 
would  not  vary  a great  deal  from  that. 

Q.  You  have  run  engines  and  steam-boilers  here  at  the  Wame- 
sit  dam.  Will  you  tell  me  what  is  your  estimate  of  the  cost  of  a 
horse-power,  or  steam,  independent  of  the  plant? 

A.  Well,  sir,  I should  say  in  the  neighborhood  of  fifty  dollars 
on  an  average. 

Q.  And  the  plant ; and  then  the  difference  between  fifty  and 
seventy-five  dollars  or  one  hundred  dollars,  as  the  case  might  be, 
you  look  for  your  profit  and  interest  on  the  plant  and  depreciation, 
don’t  you  ? 

A.  Yes,  sir. 

Q.  Is  there  in  Lowell  steady  power  to  be  acquired  to  the  amount 
of  a hundred  or  two  hundred  horse  in  amounts  not  less  than  fifteen 
horse  ? 


716 


Testimony  of  D.  W.  C.  Farrington. 


A.  I think  there  is  not ; I don’t  know  of  any  such  place. 

Q.  Is  there  any  difficulty  in  its  being  found  at  the  Wamesit 
dam,  if  anybody  applied? 

Mr.  Shattuck.  I object  to  that. 

Mr.  D.  S.  Richardson.  I object  to  that,  because  it  looks  in  the 
nature  of  an  advertisement. 

Mr.  Butler.  I have  no  hesitation  about  this.  I want  to  show, 
in  the  opinion  of  this  gentleman,  as  a practical  man,  for  the  Wam- 
esit Power  Company,  he  would  be  glad  to  build  a building,  and  put 
it  right  there,  and  let  it  right  under  these  gentlemen’s  noses  for 
seventy-five  dollars  a horse-power ; and  this  company  which  he 
represents  get  their  living  in  that  way. 

Mr.  Shattuck.  I understand  the  commissioners  rule  that  out. 

Commissioner  Russell.  In  regard  to  that  particular  company ; 
but  that  the  price  is  such,  or  that  the  condition  of  things  in  Lowell 
is  such  that  power  can  be  hired  there,  we  do  not  rule  out. 

Mr.  Shattuck.  Of  course  we  do  not  object  to  showing  what 
the  price  of  power  is. 

Commissioner  Russell  I suppose  it  is  open  to  the  counsel  to 
argue  that  it  would  not  be  necessary  for  each  man  to  replace  the 
power  in  his  own  establishment  by  a steam-engine  of  his  own,  but 
that  at  the  place  where  this  deficiency  of  power  existed  there  would 
be,  in  the  ordinary  course  of  things,  steam-power  accessible,  which 
would  be  furnished  at  a price.  The  practicability  of  getting  it 
to  his  mill  is  another  question. 

Mr.  D.  S.  Richardson.  Also,  if  he  puts  in  the  evidence  that 
there  is  no  possible  power  run  it  would  give  a good  margin  for 
profit,  because  when  the  bargain  instead  of  being  seventy-five 
dollars,  it  might  be  one  hundred  dollars  or  more. 

Commissioner  Russell.  I don’t  think  it  is  admissible  to  show 
that  the  Wamesit  Power  Company  is  ready  to  furnish  it  at  one 
price  or  at  another. 

Q.  (By  Mr.  Butler.)  To  any  and  every  body?  I want  to 
know. 

Mr.  Shattuck.  That  would  not  be  competent. 

Commissioner  Russell.  It  is  not  like  the  case  of  a mill  remote 
from  all  civilization  where  if  you  take  away  five  horse-power, 
there  could  be  no  possibility  of  replacing  it  without  putting  in  a 
five  horse-power  engine. 

Mr.  Shattuck.  I have  no  doubt  they  can  show  the  amount  of 
power  there,  and  the  price  of  power  there,  but  what  this  particular 
company  is  willing  to  do,  I don’t  think  that  is  competent. 

Commissioner  Russell.  I don’t  think  that  is  competent. 

Mr.  Butler.  I ask,  whether  where  these  mills  are  situated, 
that  power,  from  one  hundred  and  fifty  to  two  hundred  horse- 
power, could  be  guaranteed  at  seventy-five  or  one  hundred  dollars 
a horse-power,  steam  or  in  any  way. 

Mr.  Shattuck.  That  is  not  competent. 

Mr.  Butler.  Delivered  in  a competent  building? 

Mr.  Shattuck.  That  is  not  competent. 

Commissioner  Russell.  Delivered  at  the  mills  of  these  parties, 
I take  it,  should  be  the  question. 


Testimony  of  D.  W.  C.  Farrington. 


747 


Q.  (By  Mr.  Butler.)  Now,  then,  assuming  that  each  of  these 
mills  would  require  an  average  of  twenty  horse-power  additional, 
what  do  you  believe,  from  your  knowledge  of  things  at  that  place, 
that  power  can  be  furnished  to  each  mill  for?  Now,  Mr.  Faulkner 
wants  20  more  than  he  has  got ; Mr.  Chase  wants  20  more  than  he 
has  got ; Mr.  Sterling  wants  20  more  than  he  has  got,  and  so  on  : 
what  do  you  believe  now,  with  a fair  cost,  can  twenty  horse-power 
be  furnished  for? 

Mr.  D.  S.  Richardson.  It  is  not  a question  of  the  cost. 

Commissioner  Russell.  At  what  price  you  mean? 

Mr.  Butler.  At  which  price  ? And  the  price  is  no  fair  cost ; 
they  are  not  to  make  a profit  on  furnishing  it.  It  is  what  it  costs 
them  to  replace. 

Commissioner  Russell.  If  they  have  got  to  buy  it,  the  price 
that  they  have  got  to  pay  is  the  test,  is  it  not? 

Mr.  Butler.  Yes,  sir.  What  a man  has  got  to  pay  to  furnish 
himself  with  horse-power,  whether  it  is  $50,  $75,  or  any  other 
sum. 

Mr.  D.  S.  Richardson.  I object  to  that  because  it  includes  the 
price  of  the  contract,  which  involves  the  opinion  of  another  man, 
and  he  cannot  know  it. 

Commissioner  Russell.  We  think,  if  it  can  be  shown  that 
steam-power  is  a thing  purchasable  in  the  market  at  this  place,  it 
is  competent  to  show  at  what  price  it  can  be  purchased,  delivered 
at  each  of  these  mills  in  the  amounts  which  each  of  them  require. 
That  is  your  question,  as  I understand  it? 

Mr.  Butler.  Not  quite,  sir.  What  a man  purchases  of  steam 
power : the  man  that  sells  it  proposes  to  make  a profit  upon  it. 

Commissioner  Russell.  Certainly. 

Mr.  Butler.  Ver}r  well.  Now,  when  a man  supplies  himself 
with  it,  the  amount  that  it  costs  him  to  do  it,  without  the  profit, 
is  the  true  figure  to  take. 

Commissioner  Russell.  I supposed  3tou  would  get  a much  less 
favorable  answer  to  that  enquiry,  and  it  would  be  so  in  a condition 
of  things  which  I could  imagine  ; but  I think  that  it  is  competent  for 
you  to  show  for  what  a man  can  supply  himself  with  that  steam- 
power. 

Mr.  Butler.  I will  put  it  both  ways,  because  I have  my  own 
belief  about  this  immense  plan  for  steam-power. 

Commissioner  Russell.  Your  proposition  is  what  each  man 
can  supply  himself  with  steam-power  for? 

Mr.  Butler.  Yes,  sir.  It  is  not  a question  of  being  for  sale  in 
the  market. 

Mr.  D.  S.  Richardson.  Then  we  cannot  get  it. 

Commissioner  Russell.  The  only  other  way  would  be  the  ex- 
pense of  building  the  works  and  running  them.  You  must  either 
buy  it  or  make  it. 

Mr.  Butler.  Mr.  Faulkner,  when  he  comes  to  operate  for  him- 
self and  not  to  get  money  out  of  the  city,  buys  a second-hand  en- 
gine and  puts  it  in  for  $400,  when  he  wants  to  operate  for  himself ; 
when  he  wants  to  get  up  steam  he  requires  then  a $10,000  or  $15,000 
engine.  Now  I have  got  a practical  man  here,  — I assume  practi- 


748 


Testimony  of  D.  W.  C.  Farrington. 


cal,  — and  I want  to  ask  him  what  steam-power  can  be  furnished 
in  those  mills  for  precisely  as  Mr.  Frizell,  who  hasn’t  an}Tthing  to 
do  witli  steam-power  in  the  world,  but  having  experience  as  an  ex- 
pert, is  asked  what  it  will  cost  in  wool  waste  and  the  engines  and 
cotton  waste. 

Mr.  Shattuck.  Well,  nobody  objects  to  that. 

Commissioner  Russell.  The  question  you  now  put  is  not  ob- 
jected to. 

Mr.  Butler.  Well,  then  I will  go  right  on. 

Q.  What  can  it  be  furnished  for,  sir? 

Mr.  Shattuck.  Do  you  mean  by  that  what  it  will  cost,  what 
the  machinery  to  put  it  in  will  cost  ? 

Mr.  Butler.  I mean  what  it  can  be  furnished  in  the  Sterling 
mill  for,  knowing  its  situation,  twenty-five  horse-power  per  }’ear. 

Mr.  Shattuck.  Do  you  mean  what  somebody  else  will  furnish 
it  to  them  for  ? 

Commissioner  Russell.  The  witness,  in  answering  that  ques- 
tion, must  inform  us  whether  it  is  the  price  at  which  it  can  be  pur- 
chased, and  what  it  would  cost  the  party  to  supply  it  himself  there, 
because  the  two  questions  are  put  and  one  is  objected  to  and  one 
is  not. 

Witness.  My  opinion  is  that  if  the  proprietors  of  the  Sterling 
mill  should  undertake  to  supply  the  twenty  horse-power  to  their 
establishment  it  would  cost  them  $1,500  a year  to  do  it,  and  that 
is  $75  a horse-power. 

Q.  (By  Mr.  Butler.)  By  steam? 

A.  B}t  steam. 

Mr.  Shattuck.  If  he  means  that  he  has  made  a calculation  of 
what  the  engines,  etc.,  would  cost,  why  that  I suppose  is  compe- 
tent. 

Mr.  Butler.  Now  ask  him  all  about  it ; he  will  tell  you  every- 
thing. 


Cross-examination. 

Q.  (By  Mr.  Shattuck.)  When  you  say  that  the  parties  were 
taking  more  than  their  220  feet  of  water  a second,  to  what  time  do 
you  refer? 

A.  I refer  to  the  time  whenever  the  water  — 

Q.  During  the  last  two  years  do  yon  mean? 

A.  Oh,  at  various  times  during  my  experience  there. 

Q.  Do  you  mean  at  any  time  during  the  last  two  or  three  years? 

A.  Yes,  sir. 

Q.  Has  the  Belvidere  mill  been  running  any  of  that  time? 

A.  Yes,  sir. 

Q.  How  long  is  it  since  that  stopped? 

A.  I cannot  tell  }*ou  exactty ; it  is  over  a }rear  or  a year  and  a 
half,  I should  think. 

Q.  About  a year  and  a half? 

A.  Somewhere  along  there. 

Q.  Do  you  mean  since  they  stopped  that  they  have  been  run- 
ning 220  feet? 


Testimony  of  D.  W.  C.  Farrington. 


749 


A.  No,  sir. 

Q.  What  did  you  charge  to  the  Bleachery  when  you  say  they 
were  drawing  fifty  feet  per  second  more  than  they  were  entitled  to  ? 

A.  I didn’t  charge  it  to  any  particular  corporation. 

Q.  Do  you  mean  to  say  that  you  made  up  the  fifty  feet  without 
going  into  any  particular  estimate  ? 

A.  I can  tell  you  how  long  they  were  drawing  that. 

Q.  Just  tell  us? 

A.  When  the  water  is  at  the  top  of  the  Concord  dam  I under- 
stand that  the  Wamesit  Power  Company  is  entitled  to  68.81  ; in 
other  words,  that  68  cubic  feet  belong  to  us.  I have  seen  the  dam 
when  that  state  of  things  existed,  when  the  water  was  at  the  top 
of  the  Concord  dam,  when  I knew  there  was  not  that  amount  of 
water  coming  down. 

Q.  Did  you  ever  find  out  whether  there  was  not  288  feet  run- 
ning? 

A.  No,  sir:  I never  did.  I assumed  that. 

Q.  As  I understand,  your  flume  is  above  the  Bleachery? 

A.  It  is. 

Q.  And  above  Wood’s? 

A.  It  is. 

Q.  So  that  there  was  not  68  feet  coming  down  there? 

A.  No,  sir  ; there  was  not. 

Q.  So  that  they  were  using  100  feet  more? 

A.  I have  no  doubt  of  it,  at  times. 

Q.  Since  the  Belvidere  mill  stopped  ? 

A.  No,  sir  ; before  that. 

Q.  Not  then  this  year? 

A.  No,  sir  ; not  this  year. 

Q.  Have  not  they  tested  all  those  wheels  and  ascertained  that 
they  cannot  draw  more  than  their  share?  You  have  had  a law- 
suit with  them  all? 

A.  No,  sir ; we  have  had  a law-suit  with  two  of  them. 

Q.  You  have  examined  the  other  wheels  in  the  flumes? 

A.  Not  personally. 

Q.  Well,  you  employed  somebody  to  do  so? 

A.  Yes,  sir. 

+Q.  And  you  found  that  they  were  not  fitted  to  draw  more  than 
their  proportion  ? 

A.  That  was  after  some  changes  were  made  in  the  wheels. 

Q.  What  was  after  some  changes  were  made  in  the  wheels  ? 

A.  This  examination. 

Q.  How  long  ago  was  that  examination  made  ? 

A.  I cannot  tell  you  ; several  years  ago. 

Q.  Have  you  noticed  they  have  drawn  more  than  they  were  en- 
titled to  above  you  ? 

A.  I have  not  noticed  it  so  much  during  the  last  two  or  three 
years. 

Q.  Has  there  been  a time,  since  the  testimony  was  put  in  — 
which  goes  back  three  years  — when  they  have  been  drawing  more 
than  their  share  ? 

A.  As  I said,  I have  not  given  so  much  attention  to  it  during 
the  last  three  years  as  I have  before  that. 


750 


Testimony  of  D.  W.  C.  Farrington. 


Q.  Would  you  give  an  opinion  when,  during  the  last  three 
years,  those  mills  have  drawn  more  than  they  ought  to  have 
taken  ? 

A.  I have  not  paid  so  much  attention  to  it  during  the  last  three 
years. 

Q.  Then  all  your  testimony  relates  to  a time  prior  to  these  last 
three  years  ? 

A.  Not  all  of  it. 

Q.  Would  }Tou  give  an  opinion  during  these  last  three  3'ears 
when  those  companies  have  drawn  more  than  they  were  entitled  to  ? 

A.  I believe  they  have. 

Q.  When? 

A . When  the  water  has  been  below,  in  dry  seasons  when  it  is 
below  the  dam. 

Q.  Your  evidence  furnished  us  here  was  at  a time  when  there 
were  288  feet  running,  and  you  say  }’ou  did  not  get  }rour  68  feet  ? 

A.  That  was  upon  what  I based  my  statement. 

Q.  And  that  you  have  not  observed  during  the  last  three  }^ears  ? 

A.  No,  sir  ; I have  not. 

Q.  How  much  does  the  Bleachery  take  regularly? 

A.  They  have  no  regular  amount. 

Q . Does  the  quantity  of  water  they  regularlytake  amount  to 
an}Tthing  material  as  power? 

A.  Oh,  yes. 

Q.  How  much? 

A.  Oh,  at  times  they  draw  very  heavily. 

Q.  I mean  regularly? 

A.  They  do  not  take  any  water  regularly ; that  term  does  not 
apply  to  their  taking  water. 

Q.  To  what  extent  do  they  take  it? 

A.  It  is  very  uneven  ; it  is  very  spasmodic. 

Q.  Do  you  mean  some  weeks  they  will  take  very  little,  and 
some  weeks  a great  deal  ? 

A.  Yes,  sir. 

Q.  Have  they  any  facilities  for  taking  more  than  they  are  en- 
titled to? 

A.  Yes,  sir  ; I believe  so. 

Q.  Have  not  you  had  a law-suit  with  them  and  an  examination 
of  their  flumes  ? 

A.  No,  sir. 

Q.  Have  }*ou  had  their  flumes  examined  ? 

A.  Not  that  I am  aware  of. 

Q.  With  that  view  ? 

A.  They  have  no  flume  ; the}7  don’t  use  it  for  power. 

Q.  Do  you  know  the  size  of  the  opening  through  which  the 
water  goes  ? 

A.  No,  sir. 

Q.  Is  it  the  case  that  sometimes  for  a week  they  take  no  water 
or  water  to  any  substantial  amount? 

A.  I don’t  know. 

Q.  Then  as  to  Mr.  Wood : is  his  running  regularly  or  not? 

A.  His  running? 


Testimony  of  D.  W.  C.  Farrington. 


751 


Q.  Yes. 

A.  In  what  way  regular? 

Q.  I mean  to  say,  does  he  run  a little  while  in  the  morning  and 
then  stop,  and  run  again  in  the  afternoon  until  night,  when  he 
stops  ? 

A.  I don’t  know.  I know  at  times  he  has  run  every  night. 

Q.  Now,  as  to  steam-power:  you  use  yourself  as  auxiliary? 

A.  We  do. 

Q.  You  start  an  engine  of  350  horse-power? 

A.  We  do. 

Q.  Sometimes  you  do  that  to  furnish  20  horse-power?  You 
heard  the  testimony  of  Mr.  McDaniels  ? 

A.  I heard  a part  of  it.  We  do  it  whenever  we  think  it  is 
necessary. 

Q.  How  much  fuel  does  it  take  to  start  your  engine? 

A.  Simply  to  start  it? 

Q.  Yes. 

A.  I don’t  know  that  I can  tell  you. 

Q.  Not  exactly,  but  substantially.  Don’t  you  have  to  put  in 
nearly  as  much  coal  and  fuel  to  start  a fire  with  for  20  horse-power 
as  if  you  were  going  to  have  150  or  200  horse-power? 

A.  Not  quite  so  large  a difference  as  that. 

Q.  Can  you  tell  in  the  morning  whether  you  will  be  required  to 
use  it  all  day  or  not? 

A.  No,  sir. 

Q.  You  cannot? 

A.  No,  sir. 

Q.  Then  if  you  were  to  make  up  a deficiency  of  20  horse-power, 
from  20  horse-power  down  to  one,  whatever  the  exigencies  of  the 
stream  might  require  you  to  furnish,  would  not  it  be  a fair  way  to 
estimate  the  cost  of  it  at  about  the  highest  amount  you  have  to 
furnish  us  as  a regular  thing  ? 

A.  That  would  be  a safe  thing  to  do. 

Q.  It  would  be  safe,  and  would  not  }’Ou  think  it  to  be  fair  ? 

A.  It  would  not  be  a fair  estimate  of  its  exact  cost. 

Q.  Can  you  get  anything  fairer  than  that? 

A.  Yes. 

Q.  What  would  be  fairer? 

A.  An  average  between  zero  and  twenty. 

Q.  You  think  that  would  be  fairer? 

A.  Yes,  sir  ; I should  think  so. 

Q.  You  would  require  an  engine  of  at  least  50  horse-power, 
would  not  you  ? 

A.  To  furnish  20  ? 

Q.  Yes,  sir  ; to  furnish  it  comfortably  where  it  is  auxiliary? 

A.  No,  sir. 

Q.  IIow  large  an  engine? 

A.  I should  put  in,  if  I wanted  to  furnish  20  horse-power  as  a 
maximum,  as  auxiliary,  perhaps  an  engine  of  from  35  to  40  horse- 
power as  a safet}’'. 

Q.  Could  you  start  that  up  any  day  practically  without  using 


752 


Testimony  of  D.  W.  C.  Farrington. 


about  as  much  coal  as  it  would  be  necessary  to  use  to  furnish  20 
horse-power? 

A.  Yes,  sir. 

Q.  How  do  you  fix  that ? How  would  you  measure  it?  How 
would  you  know  in  the  morning  how  much  power  you  would  have 
to  use  ? How  would  you  regulate  your  coal  practically  ? 

A.  Well,  sir,  practically,  all  these  mills  are  using  steam  every 
day  in  the  year. 

Q.  All  of  them? 

A.  Yes,  sir ; I think  so. 

Q.  You  don’t  mean  steam-power? 

A.  I mean  steam.  For  instance,  if  I was  in  my  own  mill,  I 
have  a large  boiler  for  the  purpose  of  furnishing  steam  for  my  dye- 
works  ; if  I was  going  to  put  in  an  engine  to  furnish  myself  with 
20  horse-power  auxiliary,  I should  put  in  another  boiler,  perhaps  a 
smaller  boiler  possibly  (well,  no  matter  about  the  size)  ; I could 
get  up  steam  and  start  up  20  horse-power  cheaper  than  though  I 
had  no  steam  on  hand,  because  I could  make  use  of  the  steam  that 
I had  on  hand  for  other  purposes  to  start  my  engine.  Do  you 
see  my  point? 

Q.  Because  you  would  have  the  boilers,  both  of  them,  connected 
with  the  engine  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Storey.)  The  surplus  steam  which  you  did  not 
need  for  }rour  dyeing  you  would  turn  into  the  engine  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  You  have  got  to  have  it  there  all  the 
time? 

A.  It  could  be  done  much  cheaper  than  though  I had  no  steam 
for  other  purposes. 

Q.  (Bj^  Mr.  Shattuck.)  Take  the  Sterling  mill ; if  they 
wanted  to  have  an  engine  for  power  there,  would  not  it  be  necessary 
to  put  up  a new  building? 

A.  It  depends  whether  they  have  any  spare  room  or  not. 

Q.  Well,  supposing  they  have  no  spare  room? 

A.  Of  course  they  would. 

Q.  Did  3tou  estimate  that  in  the  cost  ? 

A.  I did. 

Q.  Putting  up  a new  building  ? 

A.  That  would  be  but  very  little  difficulty.  It  would  cost  very 
little,  any  addition  to  any  of  those  mills,  to  put  in  a small  engine. 

\_ Adjourned  till  Friday  at  9.30  A.  M.~\ 


Testimony  of  B.  W.  C.  Farrington. 


753 


Boston,  Friday,  October  13th,  1876. 

The  commissioners  met  at  9.30  o’clock. 

B.  W.  C.  Farrington,  recalled . 

Cross-examination  resumed . 

Q.  (By  Mr.  Shattuck.)  What  is  the  lowest  price  that  you 
ever  knew  steam-power  to  be  sold  for  in  Lowell  ? 

A.  $100  a horse-power,  and  from  that  up  to  $125. 

Q.  Have  you  ever  heard  of  its  being  sold  as  high  as  $150  in 
Lowell  ? 

A.  No,  sir. 

Q.  Where  there  is  a mere  margin  to  be  furnished  of  steam- 
power,  as  auxiliary  to  water-power,  the  elements  of  uncertainty 
as  to  the  time  when  it  will  be  wanted,  the  quantity  that  will  be 
wanted,  and  the  necessity  of  having  a larger  engine,  make  it 
rather  more  expensive  than  it  would  be  when  it  is  furnished  alone, 
do  they  not  ? 

A.  No,  sir,  I think  not ; I think  very  little  would  be  lost.  As 
an  instance,  I will  say  that  if  a man  is  running  fifty  or  sixty  horse- 
power very  little  would  be  lost  by  running  a steam-engine  of 
twenty  horse-power  continually,  if  anything  — very  little. 

Q.  I don’t  understand  what  you  mean. 

A.  Well,  if  a man  required  sixty  horse-power  to  run  his  ma- 
chinery, and  he  had  forty  of  it  constant,  and  at  times  required 
twenty  auxiliary,  it  would  cost  veiy  little  more  to  run  that  twenty 
constantly  than  what  it  would  cost  not  to  run  it.  The  expense 
would  be  but  very  little  more. 

Q.  That  is,  it  would  cost  very  little  more  to  run  it  constantly 
than  it  would  to  have  it  ready  in  emergencies  — to  run  every  now 
and  then  ? 

A.  It  would  not  cost  so  much,  sir.  It  depends  somewhat  upon 
how  often  he  had  to  start  it  up. 

Q.  So  that  if  a man  was  using  seventy  horse-power  and  had 
fifty  of  it  constant  (what  we  call  a constant  minimum  here),  and 
then  had  to  provide  for  a margin  varying  from  twenty  down,  you 
would  say  that  the  cost  of  it  would  be  represented  probably  by 
the  cost  of  about  twenty  horse-power,  would  you  not? 

A.  You  mean  the  cost  of  the  additional? 

Q.  You  would  say  it  would  be  as  cheap  to  run  the  twenty  horse- 
power all  the  time,  if  you  had  to  furnish  it  reasonably  often? 

A.  Yes,  sir ; I should  run  it  constantly,  for  the  reason  (if  you 
desire  to  know  that)  that  in  a steam-engine  under  such  circum- 
stances, if  it  is  properly  fitted  up,  the  exhaust  steam  is  used  for 
heating  the  premises,  and  may  also  be  used  for  heating  the  dye- 
works  and  heating  water,  and  for  various  purposes,  — so  that 
there  is  very  little  lost  in  passing  the  steam  through  the  engine,  as 


754 


Testimony  of  B.  W.  C.  Farrington. 


the  steam  can  be  used  after  it  comes  through  it,  both  for  heating 
the  premises,  and  also  for  dyeing  and  washing. 


Re-direct. 

Q.  (By  Mr.  Butler.)  That  is,  you  would  run  your  steam  that 
you  used  for  heating  and  dyeing  through  the  engine  ? 

A.  Yes,  sir  ; and  very  little  would  be  lost  by  running  it  through 
the  engine  compared  with  what  there  would  be  by  taking  it  directly 
from  the  boiler.  I have  such  an  arrangement  as  that  myself. 

Mr.  Shattuck.  I understood  the  witness  to  say  that  where  they 
had  a body  of  water,  and  had  to  furnish  a margin  of  steam,  it 
would  be  furnished  for  $75. 

Commissioner  Russell.  I don’t  think  the  witness  has  testified 
in  regard  to  what  he  meant  by  that. 

Mr.  Butler.  We  will  get  it  before  we  get  through. 

Commissioner  Francis.  Is  there  any  objection  to  his  explaining 
what  he  does  mean  ? 

The  Witness.  If  you  will  give  me  the  point  that  you  wish 
me  to  explain,  I will  make  the  explanation. 

Mr.  Butler.  The  point  I understand  is'  this : you  said  you 
thought  that  to  put  into  Mr.  Faulkner’s  mills  twenty  horse-power, 
would  cost  $75,  a horse-power  per  year.  The  point  is,  whether  that 
would  pay  it  for  the  constant  use  through  the  year,  or  whether  it 
would  be  only  occasionally. 

The  Witness.  I meant  that  it  would  cost  them  at  the  rate  of 
$75  for  the  time  they  used  it. 

Q.  (By  Mr.  Shattuck.)  You  mean  the  steam? 

A.  Yes,  sir;  although  that  would  admit  of  a little  calculation, 
of  course  the  interest  on  the  cost  of  putting  in  an  engine,  and  any 
necessary  buildings  that  might  be  wanted  for  it,  if  the}'  were 
spread  over  a term  of  twelve  months,  would  be  less  than  though 
the  engine  were  run  only  two  months.  I don’t  know  that  a man 
could  start  up  an  engine  and  run  it  only  two  weeks  in  the  year  at 
the  rate  of  only  $75  a horse-powi  r.  Probably  he  could  not.  It 
would  depend  something  on  the  time  that  he  used  it. 

Q.  Did  you  mean  when  you  gave  that  answer,  that  if  he  ran  it 
six  months  it  would  cost  him  $37.50? 

A.  If  he  should  run  it  six  months  in  the  year,  it  would  cost  him 
in  my  opinion  not  more  than  $75  a horse-power  ; — if  steam  could 
be  furnished  six  months  in  the  year,  or  even  three  months,  it  would 
cost  him  at  the  rate  of  $75  per  year  ; one-fourth  for  three  months,  one- 
half  for  six  months,  and  three-fourths  for  nine  months.  I might 
say  that  where  an  establishment  has  already  boilers  and  coal-bins, 
and  they  are  obliged  to  keep  and  do  keep  a fireman  to  look  after 
their  boilers,  the  expense  of  running  a small  engine  is  very 
little. 

Q.  (By  Mr.  Storey.)  What  elements  do  you  take  into  con- 
sideration in  fixing  that  $75  a horse-power? 

A.  I take  the  cost  of  the  fuel,  the  cost  of  the  fireman  and 
engine,  — the  interest  on  the  outlay. 

Q.  Take  a case  where  a person  has  no  engine  whatever,  and  is 


Testimony  or  B.  W.  C.  Farrington. 


755 


called  upon  to  furnish  steam-power ; how  much  would  it  cost  him, 
for  example,  to  put  in  an  engine  that  would  supply  fifty  horse- 
power, — taking  into  consideration  the  cost  of  the  engine  and 
boilers,  the  building,  shafting,  belting,  steam-pipes,  and  everything 
that  would  be  necessary  to  set  that  engine  up,  so  that  it  would 
work  — a fifty  horse-power  engine  ? 

A.  That  would  vary  very  much.  If  you  had  to  furnish 
buildings  — if  you  had  to  build  a building  especially  for  that. 

Q.  Imagine  such  a case,  where  he  has  to  build  such  a building 
especially  for  that.  Just  describe  the  sort  of  building  you  would 
put  in.  Give  us  your  estimate  of  the  cost  of  the  engine,  and  then 
state  of  what  elements  that  cost  is  made  up  ? 

A.  I don’t  know  that  I could  give  you  this  time  the  cost  of  an 
engine  of  fifty  horse-power.  It  would  be  necessary  for  me  to  go 
into  some  figures  in  order  to  do  that. 

Q.  How  long  since  you  had  occasion  to  inquire  into  the  cost  of 
a fifty  horse-power  engine? 

A.  I never  did  — not  that  particular  sized  engine. 

Q.  Did  you  ever  have  occasion  to  put  up  an  engine  of  that  par- 
ticular power?  ' 

A.  No,  sir. 

Q.  Did  you  ever  have  occasion  to  find  out  what  the  cost  was 
at  all  ? 

A.  Oh,  yes,  sir,  — because  I have  had  occasion  to  put  up  two 
engines  in  my  life. 

Q.  How  long  ago? 

A.  One  within  two  years  ago,  a Corliss  engine,  and  some  years 
ago  a Wright  engine. 

Q.  You  had  occasion  to  put  up  the  two  engines  now  used  by  the 
Wamesit  Power  Company? 

A.  Yes,  sir. 

Q.  Is  that  the  whole  of  your  experience  in  putting  up  engines  ? 

A.  Yes,  sir. 

Q.  Then  you  would  not  be  able  to  give  us  any  opinion  as  to  the 
cost  of  engine-shafiing,  boilers,  pipes? 

A.  Not  at  this  moment.  No,  sir. 

Q.  Now  as  to  the  cost  of  the  engine  and  the  chimney? 

A.  That  would  vary  very  much.  I could  give  you  in  regard  to 
the  chimney  : you  might  do  it  for  $1,000,  or  you  might  spend 
$5,000. 

Q.  Now  then,  would  not  the  interest  on  the  outlay  necessary  to 
put  up  the  engine,  and  erect  the  engine  be  precisely  the  same 
whether  the  engine  was  run  one  month  or  twelve? 

A.  Yes,  sir. 

Q.  So  that  element  would  be  constant  in  the  expense? 

A.  Under  some  circumstances,  it  would.  In  most  all  the  mills 
with  which  I am  acquainted  — 

Q.  (Interrupting.)  I am  asking  that  question  specifically. 

A.  I believe  I answered,  that  it  would  depend  upon  circum- 
stances. 

Q.  You  mean  to  say  that  circumstances  would  vary  the  interest 
on  the  original  outlay  ? 


756 


Testimony  of  B.  W.  C.  Farrington. 


A.  Yes,  sir,  very  much. 

Q.  If  you  spend  $5,000  in  putting  up  3rour  building,  and  put- 
ting in  your  engine,  do  you  mean  that  the  interest  on  $5,000 
would  differ  according  to  circumstances? 

A.  No,  sir ; I mean  to  say  that  one  man  could  put  a twenty-five 
or  thirty  horse-power  engine  into  his  establishment  at  very  much 
less  expense  than  another  one. 

Q.  That  is  to  say,  if  a man  lived  where  land  was  cheap,  it  would 
not  cost  him  much  for  that? 

A.  No,  sir,  not  that. 

Q.  If  he  had  room  in  his  building  where  he  could  put  an  engine, 
it  would  be  much  less? 

A.  Yes,  sir. 

Q.  The  ordinary  outlay  and  the  interest  on  that  would  be  the 
same,  whether  you  used  your  engine  one  week  or  twelve  months? 

A.  Yes,  sir ; I expressed  that,  that  it  would  depend  upon  the 
length  of  time  you  spread  your  interest  over. 

Q.  Does  an  engine  depreciate  more  when  it  is  used,  or  when  it 
is  allowed  to  lie  perfectly  still  ? 

A.  I don’t  know  what  you  mean  by  “ perfectly  still.”  We 
never  let  an  engine  lie  perfectly  still.  We  move  it  enough  to  keep 
it  in  order.  If  it  was  properly  cared  for,  I should  rather  have  it 
lie  idle,  if  it  was  used  enough,  to  keep  it  in  order. 

Q.  Suppose  a man  was  obliged  to  keep  an  engine  to  supply 
power  in  emergencies,  which  could  not  well  be  calculated  in  ad- 
vance, and  had  to  have  his  engine  ready,  so  that  if  water  was  short 
to-day,  and  he  would  have  to  put  on  power,  he  would  be  able  to  do 
so,  and  then  there  would  be  a space  of  two  months  that  he  did  not 
use  it,  and  then  two  weeks  when  he  used  it  constantly,  would  it 
not  be  necessary  for  him  under  those  circumstances  to  keep  an  en- 
gineer constantly  employed? 

A.  Yes,  sir,  it  would,  i.  e.,  a sort  of  an  engineer.  They  differ 
very  much,  engineers  do.  A man  who  was  running  a little  engine 
of  thirty  or  forty  horse-power  occasionally,  would  employ  quite  a 
different  man  for  an  engineer  from  what  he  would  if  he  was  running 
a three  or  four  hundred  horse-power  engine  constantly. 

Q.  Would  it  require  a less  skilful  man  to  run  a thirty  horse- 
power engine  for  part  of  the  time,  than  it  would  a great  length  of 
time? 

A.  Yes,  sir.  I think  for  the  small  time  I should  find  a man 
who  was  both  fireman  and  engineer. 

Q.  Of  course  you  would  run  a little  more  risk  from  fire,  or  of 
accident  to  your  engine? 

A.  Well,  possibly  so. 

Q.  Otherwise  a man  who  was  both  fireman  and  engineer  would 
do  as  well  for  twelve  months  as  for  one? 

A.  Oh,  yes,  sir. 

Q.  In  other  words,  you  might,  if  you  were  very  economically  in- 
clined, and  had  a thirty  or  forty  horse-power  engine,  run  it  con- 
stantly by  the  fireman,  and  not  have  any  engineer  at  all  ? 

A.  Yes,  sir. 

Q.  In  a very  large  establishment  — 


Testimony  of  B.  W.  C.  Farrington. 


757 


A.  [Interrupting.]  I never  knew  a thirty  horse-power  engine 
to  be  used  in  a very  large  establishment.  I should  think,  in  the 
case  of  the  Chase  mills,  they  would  employ  a man  who  was  both 
fireman  and  engineer. 

Q.  Did  I understand  you  to  say  in  your  answer  before,  that  it 
had  been  no  part  of  your  business  to  be  familiar  with  the  water  in 
the  canal  for  the  past  two  or  three  years,  and  that  you  had  no 
special  occasion  to  notice  it? 

A.  No,  sir ; I did  not  say  that,  but  that  I had  not  given  it  so 
much  attention  as  formerly. 

Q.  What  has  been  your  business  in  the  mill  for  the  past  three 
or  four  years  ? 

A.  I have  been  the  treasurer  of  two  companies,  and  the  manager 
of  another. 

Q.  Two  companies  at  that  dam? 

A.  Yes,  sir. 

Q.  Has  your  office  been  there? 

A.  Yes,  sir. 

Q.  What  difference  was  there  between  the  last  two  or  three 
years,  and  the  time  before  that? 

A.  For  the  last  two  or  three  years  I have  had  more  care  in  con- 
nection with  the  treasurership  of  these  companies  than  formerly. 
It  has  taken  my  attention  away  from  the  mills  more  than 
formerly. 

Q.  You  mean  that  you  have  been  more  in  the  office,  and  less  in 
the  practical  management  of  the  mills  than  before? 

A.  Yes,  sir. 

Q.  Your  main  business  has  been  about  the  office. 

A.  Well,  practically,  and  about  the  mills. 

Q.  (By  Mr.  Richardson.)  A question  was  asked  you  about 
the  cost  of  a suitable  engineer  to  run  an  engine.  I did  not  quite 
understand 3rour  answer? 

A.  Well,  I should  expect  to  hire  a man,  if  I had  a small  engine 
to  run  twenty  horse-power  occasionally,  and  use  the  boilers  for 
heating  the  dye-works.  I should  expect  to  hire  a man  certainly 
for  $2  a day  to  do  both.  I think  I could  for  less. 

Q.  Supposing  you  had  to  furnish  a little  engine  of  fifteen  horse- 
power, what  service  of  an  engineer  would  it  require  to  run  it? 
Could  you  use  him  for  any  other  purpose  — for  attending  to  the 
fires  as  well  as  running  an  engine? 

A.  It  would  cost  for  the  fifteen  horse-power  engine  the  same  for 
the  engineer.  I should  not  want  a man  in  that  capacity  who  would 
be  obtained  for  less  than  $2  a day ; though  we  can  hire  very  good 
men  now  for  $1.75  or  $1.50. 

Q.  That  element  is  one ; the  element  of  cost  or  capital  is 
another ; the  element  of  depreciation  is  another ; the  fuel  is 
another;  the  taxes,  etc.,  and  all  those  things  are  another.  But 
you  do  not  give  any  result.  Have  you  had  any  experience  of  all 
those  matters? 

A.  Yes,  sir ; I just  said  that  I have  had  experience  in  running 
steam-engines. 


758 


Testimony  of  B.  W.  C.  Farrington. 


Q.  I thought  you  answered  that  you  could  not  give  the  cost  of 
furnishing  fifteen  horse-power  or  anything  approximating  to  it. 

A.  Well,  I could  approximate.  I assume  three  pounds  of  coal 
per  hour. 

Q.  It  is  between  two  and  three,  is  it  not? 

A.  Yes,  sir. 

Q.  With  coal  at  how  much  ? 

A.  With  coal  in  the  vicinity  of  $7. 

Q.  When  yon  speak  of  this  power  at  $75  a horse-power,  you 
mean  for  how  man}^  hours  in  the  day? 

A.  For  ten  hours. 

Q.  While  they  ran  1 1 £ hours,  it  would  be  a proportional  addition, 
would  it  not? 

A.  No  ; not  proportionally. 

Q.  You  have  testified  that  they  could  get  power  at  $75.  Now, 
if  you  mean  that  that  would  be  for  ten  hours,  the  cost  would  be 
more  for  11 J hours,  would  it  not? 

A.  The  cost  would  be  a little  more,  but  not  proportionally. 

Q.  Do  you  know  of  any  power  that  is  sold  to  be  used  for  11 J 
hours  per  day  ? 

A.  I don’t  know  of  any  to-day  ; for  they  don’t  work  even  ten 
hours. 

Q.  Now,  when  you  speak  of  this  price  that  it  has  been  sold  for 
there,  you  know  that  it  has  been  sold  higher,  do  you  not? 

A.  I never  heard  of  it. 

Q.  Don’t  you  know  what  Mr.  Hiscox  paid  for  this  very  com- 
pany? 

A.  I don’t  know. 

Q.  Don’t  you  know  what  Mr.  Hiscox  paid  during  the  five  years’ 
term,  for  what  he  had  from  the  Wamesit  Power  Company? 

A.  I don’t  know  exactly  what  he  paid. 

Q.  You  have  spoken  of  what  power  has  been  let  for  by  the 
Wamesit  Company? 

A.  Yes,  sir. 

Q.  Now,  don’t  you  know  the  fact  that  on  the  five  years’  term  of 
time,  it  was  let  for  $100  a horse-power? 

A.  No,  sir  ; it  never  was. 

Q.  You  knew  of  the  contract-lease  with  Mr.  Hiscox,  didn’t  you? 
A.  I did. 

Q.  What  was  the  amount  he  paid  for  what  he  used  under  that 
contract  ? 

A.  $75  per  horse-power. 

Q.  Then  what  else  made  up  the  $100? 

A.  Rent  of  buildings  and  land. 

Q.  He  didn’t  have  a building,  did  he? 

A.  Yes,  sir ; he  had  a place  where  he  had  some  grinding. 

Q.  How  much  land  did  he  have  in  area? 

A.  Well,  I should  say,  possibly,  twice  as  large  as  this  room. 

Q.  And  how  much  of  a building? 

A.  The  building  that  stood  upon  that  land  belonged  to  himself. 

Q.  Then  he  didn’t  pay  for  it  to  you? 

A.  Yes,  sir ; he  had  another. 


Testimony  of  B.  W.  C.  Farrington. 


759 


Q.  He  paid  that  $100,  and  paid  it  in  one  sum,  did  he? 

A.  Yes,  sir. 

Q.  You  divide  it  into  $75  for  the  horse-power  and  $25  for  the 
land? 

A.  Yes,  sir. 

Q.  Now  do  you  mean  that  it  was  land  twice  as  large  as  this 
room  ? 

A.  All  in  excess  of  $75  was  paid  for  land. 

Q.  (By  Mr.  Shattuck.)  That  was  $25  a horse-power? 

A.  He  had  another  building  in  another  part  of  the  works,  — a 
small  building  used  for  another  purpose. 

Q.  He  testified  distinctly  that  he  paid  that  for  the  land  and 
power,  he  putting  up  the  building. 

A.  He  had  another  small  place  at  another  part  of  the  works. 

Q.  Was  it  a brick  building? 

A.  I think  it  was  stone. 

Q.  How  large  was  it? 

A.  Well,  it  was  a small  place. 

Q.  About  how  large? 

A.  Well,  it  might  have  been,  I should  say,  about  twenty  feet 
square. 

Q.  What  was  it  used  for?  Was  there  any  power  in  that? 

A.  Yes,  sir. 

Q.  Any  power  used  there  ? 

A.  Yes,  sir. 

Q.  He  used  part  of  this  power? 

A.  Yes,  sir. 

Q.  How  much? 

A.  Well,  I don’t  recollect.  I think,  though,  that  it  was  one 
horse-power.  It  might  have  been  two.  It  was  a small  amount 
that  was  used  there. 

Q.  So  that  he  put  his  own  building  on  what  land  he  had? 

A.  Yes,  sir. 

Q.  And  flume? 

A.  No,  sir  ; there  was  no  flume  on  it.  He  took  the  power  from 
another  'building. 

Q.  And  for  what  he  had,  you  divide  it,  that  $75  was  for  the 
horse-power,  and  the  balance  would  be  for  the  land  and  what  else 
he  had  there? 

A.  Yes,  sir ; he  used  some  water. 

Q.  (By  Mr.  Storey.)  You  say  steam-power  could  be  furnished 
for  $75  a year.  Does  it  make  any  difference  whether  you  furnish 
ten  horse-power  or  one  hundred,  in  regard  to  the  rate? 

A.  I should  think  the  rate  of  cost  for  ten  horse-power  would  be 
a little  more  than  for  a larger  amount. 

Q.  How  would  you  vary  it?  How  much  would  it  cost  per 
horse-power  for  three  hundred? 

A.  Well,  I don’t  know  the  exact  proportion  between  a small 
amount  and  a very  large  amount.  I can  give  no  approximation. 

Q.  Can  you  give  not  even  a guess? 

A.  I don’t  know  but  I could  guess. 

Q.  So  between  ten  and  three  hundred  horse-power  you  could 


760 


Testimony  of  B.  W.  C.  Farrington. 


not  say  how  much  the  difference  would  be  in  the  rate  of  cost  for 
furnishing? 

A.  No,  sir. 

Q.  Then  if  you  had  not  in  your  mind  any  special  amount  of 
horse-power  when  you  fixed  the  price  at  $75,  will  you  say  how  you 
happened  to  take  $75  as  the  price? 

A.  I did  have  something  in  my  mind. 

Q.  Please  state  what  number  of  horse-power  you  had  in  your 
mind  ? 

A.  Our  conversation  was  based  upon  the  consideration  that 
twenty  horse-power  would  be  used,  and  that  it  might  be  thirty-five 
or  forty,  in  an  engine  of  that  size. 

Q.  On  what  data  was  that  opinion  based? 

A.  The  cost  of  coal,  the  cost  of  a fireman. 

Q.  What  price  do  you  fix  for  the  coal? 

A.  I counted  the  cost  of  the  coal  at  about  $630  a year. 

Q.  At  what  price  per  ton  ? 

A.  Seven  dollars. 

Q.  What  is  the  price  at  which  it  can  be  delivered  at  Lowell 
to-day  ? 

A.  It  can  be  delivered  at  Lowell  for  less  than  that. 

Q.  That  is  $630  a year  at  $7  per  ton.  What  is  the  cost  of  the 
engine? 

A.  I arrived  at  it  in  this  way : I said  that  that  would  leave 
$870  to  pay  for  the  firemen,  interest  and  depreciation,  which 
I knew  was  very  large  ; that  it  would  fully  cover  it. 

Q.  Now,  I want  to  get  at  whether  you  fixed  $75  a horse-power 
first,  and  then  worked  up  your  items,  or  vice  versa . 

A.  I took  the  items  first. 

Q.  Now,  how  much  did  you  figure  for  engineer,  how  much  for 
fireman,  how  much  for  depreciation,  how  much  for  interest,  how 
much  for  taxes,  and  how  much  for  cost? 

A.  I did  not  put  all  the  items  separately  in  that  way. 

Q Then  how  did  you  happen  to  arrive  at  $870? 

A.  I told  you.  I allowed  $630  for  the  coal  at  three  pounds  per 
hour  per  horse-power. 

Q.  You  started  with  your  coal  as  constant.  Now,  how  did  you 
get  your  $870? 

A.  I accounted  that  engineer  and  fireman  would  cost  very  little 
more  for  either  of  those  estimates  than  to  run  without  them. 

Q.  Then  }Tou  had  in  your  mind  what  estimates? 

A.  I was  asked  to  take  the  Sterling  mill,  and  how  much  I could 
put  in  twrenty  horse-power  for. 

Q.  You  don’t  allow  anything  for  fireman  and  engineer. 

A.  I do,  but  not  much.  I don’t  think  it  would  cost  a dollar 
more. 

Q.  Yon  had  in  your  mind  certain  figures  on  which  you  based 
your  estimates.  I want  to  get  at  what  those  figures  are.  Now, 
you  say  you  did  not  allow  any  definite  amount  for  engineer  or 
fireman. 

A.  Not  an}’  definite  amount,  but  I did  allow  something.  It 
w’ould  be  a large  allowance  if  you  allowed  one-quarter  of  the  pay 
of  a fireman. 


Testimony  of  B.  W.  C.  Farrington. 


761 


Q.  You  said  that  under  certain  circumstances  it  would  cost  875 
a horse-power. 

A.  It  would  not  cost  over  that. 

Q.  You  tell  me  that  that  $75  is  reached  by  adding  together  cer- 
tain items,  and  you  tell  me  that  one  of  those  items  is  so  much  for 
coal.  Now,  I ask  you  to  give  me  w7hat  items  were  in  your  mind 
when  you  fixed  that  price? 

A.  I will  tell  you.  In  the  first  place,  there  was  the  coal,  then 
the  engineer  and  fireman,  which  would  be  very  small. 

Q.  (Interrupting.)  Now,  you  say  that  you  allow  for  engineer 
and  fireman  very  little.  Now,  I ask  you  how  much?  That  is  a 
simple  question. 

A.  I would  not  allow  over  twenty-five  per  cent  of  his  pay. 

Q.  How  much  in  dollars  and  cents? 

A.  That  would  depend  upon  how  much  you  paid  him. 

Q.  How  much  did  you  allow  when  you  fixed  it  at  $75? 

A.  I did  not  figure  it  in  that  way. 

Q.  How  much  did  you  allow  for  interest? 

A.  I did  not  figure  the  amount  of  interest. 

Q.  How  much  for  depreciation  ? 

A.  I told  you  that  I did  not  figure  it  in  that  way. 

Q.  Then  I should  be  glad  to  know  how  you  did  get  at  it. 

A.  I assumed  that  I knew  pretty  much  what  the  coal  would 
cost,  — $630.  I assumed  that  fireman  and  engineer  would  cost 
very  little  more  ; probably  the  actual  fact  would  be  that  it  would 
be  nothing  more.  It  is  possible  that  in  addition  to  the  fireman,  the 
services  of  a machinist  or  mechanic  might  be  occasionally  called 
in  for  repairs.  That  would  be  very  small.  Then  I said  that  the 
cost  of  extra  coal-bins,  and  a boiler,  possibly,  and  the  cost  of  a 
room,  which  in  most  cases  in  the  mills  on  that  stream  would  not 
be  called  for  at  all.  There  is  probably  not  a mill  on  the  stream 
that  has  not  room  enough  to  put  an  engine  in  without  extra  incon- 
venience. I put  that  down  at  a certain  sum.  Then  I deducted 
from  that  what  the  value  of  the  steam  would  be  worth  after  it  had 
passed  through  that  engine.  In  my  figuring  I could  not  bring  it  up 
to  $60.  But  I assumed,  with  all  the  breakages  and  inconven- 
iences, that  it  was  perfectly  safe  to  say  that  it  could  be  furnished 
for  the  $75.  I did  not  think  it  would  bring  it  up  to  $60. 

Q.  You  had  20  horse-power? 

A.  Yes,  sir. 

Q.  Didn’t  you  take  20  and  multiply  it  by  the  75,  which  makes 
1,500  : and  then  you  found  the  coal  would  cost  $630,  and  you  said 
that  therefore  $870  would  be  the  cost  of  the  other  items? 

A.  No,  sir  ; I did  not  do  it  in  that  way. 

Q.  It  is  curious,  then,  that  that  is  the  way  it  works  out. 

A.  No,  sir ; I did  not  do  it  in  that  way.  I say  I don’t  think  it 
would  cost  $870. 

Q.  You  say  you  think  it  would  consist  mainty  of  those  other 
things? 

A.  Yes,  sir  ; I say  so  now. 

Q.  Did  you  get  at  that  $870  by  subtracting  the  cost  of  the  coal 
from  $1,500,  or  did  you  get  at  it  independently? 


762 


Testimony  of  B.  W.  C.  Farrington. 


A.  I arrived  at  it  independently. 

Q.  Now,  I should  like  to  know  what  items  in  your  amount 
would  figure  up  8870? 

A.  I did  not  have  any. 

Q.  Then  how  did  you  get  the  sum? 

A.  I tell  you  it  did  not  amount  to  $870.  I said  it  did  not 
amount  to  $60  a horse-power  in  my  figures,  but  I put  it  at  $75  to 
cover  all  possible  chance  of  loss  or  depreciation  or  breakage. 

Q.  Then  you  are  not  testifying  about  the  cost  of  furnishing 
steam-power  in  general,  but  as  to  what  it  would  cost  to  put  steam 
into  two  or  three  particular  mills  in  the  most  economical  way? 

A.  Along  there. 

Q.  (By  Mr.  Shattuck.)  Mr.  Farrington,  in  the  first  place,  did 
you  ever  know  an  engine  to  run  on  an  uncertainty  with  only  using 
twenty  horse-power,  to  get  steam  for  three  pounds  of  coal  per 
hour  ? 

A.  I never  knew  of  an  engine  running  on  an  uncertainty. 

Q.  Running  as  it  does  in  the  Stott  mill,  for  instance,  to  get 
power  for  three  pounds  of  coal  per  hour? 

A.  I don’t  know  how  it  runs  in  the  Stott  mill. 

Q.  As  they  must  run  where  they  are  running  in  this  way? 

A.  If  you  want  my  opinion  upon,  that  I can  give  it. 

Q.  I should  like  to  know  the  facts. 

A.  In  the  way  you  put  the  question  ,1  don’t  know  anything 
about  it. 

Q.  Do  you  know  anything  about  an  engine  of  20  horse-power 
furnished  with  coal  as  it  runs,  for  three  pounds  of  coal  per  hour? 

A.  I don’t  know  any  particular  engine  of  that  kind,  but  I be- 
lieve it  can  be  done  inside  of  that. 

Q.  Practically,  you  don’t  know  of  any  that  does  furnish  it  at 
that  rate  ? 

A.  I don’t  know  of  any  particular  engine  that  furnishes  it. 

Q.  Generally,  do  you  know  of  any  engine  that  furnishes  20 
horse-power  at  the  rate  of  three  pounds  of  coal  an  hour  per  horse- 
power ? 

A.  No,  sir. 

Q.  Then  how  do  you  get  at  your  three  pounds? 

A.  I get  at  it  by  the  quantity  of  coal  I have  used  in  my  own 
engine,  which  is  a Wright  engine. 

Q.  What  other  engine  have  you? 

A.  A Corliss  engine  of  350  horse-power. 

Q.  How  much  coal  do  you  use  there  per  horse-power  ? 

A.  I don’t  know  so  much  about  that  as  about  the  other. 

Q.  Do  }tou  know  about  the  Wright  engine? 

A.  Yes,  sir. 

Q.  How  much  there  ? 

A.  It  is  varied  ; sometimes  less  than  three,  and  sometimes  more 
than  three. 

Q.  How  much  more  than  three? 

A.  Sometimes  I have  seen  the  time  when  it  has  used  more  than 
four. 


Testimony  of  B.  W.  C.  Farrington. 


763 


Q.  Yon  propose  to  squeeze  us  down  to  the  lowest  point,  — more 
than  you  have  ever  run  yourself? 

A.  I will  tell  you  why  it  used  four.  At  one  time  we  were  not 
prepared  to  heat  the  water,  and  we  pumped  the  cold  water  into  it. 
At  another  time  we  were  furnished  with  a heater  which  very  much 
diminished  the  quantity  of  coal.  The  heater  was  a boiler  for  heat- 
ing the  water  before  it  went  into  the  steam  boiler. 

Q.  So  that  you  have  two  furnaces  or  places  for  heating? 

A.  No,  sir. 

Q.  Then,  how  much  power  does  that  engine  furnish? 

A.  I think  we  have  taken  one  hundred  and  fifty  horse-power. 

Q.  At  that  }tou  sometimes  get  four,  and  have  run  at  less  than 
three  ? 

A.  Yes,  sir. 

Q.  How  much  less  than  three?  Have  you  ever  measured? 

A.  We  have  at  times  run  at  two  and  three-quarters. 

Q.  When  you  are  running  your  engine  so,  does  it  not  take 
more  coal? 

A.  It  practically  might  take  more. 

Q.  Do  you  believe  there  is  any  engine  in  Lowell,  furnishing 
twenty  horse-power,  which  is  run  at  less  than  five  pounds  of  coal 
per  hour? 

A.  I don’t  know  how  they  are  fitted.  I never  examined  one. 

Q.  So  you  propose  to  put  us  in  on  three  pounds,  without  any 
fuurther  knowledge  than  that  an  engine  of  150  horse-power  has 
been  squeezed  down  to  more  than  four? 

A.  I propose  to  put  it  at  three  pounds  with  what  knowledge  of 
steam  I have. 

Q.  That  will  do  for  the  coal.  Now,  how  much  less  power  do 
you  get  out  of  your  steam  where  you  use  it  for  heating  than  where 
you  do  not?  How  much  less  pressure? 

A.  It  is  very  little. 

Q.  Did  you  make  any  allowance  for  that? 

A.  Oh,  yes,  sir.  There  is  about  two  pounds  less  pressure. 

Q.  Is  there  not  fifteen  or  sixteen  pounds  less  pressure  ? 

A.  Oh,  no,  sir. 

Q.  Are  you  sure? 

A.  Yes,  sir. 

Q.  Don’t  it  come  down  one-third  ? 

A.  No,  sir. 

Q.  How  do  you  know  that? 

A.  Because  I have  measured  it. 

Q.  Sometimes  they  use  the  same  steam  for  heating  that  they 
use  for  power  in  mills  ; at  other  times  they  do  not.  It  is  not  set- 
tled that  one  way  is  better  than  another,  is  it? 

A.  Yes,  sir  ; I think  it  is  decidedly  settled. 

Q.  There  are  some  inconveniences  attending  it? 

A.  Well,  if  you  are  properly  fitted  up  for  it,  I don’t  know  that 
there  are  any  great  inconveniences. 

Q.  It  reduces  your  power  somewhat? 

A.  Not  but  very  little.  There  is  a slight  back-pressure. 


764 


Testimony  of  B.  W.  C.  Farrington. 


Q.  One  other  question.  Your  place  is  at  the  lower  end  of  the 
canal,  is  it  not? 

A.  Yes,  sir. 

Q.  How  often  did  you  have  occasion  to  go  to  the  head  of  the 
canal  to  observe  the  water  on  the  dam? 

A ■ Sometimes  every  day,  sometimes  twice  a day ; sometimes 
every  week,  and  sometimes  once  a fortnight. 

Q.  Your  observations  for  the  last  three  years  you  do  not  testify 
to,  but  onl}r  prior  to  that  time? 

A.  I did  not  say  that,  — but  that  I had  not  given  so  much 
attention  for  the  last  three  years  as  formerly.  Formerly  I gave  it 
my  constant  attention.  During  the  last  three  years  my  attention 
has  been  somewhat  withdrawn  to  other  business.  When  I have 
been  at  home,  I have  always  seen  it  every  day. 


Re-direct. 

Q.  (By  Mr.  Butler.)  A question  or  two,  Mr.  Farrington : 
Take  a woollen-mill  that  is  running  from  six  to  fourteen  sets  of 
cards,  such  as  several  mills  are  up  and  down  our  canal ; whether 
they  must  not  always  have  a steam  boiler  for  heating  and  dyeing 
purposes? 

A.  I should  think  they  would  be  indispensable. 

Mr.  Richardson.  He  has  had  no  experience  in  manufacturing, 
and  the  necessities  of  it. 

Q.  How  long  have  you  run  a woollen-mill? 

Mr.  Richardson.  No,  I mean  a mill  of  that  kind. 

Q.  That  involves  the  necessity  of  a chimney  being  built  to 
make  steam,  and  boilers  being  set,  does  it  not? 

A.  It  does. 

Q.  Coal  bins  and  appliances  for  taking  care  of  the  coal? 

A.  Yes,  sir. 

Q.  There  must  be  a fireman  to  give  constant  attention  to  that 
boiler  for  heating  and  firing  purposes  ? 

A.  Yes,  sir. 

Q.  And  the  steam  must  be  running  that  boiler  under  a certain 
pressure,  more  or  less  ? 

A.  Yes,  sir. 

Q.  Now,  having  those  appurtenances,  all  you  want  more  to 
run  a twenty  horse-power  engine  is  a place  to  set  the  engine  and 
to  make  the  connection  in  the  mill? 

A.  Yes,  sir. 

Q.  Is  there  anything  objectionable  in  putting  a small  engine 
into  the  basement  room  of  either  one  of  those  mills? 

A.  I don’t  know  of  any. 

Q.  Then,  having  the  steam  already  up  for  heating  purposes, 
what  is  necessary  to  be  added  if  you  run  the  engine  in  addition,  is 
either  to  put  a sufficient  pressure  on  your  boiler,  or,  if  more  is 
required,  to  put  in  a boiler? 

A.  Yes,  sir. 

Q.  And  the  same  fireman,  if  he  is  a competent  man,  can  run 
that  engine  who  tends  the  boiler,  can  he  not? 


Testimony  of  B.  W.  C.  Farrington. 


765 


A.  I should  say  he  could,  decidedly. 

Q.  And  he  does  do  it  practically  in  your  concern? 

A.  Yes,  sir. 

Q.  And  that  with  a 125  horse-power  engine? 

A.  Yes,  sir. 

Q.  And  then  your  method  of  using  would  be  to  run  the  steam 
through  your  engine  to  get  the  power  of  the  increased  pressure, 
and  then  use  it  for  heating  and  dyeing  upon  the  back  pressure? 

A.  Yes,  sir,  and  the  exhaust. 

Q.  You  use  the  exhaust  for  heating  and  drying? 

A.  Yes,  sir. 

Q.  And  that  is  the  way  you  have  practically  run  your  own  en- 
gine, is  it  not? 

A.  Yes,  sir. 

Q.  And  running  in  that  way,  with  proper  fixing  up,  you  found 
you  could  make  a horse-power  for  a about  2£  pounds  of  coal. 

A.  Yes,  sir. 

Mr.  Storey.  I object  to  that  form  of  interrogatory.  It  is 
testimony  coming  quite  as  much  from  the  counsel  as  from  the 
witness. 

Q.  Now  then,  do  know  of  an  engine  in  a large  mill  in  Lowell  — 
the  Lowell  Carpet  Works  — Which  is  running  that  way? 

A.  Ido. 

Q.  From  your  knowledge,  is  that  a common  and  economical 
way  of  using  steam  ? 

A.  I think  it  is  — decidedly  an  economical  one. 

Q.  And  with  such  use  of  steam  you  could  have  it  all  ready  to 
supplement  your  water-power,  as  it  goes  up  and  down  ? 

A.  Yes,  sir. 

Q.  Practically,  in  the  operation  of  steam,  whether  it  is  not 
quite  as  economical  to  make  your  steam  in  an  excess  of  boiler 
capacity  rather  than  to  have  less  or  little  boiler  capacity  ? 

A.  I alwa}Ts  have  an  excess  of  boiler  room. 

Q.  For  making  steam  for  any  purpose,  it  is  more  economical? 

A.  Yes,  sir. 

Q.  Now,  would  not  it  be,  in  your  judgment,  as  a man  used  to 
using  steam,  a proper  and  economical  way,  if  you  wanted  a twenty 
horse-power  engine,  to  put  it  in  a separate  building  — under  circum- 
stances of  wanting  twenty  horse-power  from  an  engine  — in  connec- 
tion with  the  several  mills  on  our  stream?  Would  it  be  proper  to 
build  a separate  building  and  put  the  engine  outside  of  the  mill  — 
make  separate  and  distinct  arrangements  for  running  that  engine 
and  heating  it  up  whenever  it  was  wanted  to  run,  letting  the 
boilers  be  cold  all  the  time,  and  then  put  in  the  coal  and  heat  it 
up  as  it  was  wanted  ? 

A.  I should  not  do  it. 

Q.  When  you  spoke  of  steam-power  being  sold  at  $125  a horse- 
power, whether  that  was  in  the  centre  of  the  business  streets  in 
Lowell  — at  small  amounts? 

A.  I never  heard  of  but  one  instance  in  Lowell  where  it  was  so 
high  as  that.  I have  heard  that  as  high  i s that  had  been  charged 
at  the  Lowell  Hosiery  Mills.  I have  heard  that  power  had  been 
sold  there  at  $125. 


766 


Testimony  of  B.  W.  C.  Farrington. 


Q.  In  small  amounts? 

A.  Yes,  sir. 

Q.  Is  that  the  only  instance? 

A.  Yes,  sir. 

Q.  Do  you  mean  to  say  that  in  a mill  running  ten  sets  of  cards 
and  the  requisite  machinery,  requiring  twenty  additional  horse- 
power, having  the  necessary  appliances  to  heat  the  mill,  and  steam 
the  dye  and  scouring  works,  and  for  drying,  it  would  cost  $75  a 
horse-power  to  put  in  an  engine  and  run  the  steam  through  that 
engine,  and  so  get  the  power?  That  it  would  cost  as  much  as 
that? 

A.  I don’t  think  it  would  cost  as  much  as  that. 

Q.  What  would  you  put  that  cost  at? 

A.  I don’t  know  as  I quite  understand  you. 

Q.  I will  repeat  the  question  : A mill  has  ten  sets  of  cards,  with 
all  the  requisite  machinery,  steam  heaters,  steam  dryers,  and  steam 
dye-works  ; it  has  its  boiler,  coal-bins  and  chimneys,  and  all  appli- 
ances for  making  steam  for  that  purpose ; it  has  occasion  to  use 
for  a part  or  whole  of  the  year,  as  the  case  may  be,  twenty  horse- 
power of  steam.  Now,  to  put  in  an  engine  and  to  use  that  steam 
to  make  twenty  horse-power,  with  those  appliances  to  start  with, 
would  it  cost  $75  a horse-power  to  make  that  twenty  horse-power 
of  steam  ? 

A.  I don’t  think  it  would. 

Q.  How  high  should  you  put  that  cost  under  such  circumstances 
as  I have  stated?  Give  a liberal  estimate  of  how  much  it  would 
cost  to  produce  twenty  horse-power. 

A.  I am  quite  sure  that  $60  would  do  it,  and  I have  heard  of 
its  being  done  very  much  less.  I think  $60  would  be  a very 
liberal  calculation. 

Q.  You  have  heard  of  its  being  done  for  very  much  less? 

A.  Yes,  sir  ; I have. 

Q.  Now,  Mr.  Farrington,  suppose  you  had  occasion  to  use 
twenty  horse-power  under  the  circumstances  that  I indicated  in  my 
last  question,  and  had  an  engine  in  and  the  main  power  up,  and 
we  will  say  that  fifty  horse-power  was  variable,  whether  }rou  would 
think  it  economical  to  run  your  engine  the  whole  time  ? 

A.  Well,  it  has  always  been  my  belief  that  the  engine  could  be 
run  the  whole  time  nearly  if  not  quite  as  economically  as  it  could 
be  run  spasmodically  or  occasionally. 

Q.  Is  one  element  of  that  belief  the  fact  of  the  little  increased 
cost  in  the  steam  in  running  it  through  the  engine? 

A.  That  is  one  of  them. 

Q.  What  is  the  other? 

A.  The  power  would  be  steady  and  regular. 

Q.  The  power  would  be  better? 

A.  Yes,  sir  ; more  uniform. 

Q.  So  that,  if  you  had  a power  which  for  three  months  in  the 
year  — those  months  composed  of  different  days  when  your  power 
would  run  down  from  seventy  horse-power  to  fifty  or  sixty,  as  the 
case  might  be,  for  a portion  of  the  da}’,  and  you  would  require 
steam  either  part  or  the  whole  day  to  supply  that  twenty  horse- 


Testimony  of  B.  C.  W.  Farrington. 


767 


power  for  three  months  in  the  year  — would  you  think  it  a good 
custom  to  run  that  engine  the  whole  time,  looking  to  the  quality  of 
the  power  you  got  at  your  works? 

A.  My  impressions  are,  that  I should.  I never  tried  ; but  I 
have  studied  it  and  thought  of  it  a good  deal.  It  has  been  my 
belief  that  it  would  be  a saving  rather  than  otherwise  to  run  the 
engine  constantly  and  keep  it  running. 

Q.  One  other  thing  : a competent  engineer  must  be  a competent 
machinist,  must  he  not? 

A.  Yes,  sir,  he  should  be. 

Q.  And  when  the  engine  is  not  necessary  to  be  run,  there  would 
always  be  work  for  him  in  the  machine  and  repair  shop,  would 
there  not? 

A.  That  is  the  way  I employ  one. 

Q.  So  that  if  one  concluded  to  run  his  engine  only  part  of  the 
time,  there  would  be  no  loss  from  the  time  when  the  engineer  was 
not  running  the  engine^ — no  loss  of  his  wages  ? 

A.  No,  sir. 

Cross-examination  resumed. 

Q.  (By  Mr.  Richardson.)  Your  answer  of  $60,  embraces  the 
same  exceptions  as  to  cost,  which  I think  you  left  not  ver}r  clear, 
as  to  how  it  can  be  applied.  I want  you  to  say  what  that  $60 
covers.  Now,  what  is  there  that  that  does  not  cover,  that  was  as- 
sumed in  Mr.  Butler’s  question  ? He  assumes  certain  conditions, 
and  then  he  says,  “ with  those  conditions  assumed,  what  do  you 
think  a horse-power  would  cost?”  and  your  answer  was  “ $60”? 

A.  No,  sir ; I said  it  would  not  exceed  $60. 

Q.  Now  I want  to  know  what  you  take  out  of  the  cost,  in  an- 
swering that  question  ? 

A.  He  has  the  appurtenances  already  existing. 

Q.  Such  as  what? 

A.  Such  as  chimney,  boiler-house,  coal-bin,  fireman  ; and,  as 
generally  the  establishment  is  fitted  up,  there  is  the  boiler-room. 
Generally  they  have  an  excess  of  boiler-room. 

Q.  You  don’t  put  in  the  engineer  there-? 

A.  I should  not  have  an  engineer.  I should  make  the  fireman 
run  the  engine. 

Q . I wanted  to  get  that  distinctly  — what  the  difference  was. 
You  say,  that  having  those  things  all  paid  for,  and  reckoning  noth- 
ing for  them,  you  could  do  the  balance  for  $60? 

A.  Yes,  sir. 

Q.  And  you  could  dispense  with  an  engineer? 

A.  Yes,  sir. 

Q.  Now,  if  you  added  an  engineer,  it  would  add  $600  per  year? 

A.  It  would  depend  upon  the  class  of  engineer. 

Q.  You  would  not  want  less  than  a $2  man,  I suppose? 

A.  I think  not.  You  can  hire  a very  good  man  for  $1.75. 

Q.  That  would  add  $30  to  your  horse-power,  would  it  not? 

A.  If  you  employed  an  engineer  all  the  time  at  $2  a day,  it 
would  be  $600.  It  is  a thing  I should  not  do. 


768 


Testimony  of  B.  W.  C.  Farrington. 


Mr.  Butler.  You  might  have  a superintendant  at  $3,000  a 
year. 

Q.  If  you  had  a twenty  horse-power  engine  in  one  of  those 
mills,  you  would  have  a fireman  competent  to  take  care  of  it? 

A.  I should. 

Q.  I understood  you  differently  before. 

A.  To  run  a twenty  horse-power  engine,  I should  make  one  man 
do  the  whole. 

Q.  Now,  you  said  jrou  saw  no  objection  to  putting  an  engine 
into  any  of  those  mills.  Would  it  not  be  an  objection  in  Mr. 
Faulkner’s  mill? 

A.  It  would  depend  upon  what  kind  of  work  was  being  done. 

Q.  Take  the  finishing  work? 

A.  No,  sir ; in  certain  kinds  of  finishing  it  would  not  interfere 
with  it  at  all. 

Q.  I mean  to  the  help.  Would  it  not  be  an  objection  to  have  a 
steam-engine  in  the  same  room  where  help  were  employed? 

A.  I do  not  see  any  objection  whatever. 

Q.  Is  there  not  a great  deal  of  heat,  making  it  very  uncomfort- 
able? 

A.  That  would  depend  upon  how  near  it  was. 

Q.  Don’t  you  know  of  them  where  they  are  in  the  same  room  ? 

A.  Ob,  yes,  sir. 

Q.  You  would  not  consider  that  an  objection? 

A.  No,  sir ; it  certainly  would  not  be  in  winter. 

Q.  (By  Mr.  Storey.)  Does  it  cost  any  more  for  coal  in  a 
small  engine  than  in  a large  one? 

A.  I should  presume  it  might,  if  you  were  running  a small 
engine  alone ; but  if  you  were  running  it  in  connection  with  other 
works,  as  making  steam  for  dyeing  and  heating,  I am  not  certain 
that  it  would. 

Q.  I mean,  to  make  the  conditions  the  same? 

A.  If  30U  weie  going  to  put  up  an  engine  separately,  outside, 
and  had  nothing  else  to  do  with  it  but  to  furnish  power,  I should 
suppose  it  would  cost  more. 

Q.  Making  the  conditions  the  same  for  a large  engine  and  a 
small  one,  does  it  take  more  coal  per  horse-power  to  run  the 
small  engine  than  it  does  the  large  one  ? 

A.  It  would  depend  upon  what  the  conditions  were. 

Q.  Supposing  that  you  are  doing  nothing  but  running  an 
engine? 

A.  I should  suppose  it  would  cost  more  to  run  a small  one. 

Q.  Do  you  know  in  what  proportion  ? 

A.  No,  sir. 

Q.  Was  your  statement  about  the  number  of  pounds  drawn 
from  }rour  experience  with  the  engines  you  run  in  your  mill? 

A.  Yes,  sir. 

Re-direct. 

Q.  (By  Mr.  Butler.)  The  “ Corliss  ” is  thought  to  be  the  best 
engine,  is  it  not? 


Testimony  of  Clemens  Herschel. 


769 


A.  It  is  as  good  as  any.  I think  it  is  the  best. 

Q.  (By  Commissioner  Stevens.)  What  is  the  exhaust  steam- 
pressure  on  your  engine?  How  much  does  it  vary  from  the  direct? 

A.  Well,  it  is  between  two  and  four  pounds,  as  nearly  as  I can 
get  it. 


Clemens  Herschel,  sworn. 

Q.  (By  Mr.  Butler.).  What  is  your  business? 

A.  Civil  engineer. 

Q.  Whether  you  have  given  attention  to  hydraulic  engineering? 

A.  Yes,  sir. 

Q.  How  many  years  have  you  been  in  the  business? 

A.  I have  been  in  the  business  eighteen  years. 

Q.  You  were  employed  at  Lowell  at  one  time  on  the  locks  and 
canal  works? 

A.  I have  several  times  been  there  for  periods  varying  from  a 
couple  of  months  to  a couple  of  weeks. 

Q.  You  studied  your  profession  for  some  time  in  Germany, 
didn’t  you  ? 

A.  Yes,  sir  ; I graduated  at  the  Scientific  School  in  Cambridge, 
and  studied  for  three  years  in  Germany  and  for  six  months  in 
France. 

Q.  You  are  now  in  the  emplo}r,  and  have  been  for  some  time, 
of  the  City  of  Boston  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  Shattuck.)  In  this  matter,  you  mean? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  Whether  at  any  time  you  were  emplo}md 
to  make  estimates  and  plans  for  the  widening  of  the  canal  at  the 
Wamesit  dam  at  Lowell? 

A.  Yes,  sir,  I have. 

Q.  When  was  it? 

A.  1‘find  that  I made  the  plans  in  1869. 

Q.  When  was  the  work  begun  under  them? 

A.  Well,  I have  not  looked  up  my  notes  sufficiently  to  be  abso- 
lutely positive ; but  I think  it  was  about  the  same  time. 

Q.  And  the  work  continued  for  upwards  of  two  seasons,  didn’t  it  ? 

A.  I believe  it  did. 

Q.  Have  you  the  plan  of  the  sections  of  the  canal  ? 

A.  I haven’t  them  here, — not  the  cross  sections. 

Q.  Didn’t  you  have  them  here  yesterday  or  the  day  before? 

A.  No,  sir  ; I had  the  results. 

Q.  What  amount  of  water  was  that  canal,  according  to  your 
plans,  to  be  widened  and  deepened,  so  as  to  carry  when  the  water 
was  at  the  top  of  the  stone  dam  ? 

Mr.  Shattuck.  What  is  your  question  ? 

Mr.  Butler.  This  gentleman  made  the  plan  by  which  we  did 
the  w'ork,  and  it  has  already  been  proved  by  both  Mr.  Farrington 
and  another  witness  that  he  did  widen  and  deepen  it. 

Mr.  Storey.  I understand  the  question  to  be,  “IIow  much  was 
it  intended  to  widen  it?” 


770 


Testimony  or  Clemens  Herschel. 


Mr.  Butler.  Yes,  sir,  — how  much  he  made  the  plans  to  widen 
and  deepen  it? 

Mr.  Storey.  It  might  be  objectionable  in  one  sense.  It  de- 
pends upon  what  it  is  followed  up  by. 

Mr.  Butler.  We  cannot  show  both  the  plan,  and  the  work  at 
the  same  time. 

Mr.  Storey.  You  can  say  whether  you  expect  to  show  both. 

Mr.  Butler.  I am  going  to  show  the  plan  and  then  put  in  the 
work  afterwards. 

Mr.  Shattuck.  If  they  are  going  to  show  how  much  they  have 
widened  according  to  those  plans,  and  do  show  it,  then  I shall  not 
object. 

Mr.  Butler.  I think  I can  help  you  a little  with  this  business. 

Mr.  Shattuck.  The  question  is  whether  your  evidence  is  le- 
gally admissible  ; and  we  object  to  it  unless  you  propose  to  show 
as  I stated. 

Commissioner  Russell.  The  question  is  objected  to. 

Mr.  Shattuck.  Until  he  states  that  he  expects  to  show  that  it 
was  widened  according  to  those  plans.  I shall  object  to  the  plans 
going  in  unless  he  does. 

Mr.  Butler.  I propose  to  show  first  that  the  gentleman  was 
called  upon  to  make  the  plans  and  estimates  for  widening  the  canal. 
He  was  then  called  upon  to  superintend  the  making  of  plans  for 
the  contractor  to  widen  it,  — as  superintendent  of  the  work.  The 
contractor  went  on  until  he  failed,  and  then  we  finished  it  by  the 
day’s  work. 

Mr.  Shattuck.  Was  it  according  to  these  plans? 

Mr.  Butler.  We  had  no  others.  If  they  did  not  finish  it 
according  to  the  plans,  they  made  a mistake. 

Mr.  Storey.  The  value  of  the  evidence  would  be  one  thing, 
and  the  competency  of  it  another. 

Commissioner  Russell.  The  fact  that  the  witness  made  the 
plans  for  the  widening,  has  no  value  unless  it  is  followed  by  evi- 
dence that  the  plans  were  adopted.  I understand  that  td  be  the 
offer  that  General  Butler  makes. 

Mr.  Shattuck.  If  he  will  say  that  directly,  then  I will  with- 
draw my  objection. 

Mr.  Storey.  I understand  the  offer  to  be  this : — That  Mr. 
Herschel  made  certain  plans,  and  that  a contract  was  made  to 
widen  the  canal  in  accordance  with  those  plans,  and  afterwards 
the  contractor  went  on  and  did  some  work  and  then  failed,  and 
thereupon  they  went  on  and  finished  the  work  according  to  the 
plans.  Now,  a contractor  may  undertake  to  work  according  to 
plans,  and  may  fail  Jo  work  according  to  those  plans.  If  they 
propose  to  show  that  that  canal  was  actually  widened  and  deep- 
ened in  a certain  way,  and  that  those  plans  represent  it,  that  is 
one  thing.  It  is  all  open  for  them  perhaps  to  show  that  an 
attempt  was  made  to  carry  them  out,  but  that  is  another  thing. 

Commissioner  Russell.  If  the  plans  were  not  carried  out  they 
go  for  nothing. 

Mr.  Butler.  It  will  not  hurt  you  any  if  we  never  struck  a 
blow. 


Testimony  of  Clemens  Herschel. 


771 


Mr.  Richardson.  Does  the  plan  aid  at  all,  — if  proven?  It  is 
what  was  done;  that  is  a fact  that  must  be  proved  independently. 
The  fact  that  the  plan  was  made  does  not  at  all  tend  to  prove 
what  was  done. 

Mr.  Butler.  If  we  should  show  that  we  worked  there,  it 
would  be  possible  to  show  how  much  we  did  do  without  the  plan. 

Commissioner  Russell.  I understand  Gen.  Butler  to  say  that 
he  worked  according  to  the  plan. 

Mr.  Storey.  The  evidence  introduced  yesterday  that  it  was 
widened  and  deepened  was  certainly  not  evidence  that  it  was 
according  to  any  plan. 

Mr.  Butler.  Wre  made  a plan.  Men  generally  do  a thing 
according  to  some  plan  or  system. 

Mr.  Storey.  I have  known  a great  many  such  cases  where 
plans  were  not  made. 

Commissioner  Russell.  He  offers  to  prove  that  the  canal  was 
widened  and  deepened  according  to  a plan,  such  as  was  made. 
If  that  is  not  so,  the  evidence  should  be  stricken  out. 

Mr.  Storey.  Do  I understand  that  Gen.  Butler  proposes  to 
show  that  the  canal  was  widened  and  deepened  according  to  the 
plans  ? 

Commissioner  Russell.  I understand  that  he  does.  If  that  is 
a misunderstanding,  I should  say  that  the  evidence  given  in 
regard  to  the  plans  should  be  stricken  out. 

Mr.  Butler.  I don’t  know  whether  it  was  done  according  to 
the  plans.  I know  he  expected  to  have  it  done  according  to  the 
plans.  I want  to  be  perfectly  fair.  I cannot  say  that  they  suc- 
ceeded. We  began,  and  worked  awhile  exactly  according  to  the 
plans,  and  quarrelled  with  our  contractor  because  we  thought  he 
slighted  the  work. 

Mr.  Storey.  If  he  can  say  that  it  was  widened  and  deepened 
according  to  the  plan,  it  is  competent. 

Mr.  Shattuck.  As  I understand  the  statement  of  Gen.  Butler, 
he  does  not  say  that  it  was  widened  according  to  that  plan.  The 
inference  from  his  language  is  that  it  was  not. 

Commissioner  Russell.  We  will  go  on,  gentlemen,  and  see 
what  it  was. 

Mr.  Butler.  I must  depend  upon  the  evidence. 

Q.  Did  you  make  plans  for  that  work,  taking  the  water  at  a 
certain  height? 

A.  I designed  the  canal  to  carry  — 

Q.  (By  Mr.  Shattuck.)  [Interrupting.]  That  is  not  an 
answer.  Did  you  go  on  and  design  a plan? 

A.  I did. 

Q.  (By  Mr.  Butler.)  Now,  a plan  of  what  capacity  of  canal 
did  you  make? 

Q.  (By  Mr.  Storey.)  Is  the  plan  here? 

A.  I have  said  that  it  was  not. 

Q.  (By  Mr.  Butler.)  Have  you  got  the  notes  from  which 
3'ou  made  the  drawing? 

A.  I have  here  the  capacity  that  I designed  the  canal  to  carry, 
and  I staked  it  out  on  the  ground. 


772 


Testimony  of  Clemens  Herschel. 


Q.  You  staked  it  off  on  the  ground  ? 

A.  I would  say  that  the  plans  I have  would  not  throw  a particle 
of  light  on  the  question. 

Mr.  Storey.  The  best  evidence  to  prove  that,  is  the  plan  itself. 

Mr.  Shattuck.  It  is  very  important,  because  we  ma}'  want  to 
contradict  it,  and  show  that  it  was  not  in  accordance  with  it. 

Commissioner  Russell.  If  the  plan  is  within  the  control  of 
the  witness  it  must  be  produced,  I think. 

Mr.  Butler.  Exactly.  I have  asked  him  to  produce  it.  I was 
prevented  from  going  on  bjr  this  cibattis  of  objections. 

Mr.  Shattuck.  When  you  go  on  regularly  there  will  be  no 
abattis. 

The  Witness.  I cannot  produce  the  plans  that  we  worked  from 
at  that  time.  I have  certain  cross  sections  of  it.  I cannot  pro- 
duce all  the  plans  that  we  worked  from  eight  years  ago.  They 
passed  from  my  hands,  and  perhaps  they  are  in  the  possession  of 
the  Wamesit  Power  Company.  I have  a few  cross  sections  only. 
I have  my  letter-press  copy  of  the  contract,  and  I have  exactly 
the  capacity  of  that  canal,  under  certain  conditions.  That  is 
exactly  what  I have  stated. 

Q.  (By  Mr.  Butler.)  You  said  }tou  were  called  upon  to  make 
a plan  of  some  widening  and  deepening  of  the  canal.  According 
to  your  plan  and  estimate  for  the  widening  and  deepening  of  the 
canal,  what  amount  of  water  was  it  to  carry? 

Mr.  Storey.  That  we  object  to. 

Mr.  Shattuck.  We  make  no  objection  to  his  stating  that  if  the 
canal  were  of  a certain  width  and  depth  it  would  carry  a certain 
amount  of  water ; but  the  fact  that  he  made  certain  plans,  con- 
tracts, and  things  of  that  sort,  which  he  does  not  produce,  is  of  no 
consequence  whatever.  It  is  obvious  that  the  only  question  here 
is,  how  much  width  and  how  much  depth  will  carry  a certain 
amount  of  water? 

Commissioner  Russell.  That  appears  by  the  plans,  if  in 
existence ; and  the  question  what  the  capacity  is  resulting  from 
that  width  and  depth,  with  a given  height  of  water,  he  can  answer. 

Q.  Well,  sir,  I will  put  that  question.  Give  the  width  and 
depth  to  which  you  made  it,  as  near  as  you  can  ? 

Mr.  Shattuck.  That  is  not  the  question,  — the  width  and  depth 
to  which  he  made  it,  — but  what  width  and  depth  would  carry  that 
amount  of  water.  That  we  do  not  object  to,  but  we  object  to  their 
giving  the  impression  that  something  has  been  done  which  was  not 
done. 

Mr.  Butler.  I will  ask  the  commissioners  to  rule  upon  my 
question.  I will  repeat  it.  To  go  back  to  the  beginning : as  a 
skilled  engineer,  were  you  called  upon  to  make  a plan,  and  did 
you  make  a plan,  estimates  and  measurements  to  widen  and 
deepen  the  Wamesit  Canal  to  carry  a certain  amount  of  water? 

A.  Yes,  sir. 

Q.  You  did? 

A.  I did. 

Q.  After  you  made  the  plans  and  estimates,  did  you  stake  out 
and  give  levels  and  widths  for  the  construction  of  the  canal  ? 


Testimony  of  Clemens  Herschel. 


773 


A.  I did. 

Q.  After  you  had  done  that,  were  you  employed  to  make  a con- 
tract with  the  contractor  to  do  the  work  ? 

A.  I did  that. 

Q.  Have  you  that  contract,  or  a letter-press  copy  of  it  ? 

A.  I have  a letter-press  copy  of  it. 

Q.  Was  any  work  done  according  to  that  contract? 

A.  There  was. 

Q.  Did  3rou  superintend  that  work? 

A.  Yes,  sir. 

Q.  Where  did  the  work  begin? 

A.  That  work  began,  I think,  around  Faulkner’s  mill,  and  up 
stream  from  there. 

Q.  It  began  at  Faulkner’s  mill,  and  up  through  the  canal  to  the 
dam? 

A.  Towards  the  head  of  it. 

Q.  At  the  same  time  did  you  make  the  proper  drawings  and 
plans  for  head-gates? 

A.  No,  sir.  I did  liot  make  those. 

Q.  Were  new  head-gates  put  in  about  that  time? 

A.  They  were  put  in  after  that  time.  I was  not  then  there. 

Q.  How  far  was  the  work  done  on  that  canal  under  your  super- 
vision ? 

A.  Well,  I was  there  after  the  contractor  left,  and  superin- 
tended the  taking  out  of  the  rock  section  opposite  the  Bolt  Com- 
pany. That  was  under  another  contract. 

Q.  Were  those  rock  sections  taken  out  according  to  your  plans 
and  directions? 

A.  That  one  opposite  the  Bolt  Company,  I think,  was.  That  is 
my  recollection.  That  was  finished  according  to  my  directions. 

Q.  State  whether  the  canal  required  widening  and  deepening 
through  its  whole  length,  or  only  in  certain  places? 

A.  Through  its  whole  length,  at  least  as  far  as  the  flumes 
under  the  buildings  of  the  Wamesit  Power  Company.  When  I 
sajr  the  whole  length  I don’t  want  to  be  understood  as  meaning 
clear  up  to  the  Bleachery,  but  only  just  by  the  Belvidere. 

Q.  Down  as  far  as  the  Belvidere  mills  ? 

A.  Yes,  sir,  and  a little  further. 

Q.  Now,  will  you  state  how  much  was  the  estimated  capacity  of 
that  canal  according  to  your  plan? 

Mr.  Storey.  I object.  I conceive  that  the  question  before  the 
commissioners  is  just  this : how  much  water  will  that  canal 
carry  ? 

Mr.  Butler.  Yes,  sir. 

Mr.  Storey.  It  is  competent  for  the  defendant  either  to  prove 
by  this  witness  that  the  canal  is  so  wide  and  deep,  in  figures,  to 
his  personal  knowledge,  or  as  an  expert  he  can  say  if  it  is  so  wide 
and  so  deep,  it  will,  in  a certain  stage  of  water,  carry  so  much 
water,  and  that  is  all.  If  he  can  say  that  the  canal  is  so  wide  in 
feet  and  in  inches,  and  so  deep  in  feet  and  in  inches,  and  a canal  so 
wide  and  so  deep  will,  if  the  water  is  at  a certain  height  on  the 
dam,  carry  so  many  cubic  feet  per  second,  that  is  competent  testi- 


774 


Testimony  of  Clemens  Herschel. 


mony  ; or,  if  he  can  assume  a given  case,  and  say  that  a canal  of 
such  capacity,  of  such  size,  of  such  head  of  water,  will  carry  such 
an  amount  of  water,  that  is  a competent  question  to  put  to  him. 
The  question  is  not  what  the  capacity  was  according  to  certain 
plans,  but  what  the  actual  capacity  of  the  canal  is  to-day. 

Mr.  Butler.  And  as  tending  to  show  that,  I want  to  show  what 
was  done,  and  by  and  by  I will  suggest  another  method  of  getting 
at  it  which  you  have  not  mentioned  ; to  wit,  he  has  measured  it. 

Mr.  Storey.  That  I shall  not  object  to  when  it  is  offered. 

Commissioner  Russell.  As  I have  already  ruled,  I consider 
that  his  plan  is  immaterial,  unless  followed  by  testimony  that  the 
plan  was  executed,  and  material  and  admissible  if  it  is  followed  by 
such  testimony. 

Q.  As  far  as  the  contractor  went,  whether  or  not  it  was  executed 
according  to  jrour  plan? 

A.  Yes,  sir  ; it  was. 

Q.  Then  there  was  a second  contract  made,  was  there  not? 

A,  There  was  for  that  rock  section  opposite  the  Bolt  Company. 

Q.  And  that  was  carried  out  according  to  your  plan? 

A.  That  was  carried  out  according  to  my  plan,  I am  pretty 
positive. 

Q.  Then,  whether  or  not  the  remainder  was  executed  by  days’ 
works,  whatever  was  done? 

A.  That  was  done  by  days’  labor.  Mr.  Farrington  superin- 
tended that.  That  was  all  the  rest  of  the  first  contract. 

Q.  Now,  sir,  in  your  judgment  as  an  expert,  what  would  that 
canal  carry  as  far  as  it  was  done  according  to  your  contract,  with 
the  water  at  the  top  of  the  stone  dam  ? 

A.  If  done  according  to  my  contract  — 

Commissioner  Russell.  Not  “if  done  according  to  your  con- 
tract; ” that  is  not  the  question.  Your  question,  Gen.  Butler,  as 
you  put  it,  was,  “ as  far  as  done  according  to  your  contract.” 

Q.  The  question  is  how  much  would  be  the  capacity  of  the 
canal  up  as  far  as  it  was  done  according  to  your  contract?  * 

Mr.  Shattuck.  I do  not  understand  the  meaning  of  that  ques- 
tion. 

Mr.  Butler.  I do  not  see  any  difficulty  in  m}r  question.  A 
canal  consists  of  different  sections,  I suppose,  different  portions  ; 
and  I think  I am  at  liberty  to  prove  that  the  point  between  the 
dam  and  Faulkner’s  was  done  according  to  the  contract ; and  I 
am  now  giving  evidence  tending  to  show  that.  Now,  as  an  expert, 
I ask  him  how  much  that  canal  was  widened  in  the  part  done  ac- 
cording to  the  contract. 

Commissioner  Russell.  As  it  was  actually  done? 

Mr.  Shattuck.  That  may  have  no  significance ; because,  if 
there  was  a part  smaller  above,  the  water  could  not  get  into  it. 

Commissioner  Russell.  If  this  witness  knows  the  dimensions 
of  that  canal  as  they  are,  and  can  give  the  measurements,  I do 
not  see  any  reason  why  the  direct  question  cannot  be  put,  how 
much  the  canal  is  competent  to  carry  as  it  is  now.  There  may  be 
some  reason  which  I do  not  know,  why  that  question  is  not  put, 
but  I must  rule  upon  questions  as  put.  The  question  now  is,  as 


Testimony  of  Clemens  Herschel. 


775 


the  canal  was  constructed,  what  was  its  capacity  ? I suppose  that 
is  admissible. 

A.  I don’t  know  ; I cannot  answer  any  such  question  as  that, 
because  I don’t  know  what  was  above  or  below  it.  It  was 
widened  according  to  my  contract,  to  my  absolute  knowledge,  in 
the  rock  cut  opposite  the  Bolt  Company,  and  it  was  partly  widened 
according  to  my  contract  along  the  rest  of  the  canal ; and  about 
that  time  the  contractor  failed,  and  just  at  that  point,  as  I under- 
stand the  question  to  be,  it  is  what  the  canal  carried  then,  just  at 
that  stage  of  the  proceedings.  That  question  I cannot  answer. 

Q.  Now,  then,  what  was  the  estimated  amount  that  the  canal 
would  carry? 

Mr.  Storey.  To  that  I object. 

Mr.  Butler.  What  a canal  of  a certain  width  would  carry? 

Mr.  Storey.  There  we  come  into  the  region  of  speculation. 

Commissioner  Russell.  The  question  is  admitted,  subject  to 
the  qualification  that  it  is  to  be  followed  by  proof  that  it  was  so 
constructed. 

Q.  I am  now  upon  the  question  how  much  water  a canal  of  the 
width  of  which  you  made  an  estimate  would  carry? 

Mr.  Shattuck.  To  that  1 object.  I do  not  see  any  reason  for 
these  preliminary  questions.  He  asks  what  the  capacity  of  the 
canal  which  he  estimated  was. 

Commissioner  Russell.  That  I rule  to  be  admissible  upon  the 
supposition  that  it  is  to  be  followed  by  proof  of  what  the  estimate 
was  as  to  dimensions,  and  that  they  constructed  the  canal  accord- 
ing to  it. 

Mr.  Shattuck.  The  reason  why  preliminary  questions  are 
admitted  in  this  way,  is  because  it  is  not  reasonably  practicable  to 
put  the  whole  question  in  a proper  form  ; but  in  a case  of  this 
kind,  it  seems  to  me  there  is  no  excuse  for  admitting  any  such 
preliminary  question.  If  he  says  he  is  going  to  showT  it,  let  hint 
incorporate  it  in  the  question,  and  then  we  have  something  definite 
and  something  instructive ; but  as  it  is,  we  have  spent  twenty  or 
twenty-five  minutes,  and  it  comes  to  nothing.  We  stand  just 
where  we  did  in  the  beginning. 

Mr.  Butler.  I suppose  we  do  not  leave  all  our  common-sense 
when  we  get  into  the  trial  of  a case.  Here  is  a company  owning 
a canal,  and  they  undertake  an  outlay  to  widen  and  deepen  it. 
These  mill-owners  have  no  claim  upon  the  company  to  widen,  or 
deepen,  or  alter  it,  upon  any  deeds  put  in.  That  was  a personal 
covenant  of  Mr.  Whipple,  which  died  with  him.  If  there  was  any 
covenant,  they  evidently  did  it  for  the  purpose  of  getting  water 
down  to  their  mill,  which  was  on  the  lower  end  of  the  canal. 
Now,  it  becomes  convenient  for  a third  part}T  to  prove  something 
about  the  capacity  of  the  canal  If  a canal  is  to  be  made  success- 
fully, there  must  be  an  estimate,  then  a contract,  or  work  by  the 
day,  and  then  it  is  to  be  finished  as  well  as  it  may  be.  Now,  it 
becomes  necessaiy,  after  a lapse  of  seven  years,  to  prove  about 
that,  and  it  will  become  still  more  difficult  seven  years  hence,  or  ten, 
or  fifteen,  if  it  ever  comes  up,  and  we  have  to  approximate.  You 
do  not  know  the  reason,  perhaps,  why  I put  the  question.  You  do 


776 


Testimony  of  Clemens  Herschel. 


not  know  who  is  dead,  who  the  living  witnesses  are,  what  the 
troubles  are.  I must  proceed  as  well  as  I can  ; and  the  first  thing 
I want  to  prove,  and  I think  it  is  competent  even  if  I should  stop 
there,  is,  that  there  was  a contract  entered  into  to  make  a canal 
that  would  carry  so  many  feet  of  water,  and  it  would  be  compe- 
tent upon  two  grounds.  It  would  be  an  act  done  by  a party  against 
his  interest.  If  there  was  no  water  there,  owning  the  land,  and, 
in  common  with  those  other  parties,  owning  the  water,  it  would  be 
against  his  interest,  if  there  was  only  two  hundred  feet,  to  go  on 
and  deliberately  make  a canal  that  would  carry  four  hundred  feet, 
for  he  would  be  at  a foolish  expenditure.  It  would  be  like  laj’ing 
down  a four-inch  pipe  to  carry  one  inch  of  water.  It  was  the  act 
of  the  party  then  owning  this  water,  and  I put  it  in  in  answer  to 
the  claim  which  is  made  here  that  nobody  ever  supposed  that 
there  was  more  than  225  cubic  feet  of  water.  It  would  be  compe- 
tent in  that  view  ; but,  without  pressing  that,  I call  your  attention  to 
what  men  are  likely  to  do.  I ask,  first,  what  amount  of  water  would 
the  canal,  according  to  your  estimate,  carry  ? That  is  to  be  followed 
by  the  question,  what  was  your  estimate  of  the  width  and  depth  of 
that  canal  necessary  to  carry  that  amount  of  water?  Leaving  it 
there,  I think  it  would  be  competent,  because  1 put  it  then  in  the 
power  of  my  adversary  to  go  and  see,  for  the  canal  is  there  in 
existence.  The  rocks  have  not  gone,  and  they  can  go  there  and 
measure,  if  they  are  not  satisfied  with  the  proof.  Then  I show 
that  a contract  was  made,  the  work  went  on,  and  the  contractor 
failed.  Then  another  contract  was  made  for  another  section,  and 
carried  out  exactly  according  to  that  plan,  and  I should  argue  to 
reasonable,  sensible  men,  that  the  canal  would  not  be  cleaned  out 
between  Faulkner’s  and  the  dam,  and  then,  the  contractor  failing, 
the  party  would  not  be  likely  to  come  down  here  and  cut  out  a rock 
section  (which  was  very  dear  cutting)  according  to  the  width  of 
the  canal,  and  leave  it  closed  up  between.  I think  that  would  be 
some  evidence  tending  to  show  that  it  was  done.  It  would  con- 
vince me  that,  if  the  men  who  had  the  matter  in  charge  wrere  not 
fools  or  lawyers,  they  would  have  acted  differently  from  that. 

Mr.  Storey.  The  gentleman  has  stated  the  whole  case  precisely 
as  I supposed  it  was. 

Commissioner  Russell.  I will  not  trouble  you,  Mr.  Storey.  If 
that  is  all  that  is  to  be  proved,  I think  the  evidence  is  inadmissi- 
ble. I do  not  think  we  are  to  go  upon  probabilities  as  to  what 
parties  did  in  the  construction  of  a certain  portion  of  this  canal, 
because  it  is  perfectly  plain  that  there  is  better  evidence  than 
probabilities  as  to  what  they  did.  It  is  susceptible  of  proof,  and 
the  proof  is  in  their  hands.  The  best  evidence  of  what  a canal  is, 
is  by  obtaining  proof  as  to  what  it  is,  and  not  by  proving  what 
the  probability  is  as  to  what  men  would  do  there. 

Mr.  Butler.  It  lies  at  the  door  as  much  to  them  as  to  us.  The 
proof  is  not  in  our  hands. 

Commissioner  Russell.  Yes,  sir  ; but  the  point  is  to  be  proved 
by  you,  and  the  testimony  being  in  your  possession,  you  are  to 
produce  it,  as  I originally  stated.  The  fact  that  Mr.  Herschel 
made  a plan  for  the  canal  has  no  tendency  to  show  what  the 


Testimony  of  Clemens  Herschel. 


777 


dimensions  or  capacities  of  the  canal  itself  are  unless  supple- 
mented by  proof  that  the  plan  was  followed  in  the  construction  of 
the  canal. 

Mr.  Butler.  The  trouble  is,  that  the  canal  is  irregular  in  all 
its  parts,  wider  in  some  places  than  in  others ; in  some  places  so 
wide  that  it  will  carry  all  the  water  that  ever  runs  in  the  river, 
and  in  another  part  it  is  narrow.  You  saw  it  yourselves. 

Commissioner  Russell.  All  that  is  matter  of  evidence. 

Mr.  Butler.  If  I have  to  prove  the  width  of  every  section 
and  every  foot,  I cannot  do  it ; therefore,  I will  not  say  that  I 
can  ; but  I think  I can  prove  enough  to  satisfy  any  reasonable 
man,  unless  there  is  some  rule  of  law  that  excludes  it. 

Commissioner  Russell.  The  witness  himself  says  that  he  can- 
not state  what  the  capacity  of  that  canal  is  simply  from  a compu- 
tation of  the  capacity  at  certain  portions  of  it  the  construction  of 
which  he  knows  of  his  own  knowledge.  He  can,  therefore,  state 
the  construction  and  capacity  of  the  canal  in  those  portions  of  it 
to  which  his  knowledge  extends,  and  its  capacity  and  construction 
at  other  portions  must  be  proved  by  other  testimony. 

Mr.  Butler.  Very  well,  I will  try  to  get  one  part. 

Q.  Was  any  portion  of  that  canal  widened  as  you  made  the 
plans  ? 

A.  It  was. 

Q.  What  would  that  portion  carry  when  the  water  at  the  head 
of  the  canal  was  level  with  the  top  of  the  dam , if  the  rest  of  the 
canal  was  of  the  same  capacity  ? How  much  would  the  section 
which  you  know  was  widened  according  to  your  plan  carry  with 
the  water  at  the  head  of  the  canal  level  with  the  top  of  the  dam? 

A.  With  the  water  at  the  head  of  the  canal  at  the  level  of  the 
top  of  the  permanent  dam,  and  drawing  down  six  inches  in  its 
whole  length,  or  rather  four  and  a half  inches  down  to  the  Law- 
rence-street  bridge  (I  take  that  as  the  ruling  point),  it  would 
carry  368  cubic  feet  per  second.  That  was  the  calculation  I made 
at  the  time. 

Q.  Now,  sir,  whether  you  have  been  employed  as  an  engineer 
to  measure  the  amount  of  water  which  the  canal  did  carry  after- 
wards ? 

A.  Yes,  sir. 

Q.  When? 

A.  I measured  it  in  March  of  this  year,  March  20th,  in  the 
afternoon. 

Q.  At  the  request  of  an  opponent  in  a law-suit  of  the  Wamesit 
Power  Company? 

A.  Yes,  sir. 

Q.  How  much  did  you  find  then  actually  running  in  the  canal? 

A.  There  was  running  382  cubic  feet  per  second. 

Q.  How  much  was  the  head  down  at  that  time  at  the  bridge? 

A.  Down  to  the  Lawrence-street  bridge  from  the  head-gates 
there  was  a fall  of  .574  of  a foot.  I averaged  it  during  the 
time  of  the  gauging.  It  fluctuated  a little,  but  that  is  the  true 
average. 

Q.  Over  what  space  of  time  did  that  measurement  continue? 


778 


Testimony  of  Clemens  Herschel. 


A.  I commenced  at  2.25  P.  M.,  March  20,  1876,  and  it  ended 
at  5.12  P.  M.,  March  20,  1876. 

Mr.  Butler.  It  may  be  convenient  to  know  that  on  March  20, 
1876,  it  was  running  six  inches  over  the  dam  by  Tilton’s  measure- 
ments. 

Mr.  Shattuck.  That  morning  it  was  six  inches,  and  the  next 
morning  it  was  seventeen.  Let  us  see  when  the  rainfall  was. 

Witness.  I think  I ought  to  call  attention  to  the  fact  that  my 
gauges  were  taken  inside  the?head-gates. 

Q.  And  the  water  is  controlled  in  that  canal,  like  others,  I 
suppose,  by  head-gates? 

A.  Yes,  sir. 

Q.  So  that  was  the  height  of  the  water  in  the  canal,  and  not 
the  height  of  the  water  in  the  river? 

A.  Yes,  sir. 

Q.  What  was  the  case'in  connection  with  which  you  made  that 
measurement? 

A.  The  Lowell  and  Andover  Railroad  against  the  Wamesit 
Power  Company. 

Q.  Now,  Mr.  Herschel,  did  you  take  it  any  other  day? 

A.  I never  completed  any  other  measurement.  I think  I went 
up  there  once,  but  something  interfered. 

Q.  (By  Mr.  Child.)  Mr.  Herschel,  you  have  measured  the 
Concord  river,  have  you  ? 

A.  Yes,  sir. 

Q.  Will  you  refer  to  j^our  map  and  explain  how  you  took  the 
measurements  as  to  the  accuracy  of  them,  taking  the  measure  of 
Concord  river  at  Massic  Falls? 

A.  This  black  line  represents  the  average  discharge  in  cubic 
feet  per  second  at  Massic  Falls  dam,  at  Lowell,  every  twenty-four 
hours,  beginning  on  Juty  6,  1876,  and  ending  September  24,  1876. 
It  was  taken  night  and  dajr ; and  each  average  for  the  twenty-four 
hours  down  on  this  plot  is  the  average  of  48  half-hourly  gaugings. 

Q.  What  is  the  part  of  this  black  line  which  is  dotted? 

A.  From  the  17th  of  August  down  to  the  23d  of  August, 
inclusive,  owing  to  the  rebuilding  of  the  Massic  dam,  we  were 
unable  to  take  the  gauges,  and  the  dotted  line  is  an  interpolation 
for  those  days  made,  according  to  my  best  judgment,  from  what  I 
saw  of  the  working  of  the  river  the  rest  of  the  time.  Up  to  this 
interpolation  period,  commencing  August  17,  the  water  was  flow- 
ing partly  over  a dam,  and  partly  through  a flume.  After  that 
time,  it  was  wholly  over  a dam  that  I had  fitted  with  flash-boards, 
made  in  correct  shape,  the  shape  of  a weir,  and  a box  and  hook 
gauge  to  take  the  heights. 

Q.  Were  those  measurements  made  according  to  your  best  skill 
and  judgment  as  an  engineer? 

A.  They  were  made  as  carefully  as  I could  make  them  in  that 
place,  and  with  those  materials. 

Q.  Now,  as  to  the  flow  of  the  Concord  river,  what  is  the  char- 
acter of  it? 

A.  The  Concord  river  during  that  period  showed  several  pecu- 
liarities. It  was  very  sensitive  to  the  shutting  down  and  opening 


Testimony  of  Clemens  Herschel. 


779 


of  the  mills.  Evbry  night-time  the  flow  would  fall  down  very 
low,  sometimes  as  low  as  20  cubic  feet  per  second  for  several 
hours,  — the  whole  flow  of  the  river.  I have  here  the  gauges 
which  I took  three  weeks  — representative  weeks.  One  is  from 
July  7th  to  July  13th  ; one  from  August  3d  to  August  9th,  and 
the  other  from  September  10th  to  September  16th,  which  show  the 
maximum  and  minimum  flow  in  twelve  hours.  The  maximum  is 
from  6.30  A M.  to  6.30  P.  M.  ; the  minimum  from  6.30  P.  M.  to 
6.30  A.  M.,  the  day  following.  I have  shown  there  the  maximum 
and  minimum  for  each  of  those  days.  If  it  runs  350  cubic  feet 
per  second  in  the  daytime,  at  night  it  will  not  run  more  than  50 
or  60.  There  was  but  very  little  waste  at  night  the  first  three 
weeks,  and  then  when  that  freshet  came,  July  31st,  it  began  to 
waste  nights,  and  continued  to  run  about  even  in  the  day  until 
about  August  9th.  August  9th,  for  example,  the  average  for  the 
24  hours  was  380  cubic  feet  a second,  and  the  average  for  12 
hours  of  the  day  was  414.9.  The  minimum  for  12  hours  was 
320.5.  Up  to  that  time,  the  river  was  uniformly  falling.  After 
the  freshet,  it  fell  night  and  day.  After  that  time,  the  condition 
of  things  was  that  in  the  evening  the  river  would  be  drawn  down  a 
little,  and  then  during  the  night  it  would  begin  to  rise,  the  water 
all  the  time  wasting.  That  stage  continued  until  August  24th. 
Then  we  got  down  to  the  ordinary  run  of  the  river  again.  Then 
the  average  was  1 50  cubic  feet  per  second  for  the  24  hours,  and 
the  maximum  for  12  hours  would  be  about  180.  I say  u about.” 
After  that  day,  I have  not  calculated  except  from  my  eye  on  the 
plot  of  it.  The  minimum  for  12  hours  was  70  cubic  feet  per 
second.  So  that  when  they  were  using  180  cubic  feet  per  second 
during  the  day,  they  were  wasting  70  at  night.  Some  such  pro- 
portion as  that  it  would  be  all  through.  [Witness  presented  table 
marked  u C.  H.  1.”] 


780 


Testimony  of  Clemens  Herschel. 


“C.  H.  1 S’ 

Concord  River  Gaugings.  — 1876. 


Day  of  Week. 

Day  of  Month. 

Cubic  feet 
Max. 

12  hours’  flow. 
6.30  A.  M.  to 
6.30  P.  M. 

per  Second. 

Min. 

12  hours’  flow. 
6.30  P.  M.  to  suc- 
ceeding 6.30  A.  M. 

Friday 

July 

7 

145.5 

79.8 

Saturday 

ii 

8 

139.0 

58.5 

Sunday  

a 

9 

32.0 

42.0 

Monday 

a 

10 

200.0 

80.0 

Tuesday 

a 

11 

184.0 

80.5 

Wednesday 

a 

12 

176.0 

110.5 

Thursday 

“ 

13  ....  . 

110.2 

84.5 

Thursday 

Aug. 

3 

758.0 

723.5 

Friday 

ii 

4 

740.0 

677.1 

Saturday 

ii 

5 

669.8 

604.9 

Sunday  

ii 

6 

568.5 

621.5 

Monday 

ii 

7 

508.0 

446.0 

Tuesday 

ii 

8 

454.7 

376.0 

Wednesday 

ii 

9 

414.9 

820.5 

Sunday  

Sept. 

10 

51.0 

85.5 

Monday 

“ 

11 

224.1 

63.5 

Tuesday 

a 

12 

202.1 

50.9 

Wednesday 

a 

13 

155.5 

61.0 

Thursday 

a 

14 

141.1 

71.5 

Friday 

a 

15 

173.2 

77.8 

Saturday 

a 

16 

134.2 

49.5 

One  cubic  foot  per  second  on  an  eleven-feet  dam  gives  a little  less  than  nine-tenths  of  a 
horse-power. 

Q.  What  was  the  effect  of  the  rainfall  upon  Concord  river 

during  your  examination  ? 

A.  This  represents  a summer  period.  The  rainfall  ordinarily 
has  very  little  effect.  The  blue  lines  represent  the  average  rainfall 
on  the  whole  water-shed  above  the  dam.  I have  compiled  it  from 
the  records  at  South  Framingham,  at  Lake  Cochituate,  at  Con- 
cord, and  at  Lowell,  on  the  day  it  fell.  I have  averaged  it  for  the 
whole  drainage  area.  Sometimes  there  would  be  a rainfall  at  one 
place  when  there  would  be  none  at  another,  or  more  at  one  place 
than  another,  and  I have  averaged  it  to  represent  the  rainfall  on 


Testimony  of  Clemens  Herschel. 


781 


the  whole  district.  Here  is  a rainfall  of  three-quarters  of  an  inch, 
and  the  next  day  one  of  eight-tenths  of  an  inch,  and  it  has  hardly 
any  appreciable  effect.  It  was  followed,  three  days  after,  by 
another  four-tenths  of  an  inch.  The  rainfalls  I have  just  spoken  of 
occurred  July  10th,  11th,  and  14th.  Then  there  were  rainfalls  on 
the  17th,  19th,  and  20th.  On  the  23d  of  July  we  have  a rainfall 
of  very  nearly  two  inches  — 1.95. 

Q.  What  effect  did  that  have,  if  any? 

A.  That  had  hardly  any  effect  upon  the  river,  simply  because  the 
ground  was  dry  and  drank  it  all  up.  But  just  about  a week  from 
that  time  we  had  a rainfall  of  3.74,  and  that  is  what  made  the 
freshet,  coming  on  top  of  the  soaking  of  the  week  before. 

Q.  Will  you  explain  a little  more  fully  the  reason  for  the  differ- 
ence between  the  effect  on  the  river  of  the  second  and  the  first 
rainfall  ? 

A.  A good  shower  of  1.95,  nearly  two  inches,  on  the  23d  of 
July,  had  hardly  any  effect  on  the  Concord  river  for  the  whole 
week  following  ; but  that  rainfall  soaked  the  ground  sufficiently  so 
that  another  one  coming  on  top  of  it  the  week  after,  of  nearly 
three  and  three-quarters  inches,  on  the  30th  and  31st  of  July,  made 
a freshet,  and  ran  the  river  over.  It  is  not  shown  on  this  plot,  but 
the  night  that  rain  commenced  the  river  was  down  to  20  cubic  feet 
per  second.  They  stopped  all  the  mills,  and  the  rainfall  ran  it  up 
to  733  cubic  feet  per  second,  on  the  average,  within  four  da}^s,  and 
then  from  there  it  fell  two  weeks  and  more  until  it  got  to  its  or- 
dinary state  again. 

Q.  Now,  will  you  state  whether  as  an  item  of  power  in  manu- 
facturing, you  can  calculate  the  average  flow  of  the  river  on  this 
map  from  the  6th  of  July  to  the  24th  of  September? 

A.  Yes,  sir ; I could  calculate  what  the  average  flow  was. 

Q.  I don’t  mean  that,  but  what  would  be  its  advantage  as 
power  in  the  mills  on  the  streams? 

A.  It  wouldn’t  show  what  you  could  use  there,  in  any  sense  of 
the  word. 

Q.  So  that  the  average  taken  through  the  summer  months,  or 
through  the  year,  does  not  show  the  power  that  is  furnished  to  the 
mills  during  the  dry  seasons? 

A.  It  would  show  probabty  fully  double  the  water  they  can  use. 

Q.  Is  the  average  rainfall  of  one  month  of  any  value? 

A.  None  at  all. 

Q.  Will  the  average  by  weeks  give  it? 

A.  Worse  yet.  The  shorter  the  period,  the  less  it  would  show 
the  portion  that  the  mills  could  use.  If  it  was  fifty  years  it  would 
show  something. 

Q.  Will  you  illustrate  this  point,  that  the  average  is  of  no 
value  whatever? 

A.  Take  this  rainfall  here  of  two  inches.  One  would  calculate 
from  that  that  it  would  produce  a great  deal  of  water ; but  practi- 
cally, for  a whole  week  following,  it  had  hardly  an  appreciable 
effect  on  the  river.  And  this  three  and  three-quarters  inches  of 
rainfall  on  the  31st  of  July  would  show  a very  large  quantity,  and 
it  did  produce  a large  quantity,  but  it  did  no  good  to  the  mill- 
owners  : it  could  not  be  held.  It  all  went  away,  night  and  day. 


782 


Testimony  of  Clemens  Herschel. 


Q . Is  an  average  estimate  from  the  rainfall  of  any  district  for  a 
year,  or  for  a month,  or  for  a week,  of  any  value,  or  can  it  be  re- 
lied upon  as  power  for  the  mills  upon  that  stream? 

A.  It  cannot  be  relied  upon. 

Q.  Can  the  rainfall  upon  a water-shed  be  calculated  exactly  as 
to  the  amount  of  water  produced  in  the  stream  which  can  be  used 
by  mills? 

A.  No,  sir. 

Q.  And  why  not? 

A.  The  distribution  of  the  rainfall  is  a matter  of  the  greatest 
importance.  Whether  one  rainfall  follows  right  after  another,  or 
at  longer  intervals,  and  in  dry  months  or  wet  months,  and  the 
amount  of  storage  there  is  on  the  stream,  and  how  that  storage 
operates  — all  these  are  points  that  have  to  be  taken  into  closest 
consideration.  Practically,  nothing  tells  the  story  so  conclusively 
as  absolute  measurements  and  observations  on  the  stream. 

Q.  Now,  will  you  explain  the  flow  of  the  river  in  the  day  and 
the  waste  at  night,  and  the  use  by  da}?1  ? 

A.  That  table  shows  it  for  three  weeks.  I have  calculated  the 
average  there.  I have  the  records,  of  course,  for  every  half-hour 
during  that  whole  time. 

Q.  (By  Mr.  Richardson.)  What  do  you  mean  by  “ they,” 
when  you  say  they  were  wasting  70  cubic  feet  per  second  at 
night? 

A.  I don’t  remember  just  my  expression,  but  it  must  have  re- 
ferred to  the  mill-owners  above.  I used  that  expression  simply  be- 
cause the  rule  is,  that  mill-owners  who  work  during  the  daytime 
do  nothing  at  night ; and  if  you  see  water  running  at  night,  the 
thought  is  that  it  is  being  wasted.  Sometimes  it  was  wasted,  be- 
cause nobody  on  the  Concord  river  could  use  it. 

Q.  It  was  water  that  could  not  be  used  in  the  daytime? 

A.  It  was  water  that  was  not  used  in  the  daytime. 

Q.  (By  Mr.  Child.)  Now,  Mr.  Herschel,  what  is  the  yellow 
line  on  this  map? 

A.  The  yellow'  line  on  this  map  shows  the  flow  of  Sudbury  river 
as  measured  by  the  city  of  Boston,  simultaneously  with  these 
gauges  of  the  Concord. 

Q.  What  did  you  have  to  do  with  this  yellow  line? 

A.  I plotted  this  line  from  notes  given  me  by  Mr.  Fteley. 

Q.  Now,  what  is  the  relative  flow  of  the  Sudbury  and  Concord 
rivers  in  the  dry  season  according  to  these  profiles? 

A.  It  is  about  one  to  ten. 

Q.  That  is,  the  Sudbury  river  furnishes  at  Massic  dam  one- 
tenth  of  the  flow  of  the  Concord  river  according  to  this  plan? 

A.  No,  sir ; I don’t  say  that.  I say  the  Sudbury  river  up 
country  furnishes  about  one-tenth  of  what  flows  into  the  Concord. 

Q.  (By  Commissioner  Russell.)  The  Sudbury  is  measured 
and  represented  by  the  measurements  on  this  plan  as  one-tenth  of 
the  flow  of  the  Concord,  as  shown  by  this  plan  — that  is  what  you 
mean? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  Suppose  the  flow  of  the  Sudbury  at 


Testimony  of  Clemens  Herschel. 


783 


South  Framingham  to  be  represented  by  the  yellow  line,  then  that 
flow  would  be  about  one-tenth  in  volume  of  what  went  over  Massic 
Falls? 

A.  Yes,  sir. 

Q.  The  flow  of  Sudbury  river  was  equal  to  one-tenth  of  what 
went  over  the  dam  at  Massic  during  the  same  time? 

A.  The  difficulty  is,  that,  during  all  this  time,  there  was  some 
Sudburv-river  water  that  went  down,  and  some  of  it  went  to  the 
City  of  Boston,  and  the  black  line  shows  just  as  it  was  gauged. 
It  includes  some  of  the  Sudbury,  but  not  all  of  it ; and  in  that 
way  that  is  about  a tenth. 

Q.  In  other  words,  the  Sudbury  river  furnishes,  instead  of  one- 
fifth,  as  has  has  been  stated,  in  a dry  season,  only  one-tenth  of  the 
water  in  Concord  river? 

A.  The  relation  between  the  two  would  be  shown  by  the  3’ellow 
and  red  lines.  The  red  line  shows  the  Sudbury  added  to  the 
Concord. 

Q.  That  is,  if  I understand  it,  if  you  assume  that  all  the  water 
that  was  measured  in  the  Sudbury  in  Framingham  went  into  the 
Concord,  then  you  would  have  an  addition  at  the  Concord  of  the 
black  line  to  the  red  line? 

A.  Yes,  sir. 

Q.  (By  Mr.  Child.)  Now,  will  you  tell  us  why  the  flow  of  a 
large  stream  and  of  a small  stream  do  not  compare  with  the  water- 
sheds of  the  two  streams? 

A.  It  is  very  clear  to  my  mind,  but  I don’t  know  that  I can 
make  it  clear  to  others.  A large  river  is  a large  river  simply  be- 
cause it  is  in  a very  low  situation  with  respect  to  its  surroundings. 
It  is  low  down,  and  therefore  it  catches  more  water  from  the  sur- 
face and  from  underground  streams.  A small  river  is  a small 
river  because  it  is  high  up,  and  does  not  catch  so  much  water  on 
the  surface  nor  from  underground  streams.  These  underground 
streams  feed  large  rivers  much  more  than  they  do  small  rivers,  on 
the  upper  parts  of  a water-shed.  They  catch  a good  many  more  of 
them,  and  hence  feel  them  more.  It  is  an  actual  fact,  that  large 
rivers  near  the  sea  have  been  wholly  diverted  by  dams,  and  yet 
within  three  or  four  miles  they  would  appear  again  out  of  the 
ground,  being  fed  by  those  underground  steams.  In  the  small 
rivers  produced  in  the  upper  parts  of  water-sheds,  no  such  fact 
appears.  The  underground  streams  there  are  so  small  in  quantity, 
that  they  cannot  get  above  the  surface,  or  else  they  have  gone 
further  down,  and  feed  larger  streams.  The  consequence  of  this 
is,  that  streams  in  the  upper  parts  of  drainage  areas,  high  up,  dry 
up  completely  in  the  summer,  where  no  such  thing  is  possible  in  a 
larger  river ; and  as  these  gauges  refer  to  just  those  dry  times, 
they  show  just  that  fact,  — that  the  larger  river  furnishes,  in  pro- 
portion to  its  water-shed,  much  more  water  than  the  small.  I don’t 
know  whether  I have  made  it  clear  ; but  it  is  clear  to  my  mind,  and 
has  been  for  some  time,  that  these  upper  parts  of  water-sheds  are 
not  so  prolific  in  water  as  the  low  parts  near  the  ocean. 

Q.  (By  Mr.  Butler.)  But  in  a wet  time,  you  would  not  expect 
to  find  that  difference  ? 


784 


Testimony  of  Clemens  Herschel. 


A.  In  a wet  season,  the  smaller  ones  go  down  all  at  once.  They 
are  quicker  streams  nearer  the  head  ; lower  down  they  are  more 
regular.  The  Mississippi  is  one  of  the  most  regular  streams. 

Q.  That  is,  the  upper  Mississippi  wTould  rise  and  fall  very 
rapidly,  while  the  lower  Mississippi  would  be  hardly  affected  ? 

A.  It  would  change  very  slowly.  I want  to  say  another  thing 
to  illustrate  it  further  : that,  if  we  could  suppose  Sudbury  river  to 
be  deepened  100  feet,  the  whole  valley  of  the  river  sunk  100  feet,  it 
would  yield  more  water.  It  would  catch  more  of  the  under-flow, 
which  now  goes  elsewhere.  That  illustrates  the  value  of  having  a 
r iver-bed  not  too  high  above  the  level  of  the  sea. 


Cross-examination . 

Q.  (By  Mr.  Shattuck).  Don’t  you  know  that  it  was  ver}’- 
much  dryer  in  the  early  part  of  the  season  in  the  southerly  part  of 
Massachusetts  than  in  the  northerly? 

A.  I don’t  know  any  such  fact,  though  it  may  be  so. 

Q.  Probably  that  is  so,  is  it  not,  from  what  you  saw  of  the 
Sudbury  and  Concord  rivers? 

A.  I know  nothing,  except  from  the  record  of  the  Concord 
water-shed. 

Q.  Is  not  the  best  test  of  the  value  of  a stream  the  amount 
of  its  water-shed?  That  is  one  measure  depended  on,  is  it  not? 

A.  I should  say  that  is  the  chief  factor.  There  are  several, 
and  that  is  one  of  them  ; the  principal  one,  I think. 

Q.  Will  you  state  what  quantity  of  water  was  running  in  Con- 
cord river  on  the  10th  of  August  at  half-past  eight  in  the  morning, 
at  Massic  Falls  ? 

A.  The  10th  day  of  August  was  Thursday.  At  half-past  eight 
in  the  morning  (it  varies  very  much  about  that  point  of  time ; it 
is  going  up  very  livety)  it  was  about  415  cubic  feet  per 
second. 

Q.  How  wide  is  the  Wamesitdam?  How  long  is  the  space  over 
which  the  water  runs? 

A.  I don’t  know  that ; it  is  a zig-zag  dam. 

Q.  How  long  should  you  say  it  was? 

A.  I should  not  guess  at  all. 

Q.  Flow  long  should  you  think  it  was?  You  must  have  a judg- 
ment about  it? 

A.  I haven’t  any  judgment  about  it.  I haven’t  any  opinion.  It 
is  a zig-zag  dam. 

Q.  Can’t  you  tell  whether  it  is  500  feet  long  or  not? 

A.  Well,  sir,  I can’t  tell.  I don’t  guess  at  a thing ^which  is  a 
subject  of  measurement ; I make  it  a rule  not  to. 

Q.  Is  it  as  much  as  200  feet? 

A.  1 don’t  know. 

Q.  Should  you  say  it  was  over  fifty? 

A.  Yes,  it  is  over  fifty. 

Q.  Over  one  hundred  ? 

A.  I guess  it  is. 

Q.  Over  two  hundred? 


Testimony  of  Clemens  Herschel. 


785 


A.  I don’t  know. 

Q.  How  muck  water  will  run  over  a dam  200  feet  long,  when 
the  water  is  six  inches  deep  running  over  it? 

A.  That  I don’t  know. 

Q.  Can’t  you  tell  approximately? 

A.  No,  sir.  If  you  will  give  me  time  I think  I can  figure  it  in 
my  head. 

Q.  How  much  water,  six  inches  deep,  will  run  over  a dam  one 
foot  long,  making  allowance  for  friction? 

'A.  I should  as  lief  calculate  for  100  feet  as  one. 

Q.  You  know  approximately,  don’t  you? 

A.  No,  I don’t  know  approximately.  We  either'sit  down  and 
calculate  these  things,  or  we  take  them  from  tables  that  we  know 
have  been  carefully  calculated. 

Q.  Have  you  any  table  that  will  tell  you  how  much  water,  six 
inches  deep,  will  run  over  a dam  one  foot  long? 

A.  No,  sir. 

Q.  Haven’t  you  got  it  in  your  memory,  so  that  you  can  tell? 

A.  No,  sir.  We  don’t  carry  those  things  in  our  heads;  it 
would  be  impossible  to  find  room  for  all  those  things. 

Q.  You  have  not  even  an  approximation? 

A.  No,  sir. 

Q.  You  can’t  tell  anything  about  it? 

A.  No,  sir. 

Q.  You  can’t  tell  whether  Wamesit  dam  is  200  feet  long  or 
500? 

A.  I cannot,  sitting  here. 

Q.  You  cannot  give  any  judgment  about  it? 

A.  No,  sir  ; I haven’t  any  clear  judgment  about  the  length  of  a 
zig-zag  dam. 

Q.  You  can’t  tell  approximately,  how  much  water,  six  inches 
deep,  will  run  over  a foot  of  surface? 

A.  I cannot,  sitting  here.  I can  calculate  it.  [Referring  to 
book.]  This  table  gives  the  discharge,  for  six  inches  deep,  over 
one  foot  in  length,  from  75  to  70  cubic  feet  a minute.  Calling  it 
72L  per  minute,  it  will  make  1.2  cubic  feet  per  second. 

Q.  Now,  if  the  dam  was  200  feet  long,  it  would  carry  200  times 
that? 

A.  That  would  depend  upon  what  sort  of  a dam  it  was. 

Q.  I mean  roughly  ; I am  not  going  into  nice  calculations  ; but 
about  that? 

A.  Yes,  about  that. 

Q.  Now,  if  at  the  time  you  measured,  on  the  10th  day  of 
August,  you  found  415  cubic  feet,  that  included  what  was  rnnning 
over  the  Wamesit  dam,  through  the  Wamesit  canal,  and  also 
Meadow  brook,  didn’t  it  ? 

A.  Yes,  sir. 

Q.  Now,  if  the  water  was  six  inches  deep,  as  appears  by  the 
table  of  Mr.  Tilton,  at  that  time,  on  the  Wamesit  dam,  how  much 
do  you  think  was  running  over  the  Wamesit  dam? 

Mu.  Butler.  That  depends  upon  how  long  the  Wamesit 
dam  is. 


786 


Testimony  of  Clemens  Herschel. 


Mr.  Shattuck.  That  is  what  I want  to  know,  if  he  can  give 
any  judgment.  • 

A.  I should  not  want  to  testif}7  about  the  Wamesit  dam,  for  a 
time  when  I am  measuring  at  the  Massic.  It  would  be  about  1.2 
of  a foot  per  second,  multiplied  by  the  length  of  the  Wamesit 
dam. 

Mr.  Butler.  If  the  Wamesit  dam  was  straight.  I think  that 
would  make  a difference. 

Mr.  Shattuck.  Some  difference  ; I don’t  want  it  accurately. 

Q.  Then  how  much,  in  your  judgment,  was  running  through 
River-meadow  brook  at  that  time  ? 

A.  I don’t  know. 

Q.  Didn’t  you  measure  it  all  ? 

A.  No,  sir. 

Q.  Did  you  tell  me  that  you  thought  the  Wamesit  dam  was  as 
much  as  100  feet  long? 

A.  Yes,  sir,  I said  I thought  likely7,  it  was. 

Q.  Then  you  may  assume  that  it  was  100  feet  long,  and,  assum- 
ing that  the  water  was  six  inches  deep,  how  much  would  be 
running? 

A.  It  would  be  about  120  cubic  feet  per  second. 

Q.  Was  River-meadow  brook  swollen  at  that  time? 

A.  Well,  I don’t  know  ; that  was  before  the  end  of  the  freshet. 

Q.  Deduct  120  from  415,  and  it  would  be  what  came  through 
Wamesit  canal,  wouldn’t  it? 

A.  I don’t  know  how  the  pond  was  ; it  might  have  been  rising 
and  it  might  have  been  falling.  There  is  a mill-pond  between  the 
Wamesit  and  the  dam  where  I was.  It  might  have  been  rising  or 
falling  ; I don’t  know  anything  about  how  that  wras. 

Q.  Have  you  any  reason  to  suppose  that  the  water  did  not  run 
over  the  dam  at  the  mill-pond  that  day? 

A.  That  is  always  going  up  and  down. 

Q.  But  that  day,  when  there  was  six  inches  of  water  going 
over  the  Wamesit  dam,  that  pond  was  practically  full,  wasn’t  it? 

A.  You  did  not  ask  me  about  any  day ; you  asked  me  about 
half-past  eight  on  the  10th  of  August;  that  was  a fixed  minute. 

Q.  If  there  was  six  inches  going  over  the  Wamesit  dam,  have 
you  any  doubt  that  the  pond  was  full  ? 

A.  I should  say  it  might  be  rising  or  might  be  falling  ; I don’t 
know. 

Q.  Did  you  attempt  to  ascertain  the  amount  of  water  running 
through  the  Wamesit  canal,  by  actual  measurement  of  the  water, 
as  you  measured  it  below? 

A.  I have  not  measured  the  Wamesit  Canal  since  the  20th  of 
March. 

Q.  That  is  not  an  answer  to  my  question.  How  did  you  measure 
it  then  ? 

A.  I went  up  there  and  measured  it. 

Q.  Tell  me  exactly  with  what  instruments. 

A.  I measured  it  at  the  saw-mill  with  a current  meter. 

Q.  State  exactly  how  you  did  it,  wThat  you  did  in  getting  at  the 
measurements  of  that  water. 


Testimony  of  Clemens  Herschel. 


787 


A.  There  was  a log  thrown  across  the  canal  at  the  saw-mill  on 
which  we  stood,  and  we  made  a cross  section. 

Q.  Have  you  got  the  plot? 

A.  No,  sir,  I haven’t  got  it  here. 

Q.  State  exactly  how  you  did  that? 

A.  Well,  sir,  I had  two  assistants,  and  the  first  thing  we  did 
we  measured  off  that  log  into  foot  lengths ; made  a mark  at  these 
places  ; then  I took  a piece  of  pine  board  about  four  inches  long 
and  three-quarters  of  an  inch  thick.  No,  they  were  laths,  come 
to  think  of  it ; we  took  some  laths  and  chopped  them  up  into 
little  short  sticks  and  we  nailed  those  on  thefoot  marks  so  as  to 
show  us  very  clearly  where  the  footmarks  were  ; then  I took  a pole 
which  I had  had  sawed  out  down  at  the  saw-mill,  — it  was  about 
two  inches  square, — and  on  that  foot-pole  I marked  out  foot-lengths 
and  tenths  of  a foot.  I took  those  off  from  the  levelling  rod,  so 
as  to  get  them  accurately.  That  pole  would  sometimes  be  used 
by  one  of  us  and  sometimes  by  another.  The  operation  was  re- 
peated, and  I don’t  know  which  one  of  us  handled  the  pole  and 
which  one  took  the  notes.  But,  at  any  rate,  there  was  a change 
made  ; first  one  and  then  the  other  took  it.  We  put  that  pole  in 
the  water  where  we  had  nailed  these  laths  on  the  log,  and  by 
sticking  the  pole  in  the  water,  you  could  see  how  far  the  water 
came  up  on  it,  and  you  could  read  the  mark  and  tell  how  deep  the 
bottom  was  below  the  surface  of  the  water. 

Q.  How  could  you  tell  how  deep  the  bottom  was?  By  touching 
it,  do  you  mean  ? 

A.  Well,  the  sensibility  of  the  human  hand  is  something  very 
wonderful.  You  can  tell  not  only  when  you  strike  the  bottom, 
but  you  can  tell  whether  it  is  hard  or  soft. 

Q.  Sensibility  told  you  exactly  where  the  bottom  was? 

A.  Yes,  sir ; told  us  where  the  bottom  was  when  we  struck. 

Q.  Was  it  mud  or  gravel? 

A.  I should  say  it  was  gravel  at  that  place.  That  is  what  my 
sensibility  told  me.  I have  been  accustomed  to  sounding  in  a 
great  many  places. 

Q . You  stuck  the  rod  into  the  water  until  you  struck  the  bot- 
tom? 

A.  Yes,  sir ; and  then  the  surface  of  the  water  as  shown  on  the 
rod  shows  how  deep  the  bottom  is  below  the  surface  of  the  water. 
At  the  same  time,  we  have  a guage  which  is  graduated  into  feet 
and  tenths  and  hundredths  of  a foot,  and  we  have  that  nailed  up 
where  we  can  see  it  when  we  are  sounding,  and  we  read  that  guage 
every  few  minutes,  perhaps  every  sounding,  I don’t  remember  how 
often. 

Q.  You  nailed  the  guage  right  side  of  the  canal? 

A.  Right  side  of  the  canal,  so  as  to  see  whether  the  water  staid 
constant  or  not,  If  it  varies,  of  course  we  read  it  oftener.  Then 
we  take  the  average  reading  of  that  guage  and  measure  the  depth 
of  the  canal  below  the  surface  of  the  water,  every  foot  in  width, 
and  then  we  see  what  the  average  water  level  was  during  the 
whole  operation.  We  reduce  the  depths  of  the  bottom  down  to 
the  same  reading  as  the  guage,  so  that  the  guage  and  the  level  of 


788 


Testimony  of  Clemens  Herschel. 


the  bottom  shall  both  count  from  the  same  zero,  and  that  opera- 
tion is  repeated,  as  I said,  another  party  taking  the  rod  from  the 
one  who  had  it  before,  and  having  the  widths  and  depths,  of  course 
that  gives  the  cross  sections  of  the  canal. 

Q.  You  used  what  instrument  in  measuring? 

A.  I used  a current  meter  which  is  1x13^  property. 

Q.  To  what  extent  was  that  used  ? 

A.  I used  it  to  make  the  gauging. 

Q.  Where?  At  the  top  of  the  water  ^or  bottom,  and  to  what 
extent? 

A.  Well,  sir,  it  was  used  at  twenty  stations ; it  was  used  at 
twenty  points,  varying  throughout,  top  and  bottom  and  sideways, 
and  every  way. 

Q.  Was  the  water  running  over  the  flash-boards  at  that  time? 

A.  Well,  I have  no  doubt  it  was,  although  our  gauge,  as  I said, 
was  inside  the  head-gates. 

Q.  Do  you  know  anything  as  to  what  extent  the  gates  of  the 
different  mills  were  open  at  that  time,  and  as  to  how  many  mills 
were  using  the  water  at  that  time? 

A.  No,  sir ; the  object  of  that  gauging  was  to  see  what  the 
canal  would  cany  under  certain  conditions. 

Q.  Do  you  know  what  the  head  of  water  was  at  the  dam  ? 

A.  1 know  what  it  was  inside  the  head-gates  of  the  dam  of  the 
canal. 

Q.  What  was  it? 

A.  It  was  nearly  a foot  above  the  permanent  dam  ; not  above 
the  flash-boards — above  the  permanent  dam.  It  was  grade  25.965. 
25  is  the  top  of  the  permanent  dam,  so  that  it  was  .965  above  the 
top  of  the  permanent  dam.  It  is  11 J inches  above  the  permanent 
dam,  very  nearl3r. 

Q.  Can  37ou  give  any  estimate  of  what  would  run  in  that  canal 
if  it  was  six  inches  above  the  flash-boards? 

A.  I have  not  got  it  figured  out.  I could  calculate  that. 

Q.  Well,  state  it  in  a general  wa37.  Have  3*ou  made  any  meas- 
urements to  ascertain  how  much  that  canal  would  carry?  Can  3Tou 
answer  that  question  soon  ? 

A.  I cannot  very  well. 

Q.  Perhaps  37ou  had  better  calculate  it  and  then  answer  it. 
Can  37ou  tell  us  how  much  water  that  canal  would  carry  when  it  is 
even  with  the  top  of  the  main  Wamesit  dam,  — not  the  flash- 
boards,  but  even  with  the  top  of  the  dam? 

A.  Well,  I can  under  certain  falls. 

Q.  You  may  give  the  estimates  with  the  fall  of  the  canal  as  it 
was. 

A.  If  the  water  at  the  head-gates  was  even  with  the  top  of  the 
stone  dam,  and  the  water  at  the  Lawrence-street  bridge  was  4£ 
inches  lower,  it  would  carry  about  220  cubic  feet  per  second. 

Q.  Have  3rou  estimated  how  much  it  will  carry  when  it  is  even 
with  the  top  of  the  flash-boards? 

A.  I have  not  got  that.  I will  give  3*011  everything  I have  got 
here.  I have  got  it  in  the  first  place  as  it  was  when  I measured 
it,  running  382  cubic  feet  per  second,  and  the  fall  on  the  length 


Testimony  of  Clemens  Herschel. 


789 


of  1,925  feet  was  .574  of  a foot,  and  the  cross  section  of  it  was 
188.38  square  feet.  What  is  called  the  hydraulic  mean  depth  for 
the  whole  canal  was  1.738.  I calculated  that  if  the  fall  had  been 
four  inches  instead  of  .574  of  a foot,  we  should  have  had  the 
quantity  287.88  cubic  feet  per  second. 

Q.  What  was  the  height  of  the  water  at  Wamesit  dam  ? 

A.  The  same,  .965  of  a foot  above  the  permanent  dam ; and  if 
you  increase  the  fall  half  an  inch,  to  4^-  inches,  it  would  make  the 
quantity  305  cubic  feet  per  second.  Then  I have  that  other  cal- 
culation that  I gave  you  of  220  cubic  feet  per  second. 

Q.  Did  you  make  any  other  calculations  when  the  water  was 
at  the  height  of  the  main  dam,  with  a larger  loss  of  head? 

A.  I have  given  you  everything  I have  got. 

Q.  Now  as  to  the  accuracy  of  measurements  by  the  current 
meter  as  compared  with  the  measurements  which  you  have  made 
during  the  last  month  or  two:  how  do  they  compare?  I mean, 
how  do  the  measurements  which  you  made  on  the  20th  of  March 
compare  with  the  measurements  of  the  water  which  you  have  been 
making  recently? 

A.  Well,  sir,  I tested  that  identical  instrument  last  summer, 
measuring  at  the  same  time  the  same  quantity  of  water  with  float- 
ing tubes ; and  if  you  take  off  five  per  cent,  of  the  indications  of 
that  instrument,  you  have  got  it  just  as  near  as  a tube  will  give  it, 
or  any  other  way  that  I know  of,  unless  it  is  an  iron  weir,  and  by 
the  most  delicate  measurements.  I find  it  to  measure  just  five 
per  cent,  more  than  the  actual  flow. 

Q.  Did  you  try  more  than  once? 

A.  Oh,  yes,  indeed.  There  were  nine  tube  measurements,  each 
of  which  lasted  half  an  hour  or  more,  and  during  the  half-hour  I 
measured  with  the  current  meter,  say  five  times  ; that  would  give 
45  measurements  with  the  current  meter. 

Q.  Do  you  know  how  long  the  Wamesit  canal  is? 

A.  I gave  you  the  length  from  the  saw-mill  to  the  Lawrence 
bridge,  1,925  feet.  If  you  count  the  Bleachery  as  the  end  of  it,  I 
can  only  give  it  by  guess. 

Q.  If  you  have  a general  recollection  you  may  state  it? 

A.  I should  think  four  hundred  feet  more. 

Q.  (By  Mr.  Storey.)  Do  I understand  you  to  mean  that  that 
measured  flow  on  the  20th  of  March  is  subject  to  correction  by 
deducting  five  per  cent.? 

A.  Yes,  sir ; I give  it  to  you  just  as  I had  it  in  the  book,  and 
these  experiments  with  the  current  meter  were  made  since. 

Q.  So  that  it  should  be  19.1  less  than  the  amount  which  your 
current  meter  shows? 

A.  Yes,  sir  ; that  is  as  near  as  I know  now.  I am  not  positive 
about  it ; the  instrument  may  be  nearer  correct  after  all.  It  takes 
more  than  the  few  experiments  I made  to  be  positive  about  it.  I 
give  you  the  best  I know  now.  I might  go  out  to-morrow  and 
make  more  experiments  which  might  make  a difference  of  a few 
per  cent,  the  other  way  ? 

Q.  Is  it  not  generally  considered  that  the  measurements  by  a 
current  meter  are  about  ten  per  cent,  less  correct  than  measure- 
ments made  the  other  way. 


790 


Testimony  of  Clemens  Herschel. 


A.  No,  I don’t  know  any  such  rule  as  that. 

Q.  The  plan  that  you  made,  as  I understood  jtou  to  sajT,  for  the 
enlargement  of  the  canal,  was  to  give  368  feet  per  second  on  a 
fall  of  4^  inches  at  the  Lawrence-street  bridge,  when  the  water 
was  as  high  as  the  main  dam.  That  was  the  plan  which  you 
made,  wasn’t  it? 

A.  Yes,  sir. 

Q.  The  actual  capacity  of  the  canal  with  that  loss  of  head  and 
at  that  height,  is  about  220  feet,  is  it  not? 

A.  So  it  seems. 


AFTERNOON  SESSION. 

Mr.  Butler.  I now  offer  the  tables  which  have  been  referred 
to,  wrhicli  represent  the  black  line  on  the  diagram  produced  by  Mr. 
Herschel. 


Average  Flow  from  Midnight  to  Midnight  of  the  Concord  River , as  gauged 
at  the  Massic  Dam , Lowell , 3fass. 

1876. 


Day  of  Week. 

Day  of  Month. 

Cubic  Feet 
per  Second. 

Rainfall  in 
Inches. 

Thursday 

July  6 . . . . 

134.0 

Friday 

“ 7 . . . . 

111.5 

Saturday  

“ 8 . . . . 

107.0 

Sunday  

“ 9 . . . . 

33.5 

Monday 

“ 10  ...  . 

133.0 

0.764 

Tuesday 

“ 11  ...  . 

131.5 

0.814 

Wednesday 

“ 12  ...  . 

141.0 

Thursday 

“ 13  ...  . 

149.5 

Friday 

“ 14  ...  . 

144.0 

0.408 

Saturday 

“ 15  ...  . 

133.5 

Sunday  

“ 16  ...  . 

77.0 

Monday 

“ 17  ...  . 

150.5 

0.077 

Tuesday 

“ 18  ...  . 

130.0 

Wednesday 

“ 19  ...  . 

129.0 

0.015 

Thursday 

« 20  ...  . 

128.5 

0.163 

Friday 

“ 21  ...  . 

133.5 

0.011 

Saturday 

“ 22  ...  . 

115.0 

Sunday  

“ 23  ...  . 

47.0 

1.952 

Monday 

“ 24  ...  . 

155.0 

Tuesday 

“ 25  ...  . 

150.0 

Testimony  of  Clemens  Herschel 


791 


Average  Flow , etc.  — Continued. 

1876. 


Day  of  Week. 

Day  of  Month. 

Cubic  Feet 
per  Second. 

Rainfall,  in 
Inches. 

Wednesday 

July  26  ...  . 

151.0 

0.027 

Thursday . 

“ 27  ...  . 

143.0 

Friday 

“ 28  ...  . 

141.0 

Saturday 

“ 29  ...  . 

141.0 

0.035 

Sunday 

“ 30  ...  . 

85.0 

Monday 

“ 31  ...  . 

382.0 

3.740 

Tuesday 

August  1 . . . . 

567.5 

Wednesday 

“ 2 ...  . 

686.0 

Thursday 

“ 3 . . . . 

734.5 

Friday 

“ 4 . . . . 

722.5 

Saturday . 

“ 5 ...  . 

659.0 

Sunday  

“ 6 . . . . 

568.5 

Monday 

“ 7 ...  . 

496.0 

0.150 

Tuesday 

“ 8 . . . . 

433.5 

0.038 

Wednesday 

“ 9 . . . . 

381.5 

Thursday 

“ 10  ...  . 

332.0 

Friday 

“ 11  ...  . 

292.0 

Saturday 

“ 12  ...  . 

253.5 

Sunday  

“ 13  ...  . 

204.0 

Monday 

“ 14  ...  . 

214.0 

Tuesday 

“ 15  ...  . 

179.5 

0.261 

Wednesday 

“ 16  ...  . 

183.5 

Thursday 

“ 17  ...  . 

'192.0 

0.157 

Friday 

“ 18  ...  . 

'■d 

200.0 

0.190 

Saturday 

“ 19  ...  . 

195.0 

Sunday  

“ 20  ...  . 

g/ 

0) 

123.5 

0.290 

Monday 

“ 21  ...  . 

£ 

174.0 

0.029 

Tuesday 

“ 22  ...  . 

.152.0 

Wednesday 

“ 23  ...  . 

163.5 

Thursday 

“ 24  ...  . 

151.0  , 

Friday 

“ 25  ...  . 

153.5 

Saturday  

“ 26  ...  . 

135.0 

Sunday  

“ 27  ...  . 

43.0 

Monday 

“ 28  ...  . 

134.0 

Tuesday 

“ 29  ...  . 

125.0 

Wednesday 

“ 30  ...  . 

117.0 

792 


Testimony  of  Clemens  Herschel 


Average  Flow , etc.  — Concluded. 

1876. 


Day  of  Week. 

Day  of  Month. 

Cubic  Feet 
per  Second. 

Rainfall  in 
Inches. 

Thursday 

August  31  .... 

113.5 

Friday 

Sept.  1 . . . . 

125.5 

Saturday 

“ 2 . . . . 

112.0 

0.150 

Sunday  

« 3 . . . . 

45.5 

Monday 

“ 4 . . . . 

134.0 

Tuesday 

« 5 ...  . 

117.5 

Wednesday 

“ 6.  . . . 

126.0 

Thursday 

“ 7 . . . . 

124.0 

Friday 

“ 8 . . . . 

141.5 

0.010 

Saturday  

“ 9 . . . . 

130.5 

0.113 

Sunday  

“ ioi.  . . . 

62.0 

Monday 

« 11  ...  . 

155.0 

Tuesday 

“ 12  ...  . 

128.0 

Wednesday 

“ 13  ...  . 

108.0 

Thursday 

“ 14  ...  . 

104.0 

0.004 

Friday 

“ 15  ...  . 

124.0 

0.005 

Saturday 

“ 16  ...  . 

99.5 

Sunday  

“ 17  ...  . 

27.0 

1.180 

Monday 

“ 18  ...  . 

# 167.0 

0.595 

Tuesday 

“ 19  ...  . 

216.5 

0.732 

Wednesday 

“ 20  ...  . 

209.0 

0.060 

Thursday 

“ 21  ...  . 

196.5 

0.014 

Friday 

“ 22  j.  . . . 

205.0 

Saturday 

“ 23  ...  . 

172.0 

Sunday 

“ 24  ...  . 

138.5 

0.027 

N.  B.  — Each  daily  average  in  cubic  feet  per  second  is  the  average  of  forty-eight  half-hourly 
gaugings. 

The  figures  in  the  last  column  are  the  average  of  the  rainfall  on  the  whole  drainage  area 
above  Massic  dam,  derived  from  the  observations  taken  at  South  Framingham,  Lake 
Cochituate,  Concord  and  Lowell. 


Q.  (By  Mr.  Butler.)  Will  you  state  what  this  table  marked 
“ C.  H.  2”  represents? 

A.  It  represents  the  black  line  upon  the  diagram,  in  reference 
to  which  I testified  this  morning,  to  wit : the  average  flow  from 
midnight  to  midnight,  of  Concord  river,  as  gauged  at  the  Massic 
dam  from  July  6th  to  September  24th. 


Testimony  of  Clemens  Herschel. 


793 


Cross-examination  resumed. 

Q.  (By  Mr.  Storey.)  You  have  on  this  plan  three  lines,  — a 
yellow  line,  a black  line,  and  a red  line.  I understand  that  the 
black  line  represents  the  actual  measured  flow  of  water  at  Massic 
dam  ? 

A.  Yes,  sir  ; there  are  six  days  left  out. 

Q.  And  the  flow  on  those  days  is  estimated  ? 

A.  Yes,  sir. 

Q.  That  black  line  represents  the  measurements  which  w'ere 
taken  by  3^011,  or  under  your  supervision,  and  upon  the  accuracy  of 
which  you  are  ready  to  testify?  You  make  a dot  on  each  day  at 
the  average  flow? 

A.  Yes,  sir. 

Q.  And  then  you  connected  those  daj^s  by  a straight  line? 

A.  Yes,  sir. 

Q.  This  yellow  line,  which  represents  the  flow  of  Sudbury 
river  I understand  is  not  plotted  from  3’our  measurements? 

A.  That  is  plotted  from  tables,  the  accuracy  of  which  Mr. 
Fteley  is  responsible  for. 

Q.  You  know  nothing  about  the  measurements  upon  which  that 
line  is  based  ? 

A.  I have  been  there  and  know  how  it  was  done  ; but  I do  not 
come  here  to  testify  about  it. 

Q.  In  regard  to  the  measurements  represented  by  the  yellow 
line,  you  do  not  intend  to  testify  as  to  the  system  or  apparatus 
that  was  employed  ? 

A.  No,  sir ; only,  as  I have  been  there,  I happen  to  know  how 
it  was  done. 

Q.  Was  it  the  same  apparatus  that  was  employed  at  the  Massic 
Falls? 

A.  No,  sir. 

Q.  It  was  not  under  3Tour  superintendence  at  all? 

A.  No,  sir. 

Q . Somebody  gives  you  those  facts,  and  3rou  plot  them  out  on 
that  paper? 

A.  Yes,  sir. 

Q.  Then  I understand  that  the  red  line  is  made  by  adding  to  the 
black  line  the  flow  of  Sudbury  river  as  would  appear  by  the  yel- 
low line? 

A.  I did  not  plot  the  red  line  ; Mr.  Fteley  will  testify  in  regard 
to  that ; but  I know  what  it  is.  It  is  the  flow  of  Sudbuiy  river 
modified  by  pushing  it  back  three  days  ; that  is,  allowing  three 
days  for  the  water  to  come  from  South  Framingham  to  Massic 
dam. 

Q.  That  is,  you  measure  at  the  city  dam  so  much  water,  and 
three  days  after,  you  add  the  amount  of  water  so  measured  to  the 
amount  of  water  at  Massic  dam,  and  that  addition  makes  the 
plotted  red  line? 

A.  Yes,  sir. 

Q.  Now,  I want  to  ask  you  a question  or  two  about  your  theory 
that  a large  river  is  large  because  it  flows  low  down  in  the 
country,  and  a small  river  is  small  because  it  is  higher  up? 


794 


Testimony  of  Clemens  Herschel. 


A.  That  is  true.  I made  that  statement  to  illustrate  the  point 
I made  in  respect  to  drainage  area,  — a large  river  is  lower,  and 
a larger  amount  of  water  runs  into  it. 

Q.  Does  that  mean  that  as  the  water-shed  does  not  let  a large 
number  of  streams  in  to  form  the  river,  as  you  get  nearer  the 
mouth,  you  will  find  the  river  larger? 

A.  A large  river  is  fed  in  the  summer  season,  when  there  may 
not  be  any  rainfall  for  two  months,  by  underground  streams; 
whereas  a small  river  higher  up  would  be  beyond  the  reach  of  any 
such  source  as  that. 

Q.  Now,  let  me  see  if  I follow  your  method  of  observation. 
You  have  found  that  the  lower  down  a river  is,  the  larger  it  is. 
Do  you  mean  that  that  is  the  result  of  your  observation,  or  is  it  a 
theory  of  yours?  I merely  want  to  know  whether  that  theory  is 
something  like  the  theory  that  “ large  rivers  run  by  large  towns, ” 
or  whether  it  is  based  on  observation  ? 

A.  I hope  not.  I was  trying  to  explain.  I said  it  was  clear  to 
me,  but  I did  not  know  that  I could  make  it  clear  to  others.  It  is 
very  clear  that  a large  river  is  fed  in  the  dr}’-  season,  when  there 
has  not  been  rain  for  a long  time,  by  underground  sources  which, 
in  the  case  of  a smaller  river,  would  go  a long  way  out  of  its 
drainage  area,  and  would  not  feel  it. 

Q.  Is  that  a theory  of  yours  from  facts  that  you  have  observed 
on  the  surface? 

A.  Well,  sir,  we  derive  our  knowledge  as  engineers  from  a variety 
of  sources  other  than  what  are  tested  and  sworn  to,  and  we  must 
apply  it  the  best  we  can.  I know  it  is  an  accepted  fact  by  good 
engineers  that  large  rivers  which  have  had  dams  thrown  across 
their  lower  reaches  and  their  entire  flow  of  water  diverted,  have 
reappeared  within  three  or  four  miles  in  large  volume,  and  become 
navigable  streams,  from  entirely  underground  sources  of  supply. 

Q.  Haven’t  you  ever  known  trout-brooks,  very  small  streams 
away  up  in  the  mountains,  that  had  a perennial  flow? 

A.  I suppose  trout  do  live  in  streams  that  have  a perennial 
flow,  if  that  is  what  you  mean.  I know  that  small  streams  in  the 
upper  parts  of  drainage  areas  do  not  yield  in  dry  times  the  same 
proportion  of  water  that  larger  rivers  do. 

Q.  Do  you  know  how  much  difference  there  is  in  the  height 
above  tide-water  of  the  Sudbury  river  above  the  city  dam  and  the 
Concord  river  at  the  Wamesit  dam? 

A.  I don’t  know  exactly. 

Q.  Do  you  know  anything  about  the  amount  of  fall  that  there 
is  in  the  river  between  the  city  dam  and  the  Wamesit  dam? 

A.  I think  I do. 

Q.  The  Sudbury  river  is  one  that  flows  with  a peculiarly  slight 
fall,  isn’t  it? 

A.  There  is  very  little  fall  between  the  Saxonville  mills  and 
North  Billerica. 

Q.  There  is  little  fall  between  North  Billerica  and  the  Wamesit 
dam  ? 

A.  It  depends  upon  whether  you  mean  the  bottom  or  top  of  the 
dam  at  North  Billerica.  There  is  very  little  fall  from  the  bottom 
of  the  dam  at  North  Billerica  to  the  top  of  the  other. 


Testimony  of  Clemens  Herschel. 


795 


Q.  Take  the  average  height  above  tide-water  of  the  Assabet  and 
the  Sudbury : do  you  know,  in  regard  to  the  difference,  whether 
the  Sudbury  is  any  higher  than  the  Assabet,  or  lower  ? 

A.  No  ; I don’t  know. 

Q.  Have  you  examined  the  Assabet  at  all? 

A.  Yes  ; I have  gauged  it. 

Q.  Have  you  been  up  the  Sudbury? 

A.  Not  to  follow  the  course  of  the  stream. 

Q.  Of  the  two  streams,  the  Assabet  is,  on  the  whole,  the  more 
rapid,  isn’t  it? 

A.  At  their  junction  it  is,  decidedly. 

Q.  Isn’t  it  above?  Take,  for  example,  the  Sudbury,  and  follow 
it  up  through  the  meadows  at  Concord,  through  Fairhaven  bay, 
and  up  along  the  course  of  the  stream,  the  flow  is  almost  nothing, 
isn’t  it? 

A.  I believe  so. 

Q.  Take  the  same  distance  from  the  junction  of  the  Sudbury 
and  the  Assabet,  and  is  not  the  flow  of  the  Assabet  much  greater  ? 

A.  Yes,  sir. 

Q.  Then  the  probability  is  that  the  average  height  of  the  Assa- 
bet above  the  height  at  the  junction  is  greater  than  the  height  of 
the  Sudbury  above  the  height  at  the  junction,  isn’t  it? 

A.  I see  exactly  the  drift  of  your  question.  If  you  will  allow 
me  to  state  again  what  I said,  you  will  see  that  }^ou  did  not 
exactly  understand  me.  I say  these  rivers  must  be  low  according 
to  their  drainage  area.  I do  not  say  low  above  any  fixed  point ; 
if  they  are  high  above  the  level  of  the  sea,  they  generally  have 
very  little  land  that  is  still  higher  above  them. 

Q.  Take  it  on  your  own  ground : do  you  know  how  the  height 
of  the  Sudbury  as  compared  with  the  surrounding  drainage  area 
compares  with  the  height  of  the  Assabet  as  compared  with  its 
drainage  area? 

A.  I should  reason  from  their  yield. 

Q.  In  other  words,  having  a certain  theory,  you  assume  that 
the  facts  must  sustain  it.  Now,  I want  to  know  about  the  facts, 
in  order  to  test  the  theory. 

A.  The  drainage  area  is  the  amount  of  land  that  is  higher  than 
the  stream. 

Q.  I am  asking  now  as  to  your  observation.  Of  course,  I 
know  that  as  water  has  to  run  down  hill,  the  drainage  area  of  a 
stream  must  be  above  it;  but  what  I want  to  know  is,  whether 
the  drainage  area  of  the  Assabet  is  higher  in  proportion  to  the 
Assabet  than  the  drainage  area  of  the  Sudbury  is  higher  than  the 
Sudbury? 

A.  I don’t  know  what  the  average  level  of  the  water-shed  is. 

Q.  Take  the  Assabet  river  from  its  source  to  its  junction  with 
the  Sudbury,  and  the  Sudbury  river  from  its  source  to  its  junction 
with  the  Assabet. 

A.  I know  that  the  Assabet  drainage  area  has  more  ponds  in 
it. 

Q.  I am  not  asking  you  as  to  anything  except  the  comparative 
height  of  the  drainage  area  above  the  Sudbury. 


796 


Testimony  of  Clemens  Herschel. 


A.  Well,  I don’t  know  what  the  average  height  of  the  land  is 
above  either  of  them. 

Q.  But  you  know  that  the  average  height  of  the  drainage  area 
above  the  Sudbury  does  not  differ  materially  from  the  average 
height  of  the  drainage  area  of  the  Concord,  above  Concord,  below 
the  junction  of  the  Assabet  and  Sudbury? 

A.  I don’t  know  what  the  average  heights  are. 

Q.  (By  Mr.  Shattuck.)  At  one  period  this  summer  the  water 
supply  of  the  Sudbury  was  more  than  half  of  the  whole  of  Con- 
cord river,  wasn’t  it? 

A.  Well,  I think  on  a single  day  it  was  about  half. 

Q.  It  was  more  ; it  was  400  against  less  than  750,  was  it  not? 

A.  There  was  a single  day  when  it  ran  lip  considerabty. 

Q.  How  do  you  account  for  that  ? 

A.  Oh,  the  Sudbury  is  a quicker  stream. 

Q.  Was  there  not  a greater  rainfall  on  that  territory? 

A.  I don’t  know  how  that  is  ; the  records,  of  course,  will  show 
that. 

Q.  You  think  the  Sudbury  is  a quicker  stream,  do  }rou? 

A.  Yes,  sir. 

Q.  What  makes  you  think  so? 

A.  It  follows  a rainfall  much  quicker  than  the  Concord.  You 
can  see  that  right  beforefyou  on  the  plotting. 

Q.  I should  say  not ; I should  say  the}'  went  up  exactly  on  the 
same  line.  On  the  contraiy,  it  was  not  so  quick. 

A.  Oh,  yes,  it  was  quicker.  There  is  a rainfall  here  on  the  23d 
of  July  which  brings  the  Sudbury  up  appreciably,  and  it  does 
not  affect  the  Concord. 

Q.  Did  not  the  great  rain  you  had  carry  up  the  Concord  river 
more  rapidly  than  the  Sudbury? 

* A.  No,  sir  ; the  height  of  the  freshet  on  the  Concord  was  sev- 
eral days  after  the  height  of  the  freshet  on  the  Sudbury  had 
passed. 

Q.  How  many  days? 

A.  I have  plotted  the  great  rainfall  half  way  between  the  30th 
and  the  31st,  because  from  the  records  I did  not  get  correct  in- 
formation as  to  precisely  when  it  commenced  and  ended,  but  I know 
it  rained  that  Sunday  night.  I plotted  half  way  between  the  30th 
and  31st  day  of  July.  The  Sudbury  had  attained  its  maximum 
the  first  day  of  August,  and  fell  veiy  rapidly ; it  fell  off  180  cubic 
feet  in  one  day.  It  attained  its  maximum  on  the  first,  and  the 
next  day  it  was  180  cubic  feet  off,  and  in  two  days  more  it  was 
120  off;  whereas  the  Concord  did  not  attain  its  maximum  until 
the  3d  of  August.  That  was  the  maximum  of  the  Concord,  and 
at  that  time  the  Sudbury  had  fallen  down  to  be  less  than  150. 
It  took  the  Concord  over  two  weeks  to  fall  down  to  its  ordinary 
stage,  and  the  Sudbury  was  all  back  in  less  than  a week.  I think 
that  plot,  if  carefully  looked  at,  will  show  how  quick  the  Sudbury 
is  in  comparison  with  the  Concord. 

Q.  (By  Mr.  Storey.)  You  mean  quick  to  feel  a rainfall? 

A.  Quick  to  feel  a rainfall,  and  go  down  or  up  either. 


Testimony  of  Clemens  Herschel. 


797 


lie-direct . 

Q.  (By  Mr.  Butler.)  Now,  in  regard  to  tbe  canal.  You  cal- 
culated, if  I understood  you,  that  with  the  water  at  the  height  of 
the  dam,  and  drawn  down  four  and  one-half  inches  at  the  Wam- 
eslt,  it  would  give  220  cubic  feet  capacity  per  second  ? 

A.  Yes,  sir. 

Q.  And  that  calculation  was  made  from  the  flowage  of  water  in 
a section  of  the  canal  made  up  near  the  saw-mills? 

A.  That  is  where  I gauged  it ; yes,  sir. 

Q.  Now,  I want  to  know  if  that  section  of  the  canal  was  of  a 
size,  in  depth  and  width,  which  compared  with  your  estimate? 
That  is,  was  it  the  size,  width  and  depth  that  you  estimated  it 
ought  to  be  to  carry  300  and  odd  feet  per  second  without  drawing 
down  but  six  inches  ? 

A.  I can  answer  that  from  my  general  knowledge  of  the  whole 
canal,  not  from  a specific  comparison  of  that  cross  section  with 
those  I designed. 

Q.  Pardon  me  ; was  that  comparison  made  by  measurement 
made  in  a cross  section  of  the  canal,  made  of  the  width,  depth, 
and  height  which  you  yourself  desired  it  should  be,  when  you  made 
the  estimate  for  the  canal  to  carry  the  other  amount?  The  other 
things  we  will  take  into  consideration  by  and  by. 

A.  That  cross  section  at  the  head  of  the  canal  is,  in  my  opinion, 
large  enough. 

Q.  Now  did  you  measure  the  width  of  the  canal,  or  the  depth 
of  the  canal,  at  any  other  point  on  March  20th,  or  about  that 
time,  between  that  cross-section  and  the  Lawrence  bridge? 

A.  I don’t  think  I did,  then. 

Q.  Did  you,  at  any  other  time,  measure  that,  and  if  so,  when, 
after  the  last  digging  was  done  on  the  canal? 

A.  After  the  digging  was  done,  I measured  several  times  the 
rock  section  which  lies  in  front  of  the  Bolt  Company,  and,  as  I 
stated,  that  was  finished  under  the  second  contract  under  my 
supervision,  and  1 had  to  certify  to  the  amounts  taken  out.  That 
was  finished  right. 

Mr.  Shattuck.  This  has  all  been  gone  into  before. 

Mr.  Butler.  Oh,  no,  pardon  me.  You  put  in  a new  measure- 
ment entirely,  and  I am  trying  to  find  out  the  data. 

Q.  Now,  with  the  exception  of  that  rock  cutting  at  the  American 
Bolt  Company,  did  you  make  an}'  measurement  after  the  digging 
was  done  of  the  canal,  or  take  any  section  of  the  canal  between 
the  two? 

A.  I measured  several  times  in  front  of  Mr.  Faulkner’s  boarding- 
house, and  between  that  and  his  mill. 

Q.  When? 

A.  I measured  while  the  work  was  going  on  by  days’  labor. 

Q.  I understood  that ; but  my  question  is  whether  you  meas- 
ured after  the  work  was  finished  ? 

A.  No,  sir;  I did  not. 

Q.  Did  you  take  any  other  cross  section  of  the  canal  to  get  at 
your  calculation  than  the  one  which  you  have  described  to  Mr. 
Shattuck  ? 


798 


Testimony  of  Clemens  Hersciiel. 


A.  No,  sir. 

Q.  Did  you  have  with  you  the  figures  of  any  measurements 
made  after  the  canal  was  finished,  as  much  as  it  was  finished, 
when  you  made  that  measurement  and  came  to  your  results? 

A.  I had  some  of  the  data  ; I had  not  the  measurements  of  the 
canal. 

Q.  I say,  had  you  any  measurements  of  the  canal? 

A.  No,  sir,  except  the  length  ; I knew  the  length. 

Q.  There  has  been  no  alteration  in  the  length  of  the  canal,  so 
far  as  you  know,  since  the  digging  was  there? 

A.  No,  sir? 

Q.  Now  proceed,  if  }tou  please,  to  another  question.  If  the 
canal,  when  the  water  is  at  the  height  of  the  permanent  stone 
dam  will  only  carry  220  cubic  feet  when  drawn  down  4J  inches 
at  Lawrence  street,  which  I have  supposed  you  estimate  to  be 
equal  to  six  inches  at  the  Bleachery? 

A.  Yes,  sir. 

Q.  Then,  if  the  wheel  and  gates  of  the  several  takers,  other 
than  the  Wamesit  Company  are  gauged  at  the  capacity  of  their 
deeds,  which  I understand  to  be  220  feet  per  second,  then  those 
takers  would  take  it  all  up  and  leave  the  Wamesit  Power  Company 
nothing?  Would  not  that  be  the  fact? 

A.  Yes,  sir. 

Q.  It  being  in  evidence,  as  I will  assume  for  the  purpose  of 
this  question,  that  all  hands  run  in.  a dry  time  part  of  the  day,  in- 
cluding the  Wamesit  Company,  running  246  horse-power,  which 
would  take  140  cubic  feet,  and  the  others  taking,  including  ma- 
chinery, 220  feet,  aud  under  those  circumstances  the  canal  would 
carry  only  220  feet,  where  did  the  Wamesit  Power  Company  get 
its  water? 

A.  They  drew  the  head  down  much  more  than  4J  inches  at  the 
Lawrence  street  bridge. 

Q.  Then  the  more  they  drew  dowrn  at  the  lower  end,  the  more 
they  would  get,  to  a certain  limit,  would’nt  they? 

A.  Yes,  sir. 

Q.  If  they  drew  down  their  head  a foot,  unless  that  oversteps 
the  point  of  limit,  they  would  run  a great  deal  more  water  through 
the  same  canal  than  though  they  only  drew  down  six  inches? 

A.  Yes,  sir.  There  is  a certain  limit  beyond  which  they  cannot 
draw  it  down. 

Q.  And  that  limit  would  be  in  practice  this?  If  you  knocked 
the  other  end  out  of  the  canal,  and  left  it  free  and  open,,  with  the 
same  head  at  the  head-gates,  you  would  get  the  greatest  amount  of 
draft  of  water,  wouldn’t  you? 

A.  Yes,  sir. 

Q.  And  opening  a great  amount  of  wheels,  gates,  and  vents  at 
the  lower  part  of  the  canal  would  operate  in  the  same  way? 

A.  That  would  have  the  same  effect. 

Q.  So  that  the  effect  of  the  use  of  this  canal  has  been,  that  the 
less  water  there  was  the  more  they  wrould  use, — that  has  that  effect 
to  them  ? 

A.  The  less  there  was  the  more  they  would  use,  is  that  the 
question  ? 


Testimony  of  Clemens  Herschel. 


799 


Q.  Yes,  sir  ; they  had  the  right  to  use  only  288  feet,  but  there 
was  a very  much  larger  quantity  used  than  that ; and  the  lower  the 
canal  is,  the  more  they  would  use,  because  they  could  get  more? 

A.  I don’t  quite  understand  the  question.  There  must  be  some- 
thing I don’t  understand. 

Q.  Perhaps  you  don’t ; perhaps  I don’t  make  myself  clear.  I 
suppose  that  is  my  fault.  I say,  assume  it  to  be  shown  here  that 
the  Wamesit  Power  Company  run  the  water  246  horse-power,  and 
other  water-takers  run  440  horse-power,  and  the  canal,  as  they  had 
a right  to  use  it, — using  only  aliquot  parts, — would,  when  drawn 
down  to  six  inches,  carry  onl}’  220  cubic  feet,’ but  by  drawing  the 
head  down  to  that  amount  of  water  of  which  we  have  been  speak- 
ing, 246  horse-power,  and  440  horse-power  could  be  got,  then  by 
drawing  down  the  head  at  the  lower  end,  when  the  water  was  low, 
the}’'  could  get  a great  deal  more  than  their  aliquot  parts,  couldn’t 
they  ? 

A.  Somebody  did. 

Q.  So  that,  in  fact,  the  more  the  canal  was  drawn  down  at  the 
lower  end,  — down  to  a certain  limit  which  you  have  not  defined, — 
the  more  water  everybody  would  be  able  to  take  — isn’t  that  so? 

A.  The  more  water  some  one  or  more  would  be  able  to  get. 

Q.  Now,  sir,  is  there  any  method  that  you  know  of  of  defining 
how  many  inches  or  feet  the  canal  would  be  drawn  down? 

A.  Well,  I think  I could  calculate  what  the  maximum  discharge 
of  that  canal  would  be.  That  is  rather  intricate,  perhaps,  and 
somewhat  approximate.  It  is  a legitimate  question,  however,  for 
engineers  to  solve. 

Q.  You  haven’t  done  that? 

A.  No,  sir,  I have  not? 

Mr.  Butler.  I am  not  anxious  that  you  should.  If  anybody 
is,  they  will  have  it  done. 

Q.  Is  the  method  you  took  to  measure  the  water  one  known  and 
approved  among  the  best  engineers  abroad  and  here? 

A.  Well,  it  is  a good  way  to  measure  water.  I have  tested  it  a 
number  of  times,  comparing  it  with  other  methods  that  in  turn 
have  been  tested,  and  there  are  certain  localities  where  practically 
none  other  can  be  used,  that  I know  of. 

Q.  I mean  the  water  in  a running  canal,  — can  you  measure  it 
by  that  method  so  that  the  measurement  can  be  relied  upon? 

A.  There  are  a variety  of  systems  by  which  the  velocity  of  cur- 
rents is  measured,  and  some  one  of  those  must  be  used  in  some 
cases.  The  value  of  any  way  of  measuring  water  depends  upon  the 
experiments  that  have  been  made  upon  that  particular  way. 

Q.  Now,  upon  the  question  of  the  amount  of  water  that  will 
run  over  a dam,  assuming  it  to  be  a zig-zag  line  with  sharp  corners 
as  the  top  of  the  rolling-way  of  the  dam,  is  your  formula  as  given 
in  the  books  adapted  to  give  an  approximate  result  for  the  water 
which  would  run  over  such  a dam,  or  is  the  formula  given  in  the 
book  from  which  you  made  your  calculation  as  to  the  amount  of 
water  which  would  run  over  one  foot  at  a height  of  six  inches 
made  from  a straight  line  on  a straight  dam? 

A.  The  experiments  that  have  been  made  have  been  made  on 


800 


Testimony  of  Clemens  Herschel. 


straight  dams ; at  the  same  time,  I know  of  experiments  made 
on  the  curved  dams,  or  partly  straight  and  partly  curved,  and 
application  of  the  straight  line  formula  to  bends  gives  us  an 
approximate  result. 

Q.  An  approximate  result,  and  that  only? 

A.  To  get  exactty  the  results  that  are  given  by  any  formula,  the 
precise  form  of  the  apparatus  must  be  reproduced  which  was  used 
when  the  experiments  were  made  from  which  the  formula  was  de- 
rived. 

Q.  Do  3^011  know  of  any  formula  to  apply  to  a zig-zag  dam  like 
that  ? 

A.  No,  sir. 

Q.  Would  not  measurements  over  a weir  be,  in  }7our  judgment, 
a much  more  accurate  way  of  determining  the  amount  of  water 
running  over  a dam  than  any  calculation  from  such  a zig-zag  dam 
b}T  a formula? 

A.  Well,  my  opinion  is,  from  what  I know  of  experiments,  as  I 
sa}r,  on  dams  that  are  not  straight  lines,  the  modification  by 
their  being  curved  or  being  bent  is  not  very  great.  I should  say 
the  shape  of  the  top  of  the  dam  had  greater  influence  than  the 
form  of  the  ground  plan  of  the  dam. 

Q.  What  shape  of  the  dam  at  the  top  would  give  the  best  re- 
sults? 

A.  To  apply  the  formula,  the  shape  of  the  top  of  the  dam  ought 
to  be  exactly  the  same  shape  of  the  apparatus  that  was  used  when 
the  experiments  were  made  from  which  the  formula  was  derived. 

Q.  What  is  that  shape? 

A.  That  shape  is  different  for  different  experiments,  but  in 
measuring  water,  we  always  try  to  reproduce  the  shape,  as  I sa}', 
which  was  used  when  the  formula  was  made. 

Q.  In  order  to  reproduce  it,  you  must  know  what  it  is? 

A.  I say  it  is  different.  Different  experimenters  use  different 
weirs.  We  use  in  this  country  the  experiments  that  were  made 
by  Mr.  Francis  at  the  lower  locks,  Lowell,  and  that  weir  was 
made  of  two-inch  plank,  bevelled  on  the  down-stream  side  so  that 
the  top  was,  I think,  a quarter  of  an  inch  thick,  or  something  like 
that,  I don’t  remember*  exactty.  If  I was  going  to  make  a meas- 
urement as  accurate  as  any  measurement  could  be,  I should  go  to 
the  records  of  that  weir  and  reproduce  it  verbatim  et  literatim  to  a 
dot,  to  a screw-head,  and  everything  else. 

Q.  To  get  the  exact  result  of  a formula,  it  requires  that  there 
be  a substantially  sharp  edge  go  into  the  waterfall? 

A.  It  ought  to  have  a sharp  edge  on  the  up-stream  side. 

Re-direct. 

Q.  (By  Mr.  Child.)  You  said  something  about  percentage  to 
be  allowed.  I want  to  know  flow  accurate  this  plot  is  that  is  made 
here,  and  whether  the  percentage  has  been  allowed  ? 

A.  The  experiments  were  made  with  m)f  current  meter  and  Mr. 
Fteley’s  current  meter,  and  were  made  on  purpose  to  test  the  ac- 
curacy of  the  guagings  shown  on  the  plot.  A measurement  made 


Testimony  of  A.  Fteley. 


801 


by  my  current  meter  is  correct  within  one  or  two  per  cent.,  as  I now 
have  given  it.  By  taking  off  five  per  cent,  from  the  quantity  1 
gave  as  flowing  in  the  canal,  it  also  is  correct  within  one  or  two 
per  cent.  It  may  be  one  or  two  per  cent,  too  large  or  too  small. 
It  is  as  correct  as  any  way  of  measuring  water  will  be. 

Q.  It  is  as  likely  to  err  one  way  as  the  other? 

A.  It  is  as  likely  to  err  one  way  as  the  other.  And  this  cor- 
rection has  been  made.  Ever  since  the  interpolated  part,  the 
water  was  measured  over  a good  weir-shaped  plank. 

A.  Fteley,  sworn. 

Mr.  Child.  We  desire  to  offer  profiles  of  the  measurements  of 
Sudbury  river  for  three  years,  but  with  different  degrees  of  accu- 
racy. The  measurements  on  the  first  map,  for  1874,  were  taken 
on  the  days  in  which  these  zero  marks  and  crosses  are  made  on 
the  profile,  not  being  taken  every  day  ; these  are  actual  meas- 
urements, showing  different  measurements  in  1874  on  the  dayrs  in- 
dicated by  these  crosses  and  zero  marks.  [Profile  put  in  showing 
the  yield  of  Sudbury  river  in  1874,  at  the  times  indicated  by  the 
marks  zero  and  cross.]  Then  here  is  a profile  for  1875,  which 
was  taken  by  measurements  made  three  times  each  day  up  to  No- 
vember, when  there  wrere  the  number  of  measurements  indicated 
on  the  plan  made  on  these  different  days  ; and  then,  from  Decem- 
ber 25th,  there  was  a continuous  measurement  by  a self-registering 
float.  Up  to  November,  measurements  were  taken  three  times  a 
day.  From  November,  measurements  were  taken  very  many  times 
a day,  and  from  December  25th  the  measurement  was  continuous. 
[Profile  put  in  of  the  yield  of  Sudbury  river  and  Farm  pond  in 
1875,  showing  the  average  flow  per  second  for  each  day  in  cubic 
feet.]  Then  we  have  a plan  for  1876,  showing  the  continuous 
measurements  b}^  the  instrument  which  we  saw.  [Profile  put  in  of 
the  yield  of  Sudbury  river  and  Farm  pond  in  1876  (running  to 
September  23d),  showing  the  average  flow  per  second  for  each  day 
in  cubic  feet.] 

Q.  (By  Mr.  Child.)  How  long  have  you  been  an  engineer? 

A.  Eighteen  jears. 

Q.  And  where? 

A.  Partly  in  France,  and  eleven  years  in  this  country. 

Q.  To  what  branch  have  you  devoted  your  attention  ? 

A.  My  practice  has  been  as  an  engineer,  and  about  seven  years 
ago  I devoted  myself  to  hydraulics. 

Q.  Where  were  you  educated  ? 

A.  In  France. 

Q.  Where  in  France  ? 

A.  In  Scientific  School,  sir. 

Q.  The  first  matter  to  which  I will  call  your  attention  is  this 
map,  put  in  by  Mr.  Herschel.  Is  there  a part  of  that  map  done 
by  you  ? 

A.  The  red  line  on  this  map  was  plotted:  by  me,  and  I fur- 
nished the  figures  necessary  to  plot  the  yellow  lines  showing  the 
flow  of  Sudbury  river. 


802 


Testimony  of  A.  Fteley. 


Q.  Will  }tou  explain  what  that  red  line  is,  and  how  it  is 
plotted  ? 

A.  I have  taken  from  the  records  of  the  gauge  of  Sudbury 
river  the  amount  of  water  that  has  been  diverted  every  day, 
whether  it  went  into  Lake  Cochituate,  or  whether  it  was  stored  in 
Farm  pond,  and  I have  added  to  the  quantity  shown  on  the  profile, 
in  black,  the  quantity  so  found.  The  only  difference  is  that  as  it 
takes  from  two  to  three  days  for  water  to  go  from  Framingham  to 
Lowell,  I have  shifted  the  records  as  shown  by  the  red  figures  on 
this  plan,  so  that  the  records  shown  on  the  6th  of  any  month 
would  represent  the  diversion  that  actually  took  place  three  days 
before  that,  that  is,  on  the  3d,  in  Framingham. 

Q.  You  calculated  that  the  water,  if  it  had  been  allowed  to  run 
in  Sudbury  river,  would  have  reached  Massic  dam  three  days 
afterwards? 

A.  Yes,  sir  ; that  is  what  I have  assumed. 

Q.  The  red  line  is  added  to  the  black  line,  and  the  two  together 
show  what? 

A.  The  two  together  show  what  I believe  would  have  been  the 
natural  flow  of  each  river  at  that  point,  if  the  city  had  not  diverted 
the  water. 

Q.  (By  Commissioner  Francis.)  The  red  line  is  in  addition 
to  the  black  line? 

A . Yes,  sir. 

Q.  (B}r  Mr.  Child.)  The  red  line  shows  the  aggregate  of  the 
Concord  and  the  Sudbury  ; the  black  line  shows  the  Concord  ; and 
the  difference  between  the  black  and  the  red  shows  the  difference 
it  would  make  to  the  Concord  river  if  the  Sudbury  river  had  been 
allowed  to  flow  into  it? 

Mr.  Storey.  I do  not  understand  that  he  means  the  quantity 
actually  diverted  in  the  whole  flow  of  the  Sudbury,  but  the 
amount  which  in  practice,  the  city  actually  took  in  and  gave  out. 
Is  that  not  it  ? 

A.  No,  sir  ; that  is  not  it.  This  red  line  as  it  stands  represents 
the  whole  flow  at  that  place,  where  it  was  gauged  b}T  Mr.  Herschel, 
supposing  that  the  Sudbury  river  would  have  flowed  naturally  ; 
consequently  it  included  the  diverted  water,  and  also  the  water 
that  was  actually  allowed  to  run. 

Q.  Will  you  explain  what  the  space  between  the  black  line  and 
the  red  line  show's? 

A.  The  space  between  the  black  line  and  the  red  line  represents 
the  flow  of  Sudbury,  which  has  not  passed  over  or  through  the 
city  dam  at  Framingham.  What  wa3  not  diverted  by  the  city 
was  allowed  to  run  into  the  canal  bed. 

Q.  And  was  measured  b}T  Mr.  Herschel? 

A.  And  was  measured  by  Mr.  Herschel. 

Q.  Then  the  difference  between  the  black  line  and  the  red  line 
shows  what  v'as  actual^  diverted  by  the  city? 

A.  Yes,  sir. 

Q.  (By  Mr.  Child.)  Now,  if  you  w'ill  explain  the  }Tellow  line? 

A.  The  3'ellow  line  represents  the  flow  of  Sudbury  river  as  it 
has  been  gauged  at  Framingham ; it  represents  the  natural  flow  of 
the  river. 


Testimony  of  A.  Fteley. 


803 


Q.  The  whole  flow? 

A.  Yes,  the  whole  flow. 

Q.  (By  Mr.  Storey.)  Including  that  which  is  diverted  and 
that  which  is  not? 

A.  Yes,  sir. 

Q.  (By  Mr.  Child.)  Will  you  explain,  if  you  please,  your 
system  of  gauging  the  water  by  which  you  measured  the  Sudbury 
river,  beginning  in  1874,  and  taking  it  down  to  the  present  time? 

A.  To  answer  that  question  fully,  I believe  it  is  necessary  that 
I should  explain  to  a certain  extent  how  the  city  dam  is  situated 
and  the  various  channels  through  which  the  water  will  run.  The 
dam  erected  by  the  city  is  in  Framingham,  and  above  it  is  the 
river,  of  course  ; and  above  it  also  is  the  ditch  that  connects  with 
Farm  pond.  That  ditch  lets  the  water  of  Sudbury  river,  when  it 
is  diverted,  into  Farm  pond,  and  then,  at  the  other  extremity,  at 
the  southern  end  of  Farm  pond,  is  an  outlet,  controlled  by  planks, 
— temporary  planks,  — into  the  lake  ; consequently  if  all  the 
sluices  going  into  Farm  pond  are  shut,  the  only  gauging  necessary 
is  over  the  dam  or  through  the  flume  which  is  connected  with  the 
dam,  or  somewhere  on  the  main  channel  of  the  river.  If,  on  the 
contrary,  some  water  is  diverted  into  Farm  pond,  then  a gauging 
must  be  done  of  the  water  so  diverted,  and  not  only  by  the  actual 
flow  but  also  by  the  storage  into  Farm  pond,  if  it  is  not  to  vary 
at  all ; then,  thirdly,  if  the  city  is  using  the  water  from  Farm  pond 
into  the  ditch,  there  must  be  another  gauging  of  the  water  so 
diverted.  To  measure  these  different  flows,  first,  there  is  the  dam 
itself,  which  has  been  so  built  that  the  planks  used  to  make  it 
higher  and  lower  have  been  levelled,  and  the  thickness  or  depth  of 
flow  over  the  dam  itself  is  known.  When  the  water  is  not  high 
enough  to  flow  over  the  dam,  but  is  let  run  into  the  natural  channel 
of  the  Sudbury,  then  that  water  must  be  measured  in  the  flume 
which  is  connected  with  the  dam.  That  flume  is  a square  box  of 
timber,  well  made,  and  of  a sufficient  length  to  make  gaugings. 
Now,  as  a check  to  these,  a certain  section  of  the  river  has  been 
prepared  according  to  geometrical  lines,  so,  if  the  velocity  of  the 
water  is  known,  comparing  it  to  the  section,  a check  may  be  had 
of  the  gaugings  made  over  the  dam  and  through  the  flume.  As  to 
the  storage  in  Farm  pond,  that  has  been  measured  bjr  a scale 
placed  in  the  water  ; and  as  to  the  flow  into  the  temporary  conduit 
which  goes  to  Lake  Cochituate,  the  gaugings  have  been  done  with 
floating  tubes  and  also  with  current  meter.  Now,  as  to  the  methods 
used.  First,  in  1874  the  observations  of  the  river  were  only  occa- 
sional ; the  river  at  that  time  was  always  flowing. 

Q.  And  in  accordance  with  that  plan,  are  they? 

A.  According  to  that  profile,  yes,  sir.  The  river  at  that  time 
was  flowing  through  the  flume  connected  with  the  dams,  except 
wdien  the  freshet  might  be  too  high  and  it  passed  over.  At  the 
time  the  water  was  passing  through  the  flume  the  heights  were  re- 
corded, sometimes  every  two  and  three  and  four  days.  During  the 
intervals  the  level  was  not  observed  by  instrument,  and,  as  I lived 
in  the  neighborhood,  — almost  on  the  river,  I should  say,  — I used 
to  see  whether  the  flow  of  the  river  varied  much  ; and  whenever 


804 


Testimony  of  A.  Fteley. 


there  was  a variation  which  I could  detect,  I generally  sent  some 
one  to  take  the  measurement  which  I am  speaking  of.  In  Novem- 
ber, if  I remember  right,  — the  profile  shows,  — we  put  some  weirs 
in  the  flume,  and  for  four  days  and  four  nights  I had  observations 
taken,  just  as  exactly  as  possible,  every  ten  minutes  during  the 
time  the  flow  was  passing  over  those  weirs.  I had  the  same  kind  of 
gauging  made  for  a whole  da}7  and  night  in  January,  1875,  I be- 
lieve. Now,  in  1875,  when  I commenced  to  apply  some  more  ac- 
curate method  to  the  whole  flow,  I observed  the  river  again  when 
it  was  flowing  through  the  flume  connected  with  the  dam,  and  the 
condition  of  the  river  being  the  same  above  and  below,  I actually 
measured  the  flow  in  that  flume  corresponding  to  certain  heights 
of  the  water ; and  I have  applied  these  results  so  found  to  the 
levels  that  I had  measured  in  1874,  with  the  exception,  of  course, 
of  the  gaugings  of  November  and  January  which  I have  spoken  of, 
and  which  were  taken  by  weirs.  From  January,  1875,  I com- 
menced to  take  observations  every  day,  once  generally,  or  more, 
and  by  the  end  of  April,  I believe,  the  observations  were  taken 
three  times  a day,  morning,  in  the  middle  of  the  day  at  some  regular 
times,  and  evening.  Then,  a little  later,  I applied  the  current  meter 
to  those  measurements,  and  a large  part  of  the  gaugings  during  that 
year  were  made  with  that  instrument.  As  far  as  the  portion  that 
was  run  into  Lake  Cochituate  through  the  temporary  ditch,  I had, 
however,  another  method.  I used  some  floating  tubes  for  deter- 
mining the  flow,  and  after  determining  the  flow  at  a certain  eleva- 
tion I constructed  a table  by  which  I used  to  measure  the  flow 
every  day.  At  the  end  of  that  year,  in  December,  1875,  — at  the 
end  of  the  month,  rather,  — I put  up  an  apparatus,  a self-acting 
float,  or,  rather,  a self-registering  float,  to  give  us  the  level  of  the 
river  at  the  dam  at  all  times  at  night  and  day.  The  profiles  made 
by  this  apparatus  were  by  a certain  scale,  and  every  day,  some- 
times twice  a day,  whenever  the  opportunity  presented  itself,  the 
heights  of  the  water  were  measured  by  the  gauge  in  order  to  con- 
trol the  profile  made  by  the  self-acting  apparatus.  During  that 
year,  1876,  when  the  float  was  used,  the  other  methods  have  also 
been  used  of  measuring  a weir  and  using  the  current  meter. 

Q.  As  far  as  you  know,  have  all  the  proper  applications  known 
to  science  been  used  for  the  measuring  of  the  water  in  the  Sud- 
bury river  to  get  it  accurately  ? 

A.  Not  all  the  time,  sir. 

Q.  But  the  last  part  of  the  time? 

A.  The  last  part  of  the  time,  yes,  sir. 

Q.  And  the  other  part  of  the  time  you  have  fully  stated  the 
way  in  which  you  did  it? 

A.  Yes,  sir.  I want  to  make  an  observation  here.  In  1876, 
this  year,  there  has  been  a very  large  freshet,  so  large  that  our 
dams  were  not  ready  to  carry  it,  and  I would  not  call  the  measure- 
ment of  an  extreme  freshet  as  accurate  as  the  rest ; I would  call 
it  less  accurate. 

Q.  Where  do  you  live? 

A.  I live  in  Framingham. 

Q.  And  how  near  the  Sudbury  river  ? 


Testimony  of  A.  Fteley. 


805 


A.  About  half  a mile. 

Q.  And  where  is  your  office  ? 

A.  In  South  Framingham. 

Q.  And  in  going  from  your  house  to  your  office,  you  cross  the 
Sudbury  river? 

A.  Yes,  sir. 

Q.  How  long  have  you  known  and  watched  the  Sudbury  river? 

A.  I have  known  the  Sudbury  river  from  May  1873,  to  this 
date. 

Q.  Please  explain  what  these  tables  are  ? 

A.  These  tables  represent  the  flow  of  Sudbury  river  as  it  was 
estimated  in  1874,  and  the  beginning  of  1875,  as  I explained  it,  for 
the  time  the  observations  were  taken,  and  for  the  latter  part  of 
1875  and  1876.  It  is  the  daily  flow  in  millions  of  gallons  for  twenty- 
four  hours,  represented  in  black  letters,  and  in  cubic  feet  per 
second,  represented  in  red  figures. 

Commissioner  Russell.  Table  marked  “ A.  F.  1.” 

[Owing  to  the  difficulty  of  printing  the  tables  as  presented  by 
the  witness,  the  figures  giving  the  flow  in  gallons  and  the  black 
and  red  crosses  are  omitted.] 


806 


Testimony  of  A.  Fteley 


“A.  F.  1." 

Table  showing  Daily  Yield  of  Sudbury  River  and  Farm  Pond  during  1874, 
in  cubic  feet  per  second. 


Day. 

January. 

February. 

March. 

April. 

May. 

June. 

July. 

August. 

September. 

October. 

November. 

December. 

1.  . . . 

2.  . . . 

621.9 

227.2 

48.3 

3.  . . . 

377.8 

142.8 

23.8 

12.4 

. . . 

4.  . . . 

. . . 

164.0 

577.0 

. . . 

. . . 

260.3 

. . . 

13.8 

24.9 

. . . 

53.8 

5.  . . . 

6 . 

. . . 

233.2 

491.9 

186.3 

7.  . . . 

298.6 

507.1 

51.7 

8.  . . . 

. . . 

181.8 

. . . 

181.0 

32.9 

26.8 

. . . 

15.8 

. . . 

9.  . . . 

10  ...  . 

122.8 

12.7 

O • 

' 

12.4 

56.8 

11  ...  . 

227.4 

240.1 

CO 

a bn 

% .5 

12.4 

c < 

12.  . . . 

V J3 

12.4 

. . . 

13.  . . . 

255.1 

360.4 

. . . 

236.8 

63.1 

. . . 

37.6 

12.4 

. . . 

14.  . . . 

15.  . . . 

94.4 

105.7 

12.1 

16.  . . . 

164.0 

249.1 

17  ...  . 

35.6 

18.  . . . 

. . . 

552.0 

270.6 

371.3 

206.2 

56.6 

24.1 

. . . 

14.2 

. . . 

. . . 

19  ...  . 

20  ...  . 

21  ...  . 

20.7 

12.5 

18.4 

22.  . . . 

114.6 

44.9 

76.3 

44.9 

23  ...  . 

24.  . . . 

29.4 

17.3 

25  ...  . 

52.3 

21.5 

56.8 

26  ...  . 

27  ...  . 

50.9 

28  ...  . 

29  ...  . 

12.2 

94.4 

30.  . . . 

. . . 

. . . 

191.8 

. . . 

48.6 

32.8 

• . 

97.5 

31  ...  . 

... 

15.5 

42.2 

12.2 

From  the  1st  of  February  to  the  11th  of  May,  1874,  we  have  simply  the  yield  of  the  river, 
as  no  record  of  the  heights  of  Farm  pond  was  kept  or  of  the  condition  of  the  South  dam. 

No  record  of  heights  of  the  river  were  kept  till  February,  1874. 


Testimony  of  A.  Fteley 


807 


Table  showing  Daily  Yield  of  Sudbury  River  and  Farm  Pond  during  1875, 
in  cubic  feet  per  second. 


Day. 

j January. 

February. 

March. 

April. 

May. 

June. 

>> 

•-3 

August. 

September. 

October. 

November. 

December. 

1 . . . 

11.3 

626.1 

658.7 

133.8 

35.4 

39.4 

11.1 

12.4 

21.6 

130.6 

149.6 

2.  . . 

12.4 

13.5 

524.1 

922.6 

147.0 

41.1 

32.6 

13.8 

12.4 

36.3 

103.8 

104.4 

3.  . . 

. . 

31.4 

213.2 

830.0 

154.1 

34.0 

32.2 

39.7 

19.1 

20.9 

96.7 

78.0 

4.  . . 

. . 

81.4 

79.5 

891.4 

149.0 

29.4 

18.6 

63.3 

18.7 

14.7 

88.3 

60.6 

5.  . . 

13.0 

95.0 

53.8 

1379.9 

133.2 

31.2 

23.3 

60.8 

16.9 

19.3 

84.0 

45.0 

6.  . . 

13.0 

77.8 

51.4 

847.8 

137.1 

20.9 

112.0 

63.0 

19.6 

27.4 

68.2 

84.6 

7 . . . 

54.0 

53.8 

500.0 

304.8 

39.0 

160.4 

53.2 

14.7 

131.8 

41.0 

83.7 

8.  . . 

38.2 

41.0 

348.1 

371.9 

47.3 

121.0 

38.7 

23.2 

394.0 

61.7 

75.3 

9.  . . 

28.1 

46.7 

368.0 

303.2 

84.2 

60.2 

37.3 

18.7 

219.2 

49.0 

73.8 

10.  . . 

35.1 

45.0 

154.4 

284.0 

286.2 

41.6 

37.6 

10.7 

143.1 

116.8 

81.7 

11.  . . 

87.1 

37.7 

166.4 

218.1 

305.1 

27.7 

34.0 

17.6 

135.8 

319.0 

77.0 

12.  . . 

80.6 

122.4 

166.3 

184.1 

239.8 

36.0 

38.5 

13.0 

130.4 

274.4 

65.9 

13  . . . 

64.0 

90.0 

144.9 

140.8 

159.2 

29.4 

33.1 

13.0 

98.4 

229.7 

79.3 

14.  . . 

* 

50.4 

71.9 

100.7 

111.4 

133.3 

30.8 

29.8 

17.8 

69.4 

147.1 

66.2 

15.  . . 

c3 

40.1 

145.9 

201.1 

116.0 

102.1 

31.2 

20.7 

15.8 

44.1 

161.7 

58.9 

16.  . . 

QD  * * 

31.6 

412.7 

293.9 

102.1 

73.6 

26.8 

21.5 

22.3 

72.5 

151.9 

50.1 

17  . . . 

G 

30.2 

464.7 

431.6 

125.3 

61.4 

24.1 

23.3 

67.8 

66.4 

195.4 

55.5 

18.  . . 

§> 

o • • 

26.8 

418.0 

374.4 

100.6 

60.2 

24.9 

46.2 

63.9 

70.8 

150.4 

46.7 

19.  . . 

©~  12.4 

o 

26.8 

286.3 

309.4 

100.6 

317.7 

25.4 

112.6 

25.5 

85.8 

159.2 

28.2 

20.  . . 

o 

oo  ; . 

27.1 

235.9 

239.8 

123.8 

247.5 

23.5 

130.1 

48.6 

58.8 

136.4 

32.6 

21.  . . 

21.8 

187.6 

204.2 

131.5 

194.3 

25.8 

128.4 

33.7 

53.2 

113.1 

48.4 

22.  . . 

23.0 

130.7 

208.2 

125.3 

133.8 

25.8 

62.3 

41.9 

38.7 

112.5 

57.9 

23.  . . 

12.4 

91.7 

86.6 

189.2 

116.0 

102.3 

32.6 

69.6 

28.9 

37.6 

110.0 

65.9 

24.  . . 

294.1 

74.3 

174.5 

111.4 

73.8 

40.2 

69.9 

25.0 

24.3 

232.4 

61.4 

25  . . . 

965.8 

74.1 

162.4 

100.6 

61.7 

28.4 

58.3 

26.7 

36.2 

224.6 

58.6 

26  . . . 

1500.7 

84.8 

162.4 

103.6 

47.6 

27.7 

40.5 

15.8 

31.7 

197.5 

41.3 

27  . . . 

742.6 

111.4 

169.4 

89.7 

34.0 

27.5 

41.1 

28.2 

47.2 

248.9 

114.0 

28  . . . 

469.7 

163.7 

131.3 

80.4 

54.7 

28.2 

40.7 

25.5 

50.4 

227.2 

98.2 

29.  . . 

232.5 

144.7 

54.1 

45.6 

16.9 

22.7 

28.2 

42.7 

257.1 

71.5 

30  . . . 

355.5 

131.3 

38.7 

42.2 

12.4 

18.9 

22.7 

51.8 

210.8 

75.0 

31  . . . 

461.0 

37.1 

11.6 

14.7 

134.6 

87.4 

Average  . 

12.4 

180.0 

193.0 

366.8 

142.9 

104.6 

38.7 

47.6 

24.9 

77.7 

156.6 

70.2 

808 


Testimony  of  A.  Fteley, 


Table  showing  Daily  Yield  of  Sudbury  River  and  Farm  Pond  during  1876, 
in  cubic  feet  per  second. 


Day. 

J anuary . 

February. 

March. 

April. 

■AvW 

' 

June. 

July. 

August. 

September. 

October. 

November. 

December. 

1 . . 

95.3 

65.0 

67.6 

401.7 

170.8 

30.3 

16.2 

395.7 

11.3 

2 # 

97.0 

104.1 

72.5 

352.5 

149.1 

35.4 

9.0 

219.3 

18.3 

3 . . 

108.0 

98.2 

64.0 

289.6 

132.9 

31.6 

13.3 

146.2 

4.  . 

77.2 

77.0 

69.2 

676.0 

128.2 

27.6 

7.1 

90.5 

5 . . 

64.5 

56.8 

54.9 

985.4 

132.1 

52.4 

12.2 

63.4 

6.  . 

73.2 

56.9 

16.2 

966.4 

136.4 

56.5 

15.8 

46.2 

7 . . 

64.5 

240.4 

217.3 

911.3 

137.5 

43.8 

7.3 

53.5 

8.  . 

72  5 

234.5 

235.3 

868.1 

147.6 

41.0 

7.3 

42.4 

9.9 

9.  . 

82.4 

157.5 

198.8 

709.3 

182.8 

37.6 

7.3 

35.1 

9.9 

10.  . 

129.5 

144.6 

224.3 

568.5 

277.2 

34.5 

7.4 

28.2 

7.3 

11.  . 

117.6 

147.7 

173.7 

457.4 

293.0 

16.7 

7.1 

25.7 

16.5 

12  . . 

86.9 

272.4 

143.5 

416.4 

247.8 

36.5 

13.0 

20.6 

10.5 

13.  . 

60.8 

197.1 

147.4 

375.6 

205.4 

28.2 

10.8 

15.5 

11.3 

14.  . 

57.7 

196.2 

146.6 

342.8 

181.8 

27.1 

12.0 

21.6 

8.0 

15.  . 

48.4 

432.5 

147.0 

324.9 

156.4 

28.4 

14.5 

15.9 

6.8 

16  . . 

42.2 

493.3 

133.2 

304.6 

134.9 

25.7 

7.4 

22.0 

9.6 

17.  . 

58.6 

370.7 

125.6 

323.5 

118.8 

13.9 

14.1 

26.6 

20.7 

18.  . 

58.6 

278.6 

121.7 

284.2 

116.3 

11.0 

8.5 

30.5 

73.6 

19  . . 

107.4 

203.9 

117.6 

249.2 

134.7 

11.1 

6.5 

20.6 

51.4 

20.  . 

98.7 

160.1 

119.7 

236.7 

108.0 

15.5 

7.9 

12.5 

35.3 

21  . . 

71.5 

129.8 

1227.2 

239.9 

99.1 

21.8 

6.0 

25.2 

41.3 

22.  . 

66.4 

124.1 

1836.3 

221.7 

99.9 

25.1 

11.8 

21.5 

38.4 

23.  . 

65.0 

106.3 

855.5 

198.9 

138.6 

26.3 

22.4 

20.7 

24.  . 

67.7 

73.9 

505.6 

189.5 

125.9 

17.0 

15.0 

26.0 

25.  . 

52.0 

73.0 

404.1 

184.1 

94.4 

12.5 

25.7 

18.9 

26  . . 

50.3 

71.5 

3217.8 

175.0 

79.7 

23.0 

23.7 

14.7 

27  . . 

50.1 

59.7 

2476.7 

153.3 

78.9 

17.0 

21.0 

8.5 

28.  . 

65.7 

70.2 

1149.4 

148.7 

61.9 

26.0 

15.3 

13.6 

29.  . 

113.2 

75.5 

786.8 

164.4 

72.7 

10.5 

17.3 

11.4 

30  . . 

109.7 

792.8 

161.7 

44.9 

16.4 

33.6 

7.4 

31  . . 

85.5 

590.4 

57.1 

2S5.9 

11.1 

Average  . 

77.4 

164.5 

633.5 

396.0 

136.9 

26.7 

22.0 

48.7 

Testimony  of  A.  Fteley. 


809 


Q.  (By  Mr.  Child.)  You  spoke  of  a freshet  that  you  could  not 
measure  ; when  was  that  freshet  ? 

A.  It  was  at  the  very  end  of  March  or  the  beginning  of 
April. 

Q.  Not  the  July  freshet  which  has  been  talked  about? 

A.  No,  sir. 

Q.  What  is  that  table? 

A.  Table  marked  “A.  F.  2 ” is  explanatory  of  that  red  line,  re- 
presented on  Mr.  Herschel’s  profile.  It  represents  in  figures  the 
flow  through  the  temporary  ditch  in  cubic  feet  per  second  ; the  rate 
of  storage  in  Farm  pond  and  above  the  city^  dam ; then  another 
column  shows  on  account  of  diversion  and  storage,  the  amount  to 
be  subtracted  from  the  natural  rate  of  river ; another  column 
gives  the  natural  rate  of  the  yield  of  river  in  cubic  feet  per  second  : 
and  the  last  column,  which  is  a subtraction  from  some  of  the  other 
figures,  gives,  consequently,  the  number  of  cubic  feet  per  second, 
flowing  down  the  river  without  any  diversion. 


“A.  F.  2.” 

Sudbury  River  Gauging  at  Framingham , Mass.,  July  6 to  Sept.  25,  1876. 


Date. 

Flow  through  temporary 
ditch  in  cubic  feet  per 
second. 

Rate  of  storage  in  Farm 
pond,  and  above  dam, 
cubic  feet  per  second. 

Amount  to  be  subtracted 
from  natural  rate  of  riv- 
er on  account  of  storage 
and  diversion. 

Natural  rate  of  yield  of 
river,  cubic  feet  per 
second. 

Cubic  feet  per  second 
flowing  down  the  river. 

July 

6 

0.4 

0.4 

15.8 

16.2 

<< 

7 

0.4 

0.4 

7.3 

7.7 

a 

8 

4.1 

4.1 

7.3 

3.2 

a 

9 

5.0 

5.0 

7.3 

2.3 

a 

10 

5.1 

5.1 

7.4 

2.3 

a 

11 

4.8 

4.8 

7.1 

2.3 

a 

12 

10.7 

10.7 

13.0 

2.3 

it 

13 

8.5 

8.5 

10.8 

2.3 

a 

14 

9.7 

9.7 

12.0 

2.3 

a 

15 

12.2 

12.2 

14.5 

2.3 

a 

16 

5.1 

5.1 

7.4 

2.3 

a 

17 

11.8 

11.8 

14.1 

2.3 

a 

18 

6.2 

6.2 

8.5 

2.3 

a 

19 

4.2 

4.2 

6.5 

2.3 

a 

20 

5.6 

5.6 

7.9 

2.3 

a 

21 

3.7 

3.7 

6.0 

2.3 

810 


Testimony  of  A.  Fteley, 


Sudbury  River  Gauging , etc.  — Continued. 


Date. 

Flow  through  temporary 
ditch  in  cubic  feet  per 
second. 

Rate  of  storage  in  Farm 
pond,  and  above  dam, 
cubic  feet  per  second. 

Amount  to  be  subtracted 
from  natural  rate  of  riv- 
er on  account  of  storage 
and  diversion. 

Natural  rate  of  yield  of 
river,  cubic  feet  per 
second. 

Cubic  feet  per  second 
flowing  down  the  river. 

July  22 

9.5 

9.5 

11.8 

2.3 

“ 23 

19.8 

19.8 

22.4 

2.6 

“ 24 

9.8 

2.9 

12.7 

15.0 

2.3 

« 25 

33.1 

9.7 

23.4 

25.7 

2.3 

“ 26 

32.2 

10.8 

21.4 

23.7 

2.3 

“ 27 

34.9 

16.2 

18.7 

21.0 

2.3 

“ 28 

33.9 

20.9 

13.0 

15.3 

2.3 

“ 29 

29.7 

14.7 

15.0 

17.3 

2.3 

“ 30 

25.6 

5.7 

31.3 

33.6 

2.3 

“ 31 

31.9 

12.4 

44.3 

285.9 

241.6 

Aug.  1 

30.7 

1.2 

31.9 

395.7 

363.8 

“ 2 

30.9 

0.8 

31.7 

219.3 

187.6 

“ 3 

33.3 

0.5 

33.8 

146.2 

112.4 

“ 4 

31.8 

5.3 

37.1 

90.5 

53.4 

“ 5 

34.3 

6.8 

41.1 

63.4 

22.3 

“ 6 

34.1 

5.4 

39.5 

46.2 

6.7 

“ 7 

38.5 

3.9 

42.4 

53.5 

11.1 

“ 8 

36.9 

1.5 

38.4 

42.4 

4.0 

“ 9 

36.0 

3.2 

32.8 

35.1 

2.3 

“ 10 

35.5 

9.6 

25.9 

28.2 

2.3 

“ 11 

33.9 

10.5 

23.4 

25.7 

2.3 

“ 12 

30.7 

12.4 

18.3 

20.6 

2.3 

“ 13 

28.4 

15.2 

13.2 

15.5 

2.3 

“ 14 

25.8 

6.5 

19.3 

21.6 

2.3 

“ 15 

24.6 

11.0 

13.6 

15.9 

2.3 

“ 16 

22.9 

3.2 

19.7 

22.0 

2.3 

“ 17 

22.6 

1.7 

24.3 

26.6 

2.3 

“ 18 

22.5 

5.7 

28.2 

30.5 

2.3 

“ 19 

22.6 

4.3 

18.3 

20.6 

2.3 

“ 20 

20.4 

10.2 

10.2 

12.5 

2.3 

“ 21 

18.7 

4.2 

22.9 

25.2 

2.3 

“ 22 

19.5 

0.3 

19.2 

21.5 

2.3 

“ 23 

19.3 

0.9 

18.4 

20.7 

2.3 

Testimony  of  A.  Fteley, 


811 


Sudbury  River  Gauging , etc.  — Concluded.  • 


Aug.  24 
“ 25 

“ 26 
“ 27 

“ 28 
“ 29 

“ 30 

“ 31 

Sept.  1 
“ 2 
“ 3 

“ 4 

“ 5 

“ 6 
“ 7 

“ 8 
“ 9 

“ 10 
“ 11 
“ 12 
" 13 

“ 14 

“ 15 

“ 16 
“ 17 

“ 18 
“ 19 

“ 20 
“ 21 
“ 22 
“ 23 

“ 24 


Date. 

Flow  through  temporary 
ditch  in  cubic  feet  per 
second. 

Rate  of  storage  in  Farm 
pond,  and  above  dam, 
cubic  feet  per  second. 

Amount  to  be  substracted 
from  natural  rate  of  riv- 
er on  account  of  storage 
and  diversion. 

Natural  rate  of  yield  of 
river,  cubic  feet  per 
second. 

Cubic  feet  per  second 
flowing  down  the  river. 

18.9 

4.8 

23.7 

26.0 

2.3. 

18.4 

1.8 

16.6 

18.9 

2.3 

18.4 

6.0 

12.4 

14.7 

2.3 

17.3 

11.1 

6.2 

8.5 

2.3 

16.4 

5.1 

11.3 

13.6 

2.3 

15.1 

6.0 

9.1 

11.4 

2.3 

13.6 

8.5 

5.1 

7.4 

.2.3 

13.1 

4.3 

8.8 

11.1 

2.3 

13.2 

4.2 

9.0 

11.3 

2.3 

7.8 

8.2 

16.0 

18.3 

2.3 

0.4 

0.4 

1.9 

2.3 

2.5 

2.5 

4.8 

2.3 

3.4 

3.4 

5.7 

2.3 

2.9 

2.9 

5.2 

2.3 

3.9 

3.9 

6.2 

2.3 

7.6 

7.6 

9.9 

2.3 

11.2 

3.6 

7.6 

9.9 

2.3 

16.4 

11.4 

5.0 

7.3 

2.3 

* 

14.5 

0.3 

14.2 

16.5 

2.3 

13.9 

5.7 

8.2 

10.5 

2.3 

13.0 

4.0 

9.0 

11.3 

2.3 

12.7 

7.0 

5.7 

8.0 

2.3 

12.4 

7.9 

4.5 

6.8 

2.3 

7.9 

0.6 

7.3 

9.6 

2.3 

18.4 

18.4 

20.7 

2.3 

4.6 

4.6 

73.6 

69.0 

2.1 

2.1 

51.4 

49.3 

0.5 

0.5 

35.3 

34.8 

.... 

41.3 

41.3 

0.5 

0.5 

38.4 

37.9 

14.3 

14.3 

23.4 

9.1 

3.9 

3.9 

10.1 

6.2 

812 


Testimony  of  A.  Fteley. 


Q.  The  column  marked  in  this  way,  “ Amount  to  be  subtracted 
from  the  natural  rate  of  river  on  account  of  storage  and  diversion,” 
that  represents  the  space  between  the  black  and  the  red  line  ? 

A.  Yes,  sir. 

Q.  What  part  of  the  flow  of  the  Concord  river  is  represented  by 
the  yellow  line  here,  in  the  summer  months? 

A.  I don’t  think  I understand  }"Our  question. 

Q.  What  part  of  the  flow  of  the  Concord  river  does  the  Sudbury 
river  comprise  in  the  summer  months,  as  represented  by  this  yellow 
line  on  this  plan? 

A.  I have  not  calculated  it ; but,  looking  at  our  profile  and  know- 
ing the  scale  of  that  profile,  I should  say  something  like  one-ninth 
or  one-tenth.  It  is  a matter  which  can  be  calculated  from  this 
profile  accurately. 

Mr.  Child.  On  the  tables  which  have  been  put  in  here  this 
morning  it  is  estimated  exactly,  and  the  results  of  these  tables 
can  be  calculated  upon  them  ; by  which  it  appears  that  the  flow  of 
the  Sudbur}r  river  at  this  time  was  less  than  one-tenth,  as  Mr. 
Fteley  represents  it  by  calculating  the  profile. 

Mr.  Shattuck.  Do  you  mean  the  average? 

Mr.  Child.  The  average  of  the  summer  months. 

Q.  (By  Mr.  Child.)  You  can  tell  each  day,  can  3rou  not? 

A.  Yes,  sir. 

Q.  Take  the  26th  of  July,  1876.  You  compare  the  3rellow  line 
with  the  red  line,  3’ou  understand? 

A.  Yes,  sir.  I see  that  the  black  line  here  indicates  151,  as 
represented  by  the  scale. 

Q.  You  don’t  understand  the  question  I asked  3'ou.  I want  to 
know  the  proportion  the  flow  of  the  Sudbury  river  bears  to  the 
total  flow  that  it  would  be  if  there  was  no  diversion  between  the 
red  line  and  the  3Tellow  ? 

Mr.  Shattuck.  That  is,  assuming  that  all  went  there  in  exactly 
three  da3^s  after  it  started  ? 

Mr.  Child.  Yes. 

A.  For  that  date  it  represents  seven  and  seven- tenths. 

Commissioner  Russell.  That  is,  it  represents  ten  seventy’- 
sevenths  of  the  whole  flow? 

Mr.  Shattuck.  No.  It  represents  one-seventh  and  seven- 
tenths. 

Commissioner  Russell.  Well,  that  is  ten  sevent3T-sevenths,  is 
not  it? 

Commissioner  Francis.  Yes,  sir. 

Witness.  I will  take  the  26th  of  August,  if  3Tou  please.  The 
number  of  cubic  feet  here  is  154,  and  the  Sudbury  river  is  14  cubic 
feet. 

Q.  (By  Mr.  Child.)  Now  take  another  day.  Take  the  day 
when  it  is  the  smallest  proportion,  if  you  can  put  3'our  finger 
on  it? 

A.  The  smallest  proportion  must  be  in  the  freshet. 

Q.  Well,  take  the  highest  da3T  in  the  freshet  in  the  Sudbury 
river  ? 

A.  August  1st,  Sudbury  gives  here  396. 


Testimony  of  A.  Fteley.  813 

Q.  And  what  does  the  red  line,  the  whole,  give  that  same  da}T? 

A.  That  very  same  day  corresponds  to  570. 

Q.  Now  take  the  highest  amount  of  the  Concord? 

A.  The  highest  amount  of  the  Concord,  according  to  this  scale, 
was  780  cubic  feet. 

Q.  What  day  was  that  ? 

A.  That  was  the  3d  of  August. 

Q.  And  what  was  the  Sudbury  ? 

A.  The  Sudbury,  on  the  3d  of  August,  was  147. 

Q.  From  the  average  through  the  summer  months,  according  to 
this  plan,  you  judge  that  it  is  between  one-ninth  and  one-tenth  of 
the  aggregate  of  Sudbury  of  the  Concord  ? 

A.  Yes  ; it  seems  to  me  from  that  profile  it  is  so,  and  the  tables 
which  have  been  submitted  will  show  it  exactly. 

Q.  In  the  different  years  you  have  known  the  Sudbury  river, 
how  has  this  comparison  been  ? 

A.  I cannot  make  the  comparison,  because  I was  not  acquainted 
with  the  flow  of  the  Concord  river. 

Q.  From  j-our  observation  of  the  Sudbury  river,  how  does  it 
compare  in  these  two  years  with  this  year? 

A.  In  1875,  the  flow  was  higher  ; in  1874,  it  was  lower  and  the 
dry  season  longer. 

Q.  Now,  from  your  knowledge  of  the  whole  question,  in  your 
opinion  what  is  the  aggregate  of  the  Concord  river  and  the  Sud- 
bury river,  and  what  proportion  do  they  bear  to  each  other?  From 
what  you  do  know,  can  you  judge? 

A.  I don’t  know  exactly  what  the  question  is. 

Q.  From  what  you  know  of  the  whole  subject,  the  Concord  and 
the  Sudbury  river  measurements,  etc.,  whether  you  can  give  an 
opinion  as  to  the  proportion  the  Sudbury  bears  to  the  Concord 
river  in  the  summer  months,  during  the  last  four  years,  during  the 
time  you  have  known  it? 

A.  As  far  as  the  comparison  between  the  Sudbury  and  the  Con- 
cord river  is  concerned,  I don’t  know  anything  beyond  that  profile, 
and  all  I can  show  is  wdiat  is  shown  by  the  figures  ; but  so  long  as 
you  put  the  question  in  such  a manner,  I should  say  this  : that  in 
the  summer  months  generally  the  Sudbury  would  show  less  than  its 
proportion  of  water-shed  would  make  anybody  suppose. 

Q.  To  what  extent  ? 

A.  I cannot  sa}7. 

Q.  It  is  the  habit  of  engineers,  is  it  not,  to  ascertain  or  estimate 
the  flow  of  the  river  by  the  water-shed  ? 

A.  Yes,  sir. 

Q.  And  will  }tou  explain  why  the  flow  of  the  Sudbury,  in  this 
instance,  does  not  compare  with  the  water-shed,  and  what  parts  of 
the  year? 

A.  I should  say  that  the  Sudbury  is  in  the  same  condition  as  £\11 
rivers  of  that  size  are,  as  compared  with  a river  of  the  size  of  the 
Concord  ; and  as  a general  thing  all  rivers  having  about  the  same 
nature  of  water-shed,  that  would  be  the  general  result,  so  that  the 
Sudbury  river  makes  no  exception  in  that  case. 

Q.  Can  you  explain  what  the  reason  is? 


814 


Testimony  or  A.  Fteley. 


A.  This  is  to  a large  extent  a question  of  fact.  If  you,  for  in- 
stance, in  a dry  month,  examine  streams  running  in  such  condition 
as  the  Sudbury  does,  or  smaller  streams,  generally  you  find  that 
the  smaller  they  are  the  less  water  they  will  run  in  the  summer 
time.  Now,  for  instance,  you  go  to  the  very  small  feeders  of  the 
Sudbury,  and  I don’t  doubt  that  there  are  some  now  that  are 
entirely  dry  although  they  carry  some  water  during  the  wet  season, 
and  if  you  go  to  the  larger  streams  you  will  find  a flow  that  will 
not  be  very  considerable  ; but  by  this  gauging  j^ou  can  see  that  the 
Concord  river,  for  instance,  shows  a larger  flow,  comparative^7,  to 
its  water-shed  ; and  therefore  I say  it  is  a question  of  fact.  Now 
there  may  be  some  way  to  explain  it,  and  it  is  the  general  belief 
that  the  water  — 

Mr.  Shattuck.  Is  that  competent? 

Q.  (By  Mr.  Child.)  General  belief  among  engineers,  I suppose 
you  mean? 

A.  Yes,  sir. 

Mr.  Shattuck.  Any  knowledge  on  this  subject  that  is  recog- 
nized as  scientific  knowledge  would  perhaps  be  competent  to  testify, 
but  otherwise  it  would  not. 

Commissioner  Russell.  The  witness  has  stated  that  the  fact  as 
obseived  is  so  ; then  he  is  asked  to  explain  the  fact.  The  question 
is,  if  there  is  any  known  explanation  among  scientific  men,  and  if 
so  to  state  what  it  is. 

Q.  (By  Mr.  Child.)  Go  on,  sir. 

A.  I should  say  that  it  seems  to  me  that  the  whole  amount  of 
water-shed  and  the  strata  of  the  ground  below  the  surface  form  a 
very  large  reservoir  of  water  generall}7,  and  it  is  natural,  in  a dry 
season  of  the  year,  when  these  small  channels  are  not  so  full  of 
water,  to  find  more  water  come  out  from  the  streams  which  run  in 
low  ground  than  from  the  streams  which  run  in  high  ground. 

Q.  How  is  it  a fair  mode  of  estimating  the  production  of  any 
stream  to  average  the  rainfall  over  a period  of  either  a week  or  a 
month  or  a year? 

A.  Well,  the  larger  number  of  years  that  37ou  take  the  better  the 
estimate  w ill  be.  It  is  very  often  that  engineers  are  obliged  to 
base  themselves  on  the  rainfall  of  a few  37ears  wdien  the}r  cannot  get 
some  more  records  ; and  as  to  the  rainfall  of  a particular  week  or 
dajT,  I don’t  suppose  that  would  be  of  an}T  value. 

Q.  Suppose,  for  instance,  that  the  rainfall  during  Jul3T  and 
August,  as  indicated  on  this  map,  was  averaged  over  the  whole, 
would  that  average  be  any  criterion  to  jude  of  the  amount  of 
power  it  wrould  furnish  the  mills  upon  the  Concord  river? 

A.  You  mean,  if  the  rainfall  during  those  periods  from  Juty  to 
September  was  applied  to  the  rest  of  the  3’ear? 

Q.  No,  sir.  I11  the  first  place,  during  that  month,  would  it 
furnish  any  criterion  of  the  power  which  was  furnished  to  the 
mills? 

A.  No,  sir  ; I think  not. 

Q.  And  if  the  average  for  a month  were  taken,  will  it  not  in- 
clude the  wrater  that  could  not  be  stored  or  used,  and  run  over 
the  dams  to  waste  during  this  heavj'  freshet,  for  instance? 


Testimony  of  A.  Fteley. 


815 


A.  Yes,  sir. 

Q.  Have  you  gauged  other  streams  besides  the  Sudbury? 

A.  Yes,  sir. 

Q.  How  many? 

A.  The  last  gaugings  I made,  and  during  the  time  I was  en- 
gaged on  these  gaugings,  was  of  the  Abajonna  river,  and  of  the 
Mystic  pond  ; whether  it  was  before  that  or  after  I don’t  recollect 
exactly,  but  the  same  year  I gauged  a stream  running  out  of  Flax 
pond,  in  Lynn,  for  some  investigations  made  there  ; and  previous  to 
that  time  I made  some  gaugings  — . You  asked  me  and  I supposed 
it  was  gaugings  of  a natural  stream. 

Q.  Yes,  sir,  of  a natural  stream? 

A.  I recollect  having  guaged  in  1868,  I believe,  a canal  in 
Trenton,  that  distributes  power  to  the  various  mills,  so  as  to  make 
a distribution  of  it. 

Q.  Then  you  are  familiar  with  the  flowT  of  the  rivers  in  this  part 
of  the  country,  are  you?. 

A.  Yes  ; but  I limit  the  portion  to  where  I have  actually  made 
the  gaugings,  that  is  in  L}Tnn  and  north  of  Charlestown,  and  then 
Sudbury  river. 

Q.  What  is  the  character  of  the  Sudbury  river,  as  a river  which 
furnishes  stead}7  power  for  the  use  of  mills,  whether  it  is  a quick 
river  or  not? 

A.  I was  just  going  to  say  that  it  is  called  a quick  river.  When 
the  ground  is  tolerably  saturated,  and  when  we  have  rain,  it  shows 
very  quickly  and  passes  very  quickly. 

Q.  (By  Mr.  Butler.)  Which  is  the  better  quality  of  water 
for  the  purposes  of  the  City  of  Boston,  which  is  for  domestic  pur- 
poses— Lake  Cochituate  or  the  Sudbury  river? 

A.  I should  say  Lake  Cochituate,  because  Sudbury  river  has  no 
storage  reservoir  where  the  water  can  stand  now ; at  present  I 
should  say  Lake  Cochituate. 

Q.  Do  you  know  the  extent  to  which  it  is  proposed  to  make 
storage  basins  in  the  Sudbury  river? 

A.  Yes,  sir. 

Q.  Suppose  storage  basins  are  to  be  made  and  put  up  next  year, 
dams  closed  next  }Tear,  how  would  be  the  character  of  the  water 
found  in  these  storage  basins  as  compared  with  that  in  Lake 
Cochituate  ? 

A.  The  water  from  Lake  Cochituate  would  be  better,  because 
the  water  will  flow  some  extensive  meadows  for  a few  years 
to  come,  and  I suppose  the  water  will  not  be  quite  so  pure  as  a 
water  which  is  stored  in  a lake  which  has  existed  for  a long 
time. 

Q.  If  the  water  is  properly  used  by  the  city,  whether  it  would 
not  be  the  better  way  to  use  all  Lake  Cochituate  water  for  a series 
of  years  in  their  supply,  before  drawing  from  the  Sudbury  ? 

A.  Yes,  I should  say  it  would  be  better  to  use  Lake  Cochituate 
before  drawing  from  the  Sudbury. 

Q.  Whether  it  would  not  be  the  best  manner  of  using  the  water 
from  the  two  sources  of  the  supply,  the  Cochituate  and  the  Sud- 


Testimony  of  A.  Fteley. 


816 


bury,  to  let  in  as  little  of  the  Sudbury  as  possible  for  a series  of 
years  ? 

Mr.  Shattuck.  I object. 

Mr.  Butler.  You  are  to  estimate  the  damages  by  the 
taking.  The  city  has  now  a supply  from  the  Cochituate 
which  is  equal  to  twenty  million  gallons  a day.  It  has  that 
supply,  a permanent  supply,  of  a better  quality  of  water, 
we  will  assume,  for  the  purposes  of  the  argument.  Suppose 
that  I show,  as  I proposed,  by  this  witness,  that  for  the  next 
twenty  years,  taking  the  growth  of  the  city  into  consider- 
ation, seven  million  of  gallons  only  will  be  needed  from  the 
Sudbury,  or  will  be  taken  from  the  Sudbury,  and  that  the 
city  will  require  no  more  than  that.  Suppose,  then,  the  reser- 
voirs being  made  and  a large  storage  effected,  which  will  be 
let  down  the  Sudbury  into  the  Concord,  that  taking  will  not 
make  any  appreciable  " withdrawal  ” — that  is  the  word  of 
the  statute  — of  the  water  for  a series  of  years,  say  twenty 
years.  I don’t  mean  to  indicate  at  all  what  it  will  be,  but 
I am  only  illustrating  it : say  twenty  years.  Are  you  then 
going  to  give  a sum  in  damages  to-day,  to  compensate  for 
taking  all  of  Sudbury  river  to-day  and  give  an  amount  of 
money  which  will  compensate  for  what  is  done  to-day,  when 
what  is  supposed  to  be  done  to-day  is  actually  not  done  un- 
til twenty  years  hence  ? I don’t  think  any  state  of  the  law 
would  require  that  gross  injustice  to  be  done.  That  is  to 
say,  I don’t  think  mill-owners  on  the  streams  ought  to  enjoy 
the  water  for  twenty  years,  and  enjoy  the  income  of  the 
worth  of  that  water  for  twenty  years.  I don’t  think  that  is 
a proper  construction  of  the  statute ; therefore  1 offer  to 
show  that  for  a long  series  of  years,  for  the  purposes  of  the 
city,  there  will  not  be  any  water  actually  withdrawn  from  the 
Sudbury,  and  that  statute  being  the  actual  withdrawal,  that 
they  are  not  to  have  their  damages  till  the  actual  withdrawal, 
which,  it  seems  to  me,  has  been  made  to  meet  this  very  case. 
For  instance,  take  what  must  be  the  fact,  that  dam  will  not 
be  shut  up  until  a year  from  now,  so  that  no  water  will 
actually  be  withdrawn  until  a year  from  now,  except  the 
modicum  of  water  which  — 

Mr.  Shattuck.  Has  not  it  all  been  drawn  for  some 
months  ? 

Air.  Butler.  Except  the  modicum  of  water  which  has 
been  drawn  for  a short  period.  Assume  that  there  are  fifty 
cubic  feet  per  second  of  the  whole  Sudbury  river  in  its  flow, 
during  the  daytime,  — and  we  shall  continue  to  withdraw  only 
five  for  a period  of  twenty  years, — are  the  mill-owners  to 
have  the  pay  for  the  forty-five  cubic  feet,  and  have  it  too  ? 


Testimony  of  A.  Fteley. 


817 


I agree  we  are  to  pay  for  the  whole  Sudbury  river,  when  we 
withdraw  it.  It  is  said  that  there  can  be  but  one  estimate  of 
damages,  and  therefore  that  that  damage  must  be  estimated 
now,  and  that  the  taking,  by  filing  the  paper,  is  the  actual 
taking  for  which  we  are  responsible.  I agree  to  that  — that 
we  take  it  theoretically  now  and  are  being  assessed  for 
damages  now.  Then  the  question  recurs  to  us,  Mr.  Chair- 
man, what  are  those  damages?  We  are  not  to  pay  money 
theoretically,  we  are  to  pay  money  actually ; we  are  not  to 
pay  money  damnum  absque  injuria , but  for  a loss  with  an 
injury,  and  that  is  the  only  sensible  rule  ; therefore  this  tes- 
timony is  competent,  tending  to  show  the  fact  on  which  that 
rule  must  be  based. 

[Adjourned  to  Monday , October  16th , at  1.30  P.M.~\ 


818 


Testimony  of  A.  Fteley. 


Monday,  October  16th,  1876. 

The  commissioners  met  at  1J  o’clock. 

Mr.  Butler.  I want  to  call  the  attention  of  the  com- 
missioners to  the  peculiar  wording  of  the  first  section  of  the 
Act  of  1846  : "The  City  of  Boston  shall,  within  sixty  days 
from  the  time  they  shall  take  any  lands,  or  ponds,  or  streams 
of  water  for  the  purposes  of  this  act,  file  in  the  office  of  the 
Registry  of  Deeds  for  the  county  where  they  are  situate,  a 
description  of  the  lands,  ponds,  or  streams  of  water  so  taken, 
as  certain,  as  is  required  in  a common  conveyance  of  lands, 
and  a statement  of  the  purpose  for  which  taken,  which  said 
description  and  statement  shall  be  signed  by  the  said  mayor.” 
I will  put  in  the  whole  of  that  act,  chapter  167  of  the  Act 
of  1846. 


[See  front  of  book,  page  v.] 

I will  also  put  in  the  Act  of  1872,  chapter  177,  passed 
April  8th,  1872. 

[See  front  of  book,  page  xi.] 

Commissioner  Russell.  Will  you  put  the  question  Again, 
Gen.  Butler,  the  admissibility  of  which  was  under  discussion 
at  the  close  of  the  last  hearing  ? 

Mr.  Butler.  I offer  to  show,  by  this  witness  [Mr. 
Fteley],  that  in  the  natural,  and  economical,  and  proper  use 
of  the  water  by  the  city,  in  the  storage  they  make  of  the 
Sudbury  river,  they  will  not  practically  draw  any  water  from 
the  river  for  a long  series  of  years.  That  will  be  the  scope 
of  the  testimony  1 shall  offer.  And,  first,  for  this  reason  : 
he  has  already  testified  that  the  water  of  Cochituate  lake  is 
purer,  and  must  be  for  a series  of  years,  than  the  water  of 
Sudbury  river,  because  the  water  of  Sudbury  river  has  got 
to  be  reservoired  up,  and  the  decayed  vegetation  in  the  bed 
of  the  stream  gotten  rid  of;  therefore,  the  city  will  only 
take  out  as  much  of  the  Sudbury-river  water  as,  supple- 
mented to  the  Cochituate  water,  will  make  up  a sufficient 
amount  for  the  use  of  the  city.  That  use,  I say,  would  be 
the  only  proper  and  economical  use  of  the  water  that  any 
skilled  man  would  make  ; and  it  is  not  to  be  presumed  that 
the  city  will  do  anything  that  good  skill  and  judgment  would 
not  require ; and,  therefore,  I say,  that  as  the  water  is  not 


Testimony  of  A.  Fteley. 


819 


to  be  paid  for  until  it  is  withdrawn,  although  you  may  be 
satisfied  that  the  taking  is  the  filing  of  the  paper  (which  I 
deny,  because  the  statute  says  expressly  that  the  paper  shall 
not  be  filed  until  sixty  days  after  the  taking) , all  that  can 
be  referred  to  here  is  what  is  actually  withdrawn  at  the  time 
of  the  petition.  And  this  is  for  the  benefit  of  the  mill- 
owners  ; for  they  have  the  right  all  the  time,  when  a greater 
quantity  is  withdrawn,  to  make  their  petition  within  three 
years.  But,  assuming  that  that  is  not  so,  then  we  come  to 
the  question  of  damages  : wrhat  is  the  actual  damage  to  the 
parties?  Why,  they  are  not  daunged  until  the  water  is 
withdrawn.  It  is  not  like  the  case  of  a highway,  where  the 
laying  out  segregates  the  land,  and  the  damages  are  for  the 
taking  for  all  time.  The  question  is  : what  damages  should 
be  given  for  the  water  taken  ? I will  illustrate  it  by  this  : 
Suppose  you  should  be  satisfied  that  Lake  Cochituate,  with 
the  addition  of  five  feet  from  Sudbury  river,  would  supply 
the  City  of  Boston  for  the  next  twenty  years.  Assume  that 
that  fact  was  impressed  upon  your  mind  so  that  you  should 
not  doubt  it.  Then  suppose  that  you  should  come  to  the 
conclusion  that  there  were  fifty  cubic  feet  per  second  in  Sud- 
bury river.  Then,  I say,  it  would  be  a great  wrong  done  to 
assess  damages  for  taking  forty-five  cubic  feet  twenty  years 
before  it  was  taken,  because  the  sum  paid  for  that,  put  at 
interest  during  that  twenty  years,  would  double  and  quad- 
ruple, at  any  fair  rate  of  investment.  It  is  a practical  ques- 
tion, addressed  to  the  practical  judgment  of  practical  men. 
It  is  not  a mere  question  of  theoretical  damages,  it  is  an 
actual  damage;  and  the  whole  scope  of  the  act  is,  that 
damages  are  to  be  paid  for  the  water  withdrawn.  A dif- 
ferent rule  is  established  in  this  very  act  for  taking  land 
and  taking  water.  It  provides  in  the  first  section,  as  I have 
just  read,  that  "the  City  of  Boston  shall,  within  sixty  days 
from  the  time  they  shall  take  any  lands,  or  ponds,  or  streams 
of  water,  for  the  purposes  of  this  act,  file  a description  of 
the  lands,  ponds,  or  streams  of  water  so  taken.”  That  is, 
within  sixty  days  from  the  time  they  shall  take.  Then,  "if 
the  owner  of  any  land,  or  water  rights,  which  shall  be  taken 
as  aforesaid,  or  other  person  who  shall  sustain  damage  as 
aforesaid,  shall  not  agree  upon  the  damages  to  be  paid  there- 
for, he  may  apply  by  petition  for  the  assessment  of  his 
damages  at  any  time  within  three  years  from  the  taking  of 
the  said  land,  water,  or  water-rights  as  aforesaid,  and  not 
afterwards.”  That  applies  to  all.  Now,  then,  we  come  to 
the  eighth  section,  which  is  the  limitation  : "No  application 
shall  be  made  to  the  Court  for  assessment  of  damages  for 
the  taking  of  any  water  rights  ” [not  for  streams  and  ponds, 


820 


Testimony  of  A.  Fteley. 


but  for  water-rights]  " until  the  water  shall  be  actually  with- 
drawn, or  diverted  by  the  said  city  under  the  authority  of 
this  act;  and  any  person  or  corporation,  whose  water-rights 
may  be  thus  taken  and  aifected,  may  make  his  application 
aforesaid  at  any  time  within  three  years  from  the  time  when 
the  water  shall  be  first  actually  withdrawn  or  diverted  as 
aforesaid.” 

Then  there  was  a new  act,  the  Act  of  1849,  which  is  only 
of  value  because  it  shows  the  intent  of  the  legislature. 
Section  5 of  the  Act  of  187,2  provides,  that  " the  City  of 
Boston  shall  be  liable  to  pay  all  damages,”  etc.,  "and  all 
persons  claiming  damages  shall  have  all  the  rights,  immuni- 
ties, and  remedies,  and  be  subject  to  all  the  duties,  liabil- 
ities, and  regulations  which  are  provided  in  the  167th  chapter 
of  the  Acts  of  the  year  1846,  and  the  316th  chapter  of  the 
Acts  of  the  year  1850.”  The  Act  of  1850  was  simply  a 
tender  act.  The  Act  of  1849  provides  for  certain  rights  for 
the  city,  which  I will  read  to  you. 

Commissioner  Russell.  Has  that  act  anything  to  do  with 
the  Act  of  1846,  or  the  Act  of  1872  ? 

Mr.  Butler.  Yes,  sir.  "An  Act  in  addition  to  'An  Act 
for  supplying  the  City  of  Boston  with  pure  water.’”  The 
only  value  of  this  act,  perhaps,  is  to  show,  as  I have  said, 
the  intent  of  the  legislature  : — 

" Whenever  any  damage  shall  have  been  sustained  by  any 
persons  in  their  property,  by  the  taking  of  any  land,  water, 
or  water-rights,  or  by  the  constructing  of  any  aqueducts, 
reservoirs,  or  other  works,  for  the  purposes  of  this  act,  and 
of  the  act  to  which  this  is  in  addition,  and  such  persons  shall 
neglect  to  institute  proceedings  against  the  City  of  Boston, 
according  to  the  provisions  of  the  said  act,  for  the  space  of 
five  months,  it  shall  be  lawful  for  the  City  of  Boston  to  com- 
mence such  proceedings,  which  shall  go  on  and  be  deter- 
mined in  the  same  manner  as  if  commenced  by  the  persons 
who  shall  have  sustained  such  damage ; and  if  such  persons 
on  receiving  due  notice,  shall  not  come  in  and  prosecute  the 
proceedings  so  instituted,  judgment  shall  be  entered  against 
them,  and  they  shall  be  forever  barred  from  recovering  any 
damages  under  said  act.” 

I refer  to  this  act  only  to  show  that  the  city  had  certain 
rights,  commencing  at  the  same  time  with  the  parties.  That 
is  all  the  value  I put  upon  that  act.  If  those  parties  will 
not  go  forward,  the  city  may. 

Commissioner  Russell.  Is  that  act  applicable  to  the 
taking  under  the  Act  of  1872? 

Mr.  Butler.  I think  it  is,  but  whether  it  is  or  not,  is  of 
no  consequence  in  this  case  ; I am  only  citing  it  now  to  show 


Testimony  of  A.  Fteley. 


821 


the  intent  of  the  legislature, — that  everything  shall  date  from 
the  actual  withdrawal  of  the  water. 

Mr.  Shattuck.  I do  not  think  I have  anything  to  add  to 
what  I said  in  my  opening.  The  act  requires  the  city  to 
take  oil  the  water  of  Sudbury  river , and  the  limitation  of 
time  for  bringing  the  petition  is  determined  by  the  time  ot 
the  actual  taking.  Nothing  else  is  determined  by  it. 

Mr.  Butler.  That  leaves  us  right  where  we  stood  before. 
Y ery  oracular ; but  I do  not  see  that  that  changes  matters 
at  all. 

Commissioner  Russell.  I should  like  to  hear  you,  Mr. 
Shattuck,  as  to  your  position  that  the  act  " requires  ” the 
city  to  take  all  the  water  of  Sudbury  river. 

Mr.  Storey.  Is  not  the  question  now  on  the  admissi- 
bility of  the  testimony  offered  by  General  Butler? 

Commissioner  Russell.  The  question  now  is  as  to  the 
competency  of  the  question  put  to  the  witness.  That  is  the 
only  matter  directly  before  us ; but  General  Butler  has  inti- 
mated that  he  proposes  by  other  interrogatories  to  raise  the 
whole  question,  and  perhaps  it  may  as  well  be  considered 
now. 

Mt.  Shattuck.  The  City  of  Boston,  of  course,  had  no 
authority  to  take  property  except  under  the  act,  and  in  ac- 
cordance with  the  terms  of  the  act,  and  they  must  pursue  the 
act  strictly.  The  very  first  sentence  is,  that  the  City  of 
Boston  is  authorized  to  take  all  the  water  in  Sudbury  river. 

Mr.  Butler.  That  is  the  very  word,  — "authorized.” 

Mr.  Shattuck.  They  have  proceeded,  and  in  terms 
taken  all  the  water  in  Sudbury  river.  It  may  not  be  neces- 
sary now  to  discuss  the  question  whether  they  were  bound 
to  do  it  or  not,  although  it  has  always  seemed  to  me  clear 
that  they  were  bound  to  do  it ; that  that  was  the  purpose  of 
the  act,  in  order  to  avoid  any  controversy  about  what  was 
taken.  It  is  difficult,  as  I said  in  my  opening,  to  determine 
under  any  circumstances  the  damage  done  by  taking  water, 
and  in  order  that  there  should  be  as  much  certainty  as  was 
practicable,  the  legislature  made  the  terms  of  the  act  author- 
izing the  taking  such  that  the  city  have  no  authority  to  take 
a part.  They  have  no  authority  to  take  some  of  the  water 
when  they  are  authorized  to  take  the  whole  of  it.  I do  not 
see  how  I can  more  clearly  state  the  argument  in  favor  of 
that  theory  than  to  read  the  act ; blit,  as  1 have  already  said, 
they  have  proceeded  to  take  the  whole  of  it,  and  we  are 
assessing  damages  now  once  for  all.  That  point  has  been 
fully  argued  by  some  of  the  gentlemen  who  have  addressed 
the  commissioners  in  the  other  cases,  and  I have  nothing  to 
say  upon  that.  They  have  taken  the  water,  and  therefore,  as 


822 


Testimony  of  A.  Fteley. 


there  is  compensation  to  be  had  only  once,  we  must  have 
full  compensation.  Then  they  are  not  to  pay  us  for  what  is 
actually  taken,  but  they  are  to  pay  us  damages  caused  by 
the  taking  of  water-rights.  It  is  precisely  like  the  case  of  a 
paper  taking  of  land  for  the  building  of  a highway.  The 
parties  enter,  lay  out  the  highway  on  paper,  and  the  ques- 
tion of  damages  is  determined  with  reference  to  the  use  of 
the  property  whenever  it  may  be  made.  That  use  may 
change.  The  use  may  be  greater  at  one  time  than  another. 
Originally,  as  the  law  stood  before  the  case  in  1st  Metcalf, 
the  damage  included  all  changes  in  the  grade  of  the  road  for 
all  time.  The  real  damage  might  not  occur  for  a hundred 
years,  but  it  was  paid  for  at  the  time  of  the  paper  taking. 

In  this  case  they  take  the  right  to  all  the  water  in  Sudbury 
river,  and  we  claim  that  the  owner  of  any  land,  water,  or 
water-rights,  had  a right  to  have  the  Sudbury  river  flow  in 
its  natural  channel,  and  every  mill-owner  had  a right  to  have 
it  flow  on  the  line  on  which  he  had  that  right.  " And  if 
the  owner  of  any  land,  water,  or  water-rights  which  shall  be 
taken  as  aforesaid,  or  other  person  who  shall  sustain  dam- 
age as  aforesaid,  shall  not  agree  upon  the  damages  to  be 
paid  therefor,  he  may  apply  by  petition  for  the  assessment 
of  his  damages  at  any  time  within  three  years  from  the  taking 
of  the  said  land,  water,  or  water-rights  as  aforesaid,  and  not 
afterwards.” — (Section  6,  chapter  167  of  the  Acts  of  1846.) 
"No  application  shall  be  made  to  the  Court  for  the  assess 
ment  of  damages  for  the  taking  of  any  water-rights  until  the 
water  shall  be  actually  withdrawn  or  diverted  by  the  said 
city  under  the  authority  of  this  act.” — (Sections.)  That 
does  not  mean  that  all  the  water  shall  be  diverted.  That  is 
the  provision,  as  suggested  by  Judge  Abbott  in  the  Ipswich 
case,  where  the  Court  decided  that  there  should  be  only  one 
compensation  for  the  water.  The  provision  in  the  Act  of 
1872  is  : “ The  City  of  Boston  is  hereby  authorized  by  and 
through  the  agency  of  the  Cochituate  Water  Board  to  take, 
hold,  and  convey  into  and  through  said  city  all  the  water  of 
Sudbury  river.”  Now,  is  there  any  authority  for  them  to 
take  any  less  than  that?  And  as  they  have  taken  the  whole 
of  the  water-rights,  it  is  very  clear  that  they  must  pay  for 
them.  I have  discussed  this  question  as  fully  as  I care  to 
in  the  opening,  and  I may  wish  to  add  something  in  the 
closing  argument ; but  I do  not  care  to  say  anything  more 
now. 

Mr.  Storey.  As  I understand  it,  the  counsel  for  the  city 
offer  to  show  by  this  witness,  that  although  the  City  of  Boston 
have  taken  the  whole  of  the  water  of  Sudbury  river  by  their 
written  taking,  which  has  been  recorded  in  the  Registry  of 


Testimony  of  A.  Fteley. 


823 


Deeds,  they  will  not  have  occasion  to  use  for  the  needs  of 
the  City  of  Boston  the  whole  of  the  water  for  some  twenty 
years,  and  therefore  that  we  are  to  be  paid  damages,  not  for 
what  they  have  taken  by  their  paper  taking,  but  for  what 
they  are  actually  likely  to  use  during  the  next  twenty  years. 
I do  not  perhaps  understand  precisely  the  proposition  of  the 
defendant’s  counsel.  I have  stated  his  claim  as  I under- 
stand it. 

Commissioner  Russell.  As  I understand  his  proposition, 
it  is  not  that.  It  is  not  that  you  are  to  be  paid  only  for 
what  is  to  be  used  in  the  next  twenty  years,  but  that  you  are 
to  be  paid  now  only  the  damages  which  will  be  sustained  by 
the  use  of  the  water  twenty  years  hence.  It  is  exactly  the 
converse  of  the  proposition  that  you  are  to  be  paid  only  for 
the  water  used  in  the  next  twenty  years. 

Mr.  Storey.  In  other  words,  they  are  to  pay  to-day  a 
sum  of  money  which,  if  put  at  interest  now,  twenty  years 
hence  will  amount  to  the  whole  value  of  the  water  of  the 
Sudbury  river. 

Mr.  Butler.  Oh,  no ; I only  used  twenty  years  as  an 
illustration.  I do  not  think  it  will  be  needed  for  sixty  years. 
I have  gone  into  a little  calculation,  and  I do  not  think  it 
will  be  wanted  for  sixty  years. 

Mr.  Storey.  I use  twenty  years  in  the  same  sense  you 
did.  There  are  only  two  aspects  in  which  that  evidence  can 
be  competent.  It  can  be  competent  for  the  purpose  of  show- 
ing that  the  city  have  not  yet  taken  the  water,  and  there- 
fore our  petition  under  the  statute  is  prematurely  tiled ; or 
it  may  be  competent  for  the  purpose  of  showing  how  much 
water  they  have  taken,  and  therefore  how  large  our  damages 
ought  to  be.  On  the  first  quesion  the  undisputed  evi- 
dence in  the  case  shows  that  they  have  taken  all  the 
water  of  Sudbury  river.  In  that  connection,  I desire  to 
call  the  commissioners’  attention  to  the  precise  language  of 
the  record.  On  the  17th  page  of  the  record  is  the  written 
taking  which  was  filed  in  the  Registry  of  Deeds,  in  which  it  is 
set  forth  that,  “ the  City  of  Boston,  by  the  Cochituate  Water 
Board,  duly  appointed  and  constituted,  and  by  virtue  of  the 
power  and  authority  in  said  act  given,  and  in  part  execution 
of  the  same,  have  taken,  and  by  these  presents  do  take,  for 
the  sole  use  and  benefit  of  the  said  City  of  Boston,  all  the 
water  of  Sudbury  river , so  called,  at  and  above  the  dam 
built  by  the  City  of  Boston  in  1872,  five  hundred  feet  more 
or  less  below  the  crossing  of  the  said  Sudbury  river  by  the 
Boston,  Clinton  and  Fitchburg  railroad.”  Then  follows  a 
more  detailed  description  of  the  brooks,  ponds,  streams,  and 
water-courses.  But  the  language  is  that  the  City  of  Boston, 


824 


Testimony  or  A.  Fteley. 


by  a written  taking,  which  they  have  recorded,  take  all  the 
water  of  Sudbury  river.  Now,  in  analogy  to  the  provision 
in  the  highway  act,  that  after  the  paper  taking  has  been 
made,  the  damages  that  a man  has  sustained  by  the  loss  of 
land  shall  not  be  paid  until  the  city  has  actually  entered  upon 
the  occupation  of  the  property,  there  is  a provision  in  the 
Act  of  1846  that,  "No  application  shall  be  made  to  the  Court 
for  the  assessment  of  damages  for  the  taking  of  any  water- 
rights  until  the  water  shall  be  actually  withdrawn  or  diverted 
by  the  said  city  under  the  authority  of  this  act ; and  any  per- 
son or  corporation  whose  water-rights  may  be  thus  taken  and 
affected,  may  make  his  application  aforesaid  at  any  time 
within  three  years  from  the  time  when  the  water  shall  be 
first  actually  withdrawn  or  diverted  as  aforesaid.”  The  evi- 
dence in  the  case,  the  admission  of  the  city,  and  the  evidence 
which  the  commissioners  obtained  from  the  view,  show  that 
a dam  has  been  built  across  Sudbury  river  by  which  all  the 
water  has  been  diverted  except  the  1,500,000  gallons  which 
by  the  terms  of  the  act  are  to  be  allowed  to  flow  for  the 
purpose  of  creating  a running  stream ; and  therefore,  on  the 
question  whether  our  petition  is  properly  here,  it  is  obvious 
that  everything  which  the  act  requires  has  been  done.  The 
paper  taking  has  been  filed  ; the  whole  water  has  been  actually 
diverted,  and  I do  not  understand  tjiat  it  is  seriously  con- 
tended that  our  petition  is  prematurely  filed. 

The  thing  for  which  we  are  to  be  paid  damages  is  the 
thing  which  has  been  taken,  and  the  thing  which  lias  been 
taken,  by  the  terms  of  the  act,  is  described  in  the  paper 
taking  which  has  been  made  and  recorded.  It  is  the  dam- 
ages which  we  sustain  by  the  taking  of  that  which  we  are 
entitled  to  receive.  We  are  not  asking  here  damages  for  the 
diversion  from  us  of  so  many  gallons  of  water.  We  are 
asking  damages  for  the  taking  of  the  valuable  right  to  have 
all  the  water  of  Sudbury  river  flow,  as  it  has  been  accus- 
tomed to  flow,  past  our  mill.  That  right  has  seen  taken ; 
the  actual  entry  has  been  made  ; and  the  right  being  gone,  it 
makes  no  difference  whether  the  city  of  Boston  proposes  to 
avail  itself  of  the  property  which  they  have  taken  or  not. 
Suppose,  for  example,  the  ordinary  highway  case.  Suppose 
the  City  of  Boston  by  a paper  taking  takes  ten  feet  off  of  the 
front  of  my  estate  to  widen  the  street.  Suppose  the  city 
enters  the  estate  and  takes  out  one  window.  They  have 
made  an  entry,  my  petition  can  be  filed,  and  I can  obtain  all 
my  damages.  If  the  whole  front  of  my  building  remains 
otherwise  undisturbed  for  ten  years,  it  is  their  fault,  not 
mine ; and  if  they  do  not  choose  to  use  the  property  they 
have  taken  from  me,  that  does  not  affect  the  question  of  dam- 


Testimony  of  A.  Fteley. 


825 


ages.  Now,  in  this  case,  they  have  taken  the  water  of 
Sudbury  river.  They  have  actually  diverted  that  water  to 
their  advantage,  and  they  propose  to  continue  to  divert  it 
whenever  necessity  requires.  The  right  which  we  have  to 
have  that  water  flow  is  gone,  and  we  are  entitled  to  recover 
damages  for  the  value  of  that  right.  If  the  construction 
which  General  Butler  claims  is  correct,  it  would  seem  that  if 
they  take  200  gallons  to-day,  we  must  bring  our  action 
to-day  for  that;  and  if  they  take  500  gallons  to-morrow,  we 
must  bring  our  action  for  that,  and  so  on  for  the  next  twenty 
years.  He  does  not  undertake  to  show  what  the  city  of 
Boston  have  done,  but  he  asks  the  witness  his  opinion  as  to 
what  a prudent  city,  supposing  it  grows  no  faster  in  the  next 
twenty  years  than  it  has  in  the  last,  would  be  likely  to  do 
during  that  period.  Such  evidence  seems  to  me  so  grossly 
immaterial  that  I hardly  care  to  trouble  the  commissioners 
with  any  further  argument. 

Mr.  Butler.  There  is  nothing,  it  seems  to  me,  so  dan- 
gerous in  discussing  questions  as  mere  analogies.  I think 
we  are  to  look,  therefore,  precisely  to  the  case  at  bar  to  see 
what  is  authorized  to  be  done,  what  has  been  done,  and  what 
remedies  are  provided  for  what  has  been  done.  It  is  insisted 
by  my  brother  Shattuck  that  the  city  must  take  all  the  water. 
Upon  the  language  of  the  act,  if  that  is  to  be  insisted  upon, 
then,  they  must  convey  it  into  the  city,  because  the  same  act 
says  that  they  are  authorized  " to  take  all  the  water  of  Sud- 
bury river,  and  hold  it,  and  convey  it  to,  into,  and  through 
said  city.”  If  they  do  not  do  that,  then  they  do  not  pursue 
their  authority.  That  I hardly  think  will  do  as  a construc- 
tion. 

Now,  then,  the  act  gives  them  the  authority  to  take  the 
water;  but  as  water  differs  from  land,  if  they  do  not  take  it, 
and  actually  withdraw  it,  the  party  below  is  not  injured. 
The  statute  has  provided  expressly  that  no  damages  shall  be 
assessed  except  for  water  actually  withdrawn.  I think  I am 
correct  in  that. 

Commissioner  Russell.  There  is  no  such  phraseology. 

Mr.  Butler.  No,  sir.  The  phraseology  is  before  you. 
The  phraseology  is,  "No  application  shall  be  made  until  the 
water  is  withdrawn.”  You  cannot  assess  damages  without 
an  application.  Very  well.  Then,  if  no  application  be  made 
until  the  water  is  withdrawn,  what  is  that  application  for? 
Why,  it  is  for  the  damage  sustained.  How?  Not  by  any 
technical  taking,  but  by  the  actual  withdrawal  of  the  water. 
It  is  agreed  that  the  water  must  actually  be  withdrawn,  some 
of  the  water,  before  they  can  maintain  their  application  for 
damages.  Now,  what  are  they  going  to  have  damages  for? 


Testimony  of  A.  Fteley. 


82tf 

Why,  it  is  for  injury  done.  That  injury  is  the  withdrawal 
of  the  water ; but  they  say,  by  analogy  to  the  highway  act, 
they  are  to  have  all  their  damages  assessed  when  one  drop  of 
water  is  withdrawn,  although  another  one  never  is  to  be 
withdrawn  ; or,  in  other  words,  that  they  should  have,  as  was 
the  case  under  the  old  highway  act,  where  a road  was  laid 
out  over  a man’s  land,  and  discontinued  the  next  day,  he  had 
the  right  to  all  his  damages,  if  the  road  was  to  remain  for- 
ever discontinued.  Now,  suppose  that  under  the  old  high- 
way act,  it  said,  " the  County  Commissioners  may  take  any 
land  for  a road  that  they  choose,  but  there  shall  be  no 
damages  allowed  until  that  land  is  actually  used,”  how 
would  it  be  then?  Could  they  have  any  damages  until  it 
was  actually  used,  and  could  they  have  damages  except  for 
the  use  of  it?  Are  they  going  to  assume  that  some  years 
hence  it  will  be  used? 

Now,  won’t  you  take  into  consideration  this  fact?  Here 
was  a great  public  work  for  taking  water.  Everybody 
understands  that  the  water  withdrawn  is  measured  every 
day,  and  is  to  be  measured  every  day,  is  capable  of  being 
measured  every  day,  so  that,  instead  of  going  into  calcula- 
tions of  water-sheds,  and  going  into  calculations  of  evapora- 
tion, basins,  and  comparisons,  and  all  the  uncertainties, 
every  man,  if  my  proposition  is  correct,  can  know  exactly 
how  much  is  taken,  and  have  his  damages  for  exactly  what 
he  has  lost. 

Mr.  Siiattuck.  Do  you  mean  to  say  that  we  are  to  have 
our  damages  from  day  to  day?  I want  to  understand  you. 

Mr.  Butler.  I will  try  to  make  what  I mean  plain  to 
everybody’s  capacity.  I may  mean  wrong,  but  it  is  not  one 
of  my  faults  that  I cannot  state  what  I do  mean.  I am  cer- 
tain about  that.  I by  no  means  say  that  they  are  to  have  an 
action  every  day ; the  thing  would  be  preposterous.  But 
once  in  three  years  they  can  have  an  action  for  every  drop  of 
water  that  has  been  taken.  That  is  my  proposition,  and 
that  amount,  by  a public  officer,  acting  for  the  public,  is 
measured,  in  practice,  and  must  be  measured,  in  fact,  so  that 
they  can  have  every  element  of  their  damage  ascertained, 
and  that  gives  force  to  the  words,  "first  withdrawn.”  For 
instance,  at  the  end  of  three  years  from  the  first  withdrawal, 
it  will  be  known  on  the  day  they  file  their  petition  just  what 
has  been  taken,  and  they  get  their  damages  for  that,  or  any 
intermediate  time  they  choose  to  begin.  Then,  if  the  city 
draws  no  more,  that  ends  it.  If  the  city  afterwards  draws 
some  more  water,  then  that  new  water  is  first  withdrawn  or 
taken,  and  then,  three  years  after  that,  they  may  file  their 
petition  again.  That  gives  them  the  right  to  damages  for 


Testimony  of  A.  Fteley. 


827 


every  drop  of  water  which  is  taken.  There  is  no  provision 
for  giving  damages  for  water-rights,  as  independent  from 
water,  because  when  the  act  says  we  are  to  pay  for  water- 
rights,  as  differing  from  water  actually  taken,  it  says  we  may 
take  all  the  water-rights  that  they  have  got,  or  ever  can  have, 
and*  unless  we  withdraw  some  portion  of  that  water,  they 
have  no  claim  for  damages.  They  can  only  get  damages  for 
that  which  is  withdrawn. 

Mr.  Storey.  You  said  there  was  no  provision  for  the 
assessment  of  damages  for  water-rights.  I desire  to  call 
your  attention  to  section  8 of  the  Act  of  1846  : "No  appli- 

cation shall  be  made  to  the  Court  for  the  assessment  of 
damages  for  the  taking  of  any  watev-riglds  until  the  water 
shall  be  actually  withdrawn  or  diverted.” 

Mr.  Shattuck.  What  do  you  say  to  the  Ipswich  case? 
This  case  is  as  near  like  that  as  can  be. 

Mr.  Butler.  The  Ipswich  or  Wenham  case  is  quite  in 
harmony  with  all  I am  saying.  In  that  case,  it  was  not  a 
stream  of  water  that  wTas  taken.  The  city  took  Wenham 
lake,  and  took  the  land  all  around  it,  and  this  question  did 
not  arise.  Every  drop  of  water  in  that  lake  was  actually 
taken,  diverted,  and  stopped  from  flowing.  Now,  if  I can  go 
on  a little  while  longer  (not  to  be  tedious,  for  I only  desire 
to  indicate  my  point),  this  is  not  a new  question  to  me, 
because  the  city  of  Lowell  filed  a taking  of  the  whole  of 
Merrimack  river.  They  did  not  want  but  about  3,000,000 
gallons  a day  at  the  outside ; but  they  took  the  whole  of 
Merrimack  river,  so  far  as  it  appeared,  and  the  claim  was 
raised  that  the  city  had  got  to  pay  for  the  whole  of  Mer- 
rimack river.  But  the  good  sense  of  the  gentlemen  who 
raised  that  claim  prevented  their  pressing  it,  and  we  made 
an  adjustment  directly.  I was  at  that  time  called  upon  to 
see  what  was  the  construction  of  that  act,  the  language  of 
which,  so  far  as  it  regards  damages,  was  substantially  the 
same  as  the  language  of  this  act.  It  was  damages  for  the 
water  withdrawn.  That  is  to  say,  there  can  be  but  one 
exercise  of  the  right  to  take.  When  they  desire  to  take 
the  whole  water  of  the  river,  then  they  are  to  pay  dam- 
ages as  they  withdraw  it,  and  for  what  they  withdraw, 
because  it  was  not  intended  that  there  should  be  any  spec- 
ulative or  theoretical  damages.  There  is  no  other  way  to 
adjust  this  question,  and  it  has  not  been  decided  to  the  con- 
trary anywhere.  The  act  is  sui  generis , dealing  with  the 
thing  itself.  Ponds  are  part  of  the  land  ; streams  are  part  of 
the  land ; they  are  described.  Water-rights  are  the  rights 
that  men  have  in  the  streams,  not  owning  the  land  through 
their  continuous  length.  That  is  the  difference,  as  I under- 


828 


Testimony  of  A.  Fteley. 


stand  it.  For  instance,  if  I have  the  whole  of  a stream  in 
my  land,  I own  all  that  stream  of  water  from  its  head  to  its 
confluence  with  another  stream,  subject,  of  course,  to  the 
rights  of  those  below  to  have  the  water  run.  When  that  is 
taken  from  me,  there  is  the  end,  but  the  riparian  proprietor 
below,  who  has  the  right  to  have  the  water  run  beyond  my 
land,  has  a right  to  what?  Not  to  the  whole  stream  which  I 
have,  for  I have  the  right  to  use  it,  subject  to  certain  restric- 
tions, but  to  the  amount  of  water  diverted,  — no  more  and 
no  less.  That  is  one  view  of  the  matter. 

Now  the  other  point  is  this  : that  we  are  not  to  pay  dam- 
ages for  water  that  is  not  withdrawn  until  twenty  years 
hence,  and  that,  in  considering  these  damages,  it  is  a neces- 
sary element  to  show  whether,  according  to  the  usual  and 
ordinary  mode  of  the  use  of  water,  any  water  will  be  taken 
for  twenty  years,  or  withdrawn  within  twenty  years.  Those 
are  the  two  propositions. 

My  brother  Child  suggests  a point  that  I argued  to  you 
before,  — that  you  ought,  in  giving  damages,  to  see  what  would 
be  the  effect  of  so  much  capital  paid  to  a man  at  the  present 
time  for  future  damages.  To  get  at  that  element,  I think 
this  testimony  is  admissible. 

Commissioner  Russell.  The  commissioners  have  con- 
ferred together  upon  the  question  which  is  now  raised, 
although  before  we  had  the  full  benefit  of  the  arguments 
which  have  now  been  submitted,  and  I find  my  associates  see 
no  reason  to  vary  their  opinion  then  formed,  after  having  heard 
more  fully  counsel  on  both  sides.  We  think  that  in  deter- 
mining the  question  no  force  is  to  be  given  to  the  provision 
of  section  8 of  the  Act  of  1846 ; that  that  section  was  evi- 
dently designed  merely  to  fix  a date  at  which  the  parties 
who  have  sustained  an  injury  by  the  taking  of  their  water- 
rights  may  commence  proceedings  to  recover  their  damages ; 
that  it  was  not  designed  to  affect  the  nature  of  their  remedy, 
or  the  rule  for  assessing  those  damages.  The  provisions  of 
section  1 of  the  Act  of  1846  correspond  to  the  ordinary 
provisions  for  filing  the  location  of  a railroad,  or  for  passing 
an  order  for  the  taking  of  lands  for  a highway  by  the  select- 
men, or  county  commissioners,  or  aldermen.  The  8th 
section  merely  provides  that  such  paper  taking,  or  location, 
shall  not  authorize  a party  at  once  to  take  proceedings  to 
have  his  damage  assessed,  but  that  his  right  to  recover  shall 
be  postponed  until  the  time  of  the  actual  taking,  — in  this 
case,  the  actual  diversion  of  the  water,  not  the  whole,  but 
any  portion  of  the  water ; and  upon  such  diversion,  be  it 
more  or  less,  we  think  his  right  to  recover  his  whole  damages 
accrues ; and  we  think  the  damages  must  be  assessed  upon 


Testimony  of  A.  Fteley. 


829 


one  petition,  once  for  all ; that  it  must  cover  any  right  that 
will  be  lost  by  him,  or  any  right  which  will  be  acquired  by 
the  city  by  the  exercise  of  any  power  under  this  act. 

Then  what  is  the  taking  for  which  damages  are  to  be 
assessed?  It  is,  in  this  case,  the  taking  of  water-rights.  In 
the  paper  taking  filed,  it  is  called  the  taking  of  the  water  of 
Sudbury  river.  That,  of  course,  can  only  be  construed  to 
mean  the  taking  of  the  right  to  divert  the  water  of  Sud- 
bury river,  for  it  cannot,  in  the  nature  of  things,  be  the 
actual  taking  of  the  water,  but  it  is,  within  the  terms  of  the 
act,  a taking  of  water-rights,  and  by  that  taking  we  think 
the  City  of  Boston  acquires  a right  which  the  petitioner  in 
this  case  lost.  The  question  for  us  to  determine  is,  what 
damage  does  the  petitioner  suffer  by  reason  of  the  fact  that 
he  has  lost  a right,  and  the  city  has  acquired  it?  Strictly 
speaking,  I suppose  the  difference  in  the  market  value  of 
the  estate  of  the  petitioner  before  the  city  exercised  its 
authority  under  the  act,  and  after  it  exercised  it,  is  the 
measure  of  damages.  Now,  those  damages,  and  that  differ- 
ence in  market  value,  may  depend,  and  must  depend  in 
some  degree,  upon  the  use  which  the  city  will  make  of  its 
right  so  acquired ; and  we  do  not  think  that  it  of  necessity 
follows,  or  is  to  be  assumed,  that  the  city  will  exercise  that 
right  to  its  fullest  extent,  by  taking  at  all  times  all  the 
water  of  Sudbury  river  except  the  million  and  a half  gal- 
lons. It  may  be,  we  think,  assumed,  that  the  city  will  take 
every  drop  which  it  is  for  its  interest  to  take,  and  it  must  be 
so  assumed.  The  city,  therefore,  could  not  be  allowed  to 
come  here,  and  show  that  it  did  not  intend  to  take  all  the 
water  of  the  Sudbury  river,  for  it  could  not  be  heard  to 
assert  that  it  did  not  intend  to  exercise  its  full  right,  inas- 
much as  it  might  change  its  intention  at  any  future  time, 
and,  still  more,  for  the  reason  that  there  is  no  method  of 
ascertaining  what  the  intent  of  a city  may  be. 

W e think  it  is  only  competent  to  show  facts  relating  to  the 
character  of  the  stream  in  question,  and  to  the  use  of  the 
water,  which  may  necessarily  or  probably  affect  the  limit 
and  extent  of  use  by  the  city.  If,  for  instance,  it  could  be 
shown  to  be  physically  impossible  for  the  city  to  take  the 
whole  stream  of  the  Sudbury  river  and  convey  it  to  the  City 
of  Boston,  that  fact  could,  we  think,  be  shown  as  limiting 
the  extent  to  which  the  city  would  exercise  the  right  which 
it  has  acquired  so  to  take  and  convey  the  whole  stream  of 
the  Sudbury.  In  fact,  the  trial  of  this  cause  has  proceeded 
throughout  upon  the  assumption,  on  the  part  of  both  peti- 
tioner and  the  city,  that  at  certain  periods  of  the  year  the 
flow  of  the  Sudbury  river  would  not  be  discontinued  or 


830 


Testimony  of  A.  Fteley. 


reduced  to  the  million  and  a half  gallons  per  day.  And  I 
suppose  no  one  of  the  counsel  who  has  been  heard  before 
me  would  contend  that  that  was  either  a reasonable  expecta- 
tion, or  a theory  upon  which  damages  are  to  be  assessed  by 
us,  that  the  stream  will  be  used  at  all  times,  except  to  the 
extent  of  a million  and  a half  gallons  per  day. 

Mr.  Storey.  What  we  have  said  is,  that  there  will  be 
certain  periods  of  the  year  when  we  conceive  that  the  water 
of  Sudbury  river  will  not  be  necessary  to  make  up  that  por- 
tion of  the  Concord  river  to  which  we  are  entitled. 

Mr.  Richardson.  The  Wamesit  dam  companies  go  upon 
the  proposition  that,  if  there  is  any  more,  perhaps  it  belongs 
to  somebody  else. 

Commissioner  Russell.  I was  in  error,  perhaps,  in 
referring  to  other  cases.  This  evidence  is  only  offered  in 
this  case.  We  think  it  is  competent  to  show,  that,  from 
the  nature  of  things,  the  whole  of  Sudbury  river  will  not 
be  diverted,  although  the  city  has  the  legal  authority 
and  the  legal  power  to  divert  it,  and  has  taken  the  proper 
measures  to  assert  and  vest  in  itself  the  right  so  to  do. 

Mr.  Shattuck.  With  their  reservoirs,  I do  not  know 
that  it  is  not  practicable  to  use  it. 

Commissioner  Russell.  That  is  a question  of  evidence. 

Mr.  Shattuck.  It  only  bears  upon  the  question  of  law. 

Commissioner  Russell.  On  the  other  hand,  we  do  not 
think  it  is  competent  for  the  city  to  show  by  the  testimony 
of  experts  the  degree  of  probability  as  to  the  use  which 
will  be  made  of  the  water,  or  the  degree  of  probability  that 
the  city  will  require  the  whole,  or  more  or  less  of  this  water 
within  a given  period,  but  that  the  testimony  must  be  lim- 
ited strictly  to  the  facts  of  the  case ; and  that  upon  the 
ground  stated  by  Chief- Justice  Bigelow,  I think,  in  the  case 
of  the  Boston  and  Worcester  Railroad  against  the  Old 
Colony  Railroad,  — that  in  relation  to  this  matter,  there  has 
been  no  such  experience  that  any  satisfactory  opinion  can  be 
based  upon  it.  We  do  not  think  it  is  within  the  province  of 
the  testimony  of  an  expert  to  determine  the  probability  that 
the  city  of  Boston  will  apply  the  water  of  Sudbury  river,  to 
a greater  or  less  extent,  for  production  of  power  for  manu- 
facturing purposes,  and  we  think  it  is  not  within  the  prov- 
ince of  an  expert  to  give  his  testimony,  therefore,  as  to  the 
extent  to  which  the  City  of  Boston  may  see  fit  to  use  the 
water  of  Sudbury  river.  We  must  assume  that  they  will 
use  it  to  the  greatest  extent  to  which  it  may  be  for  their 
interest  to  use  it,  inasmuch  as  only  by  that  assumption  can 
we  be  sure  that  compensation  will  be  made  for  the  damage 
which  may  be  suffered  by  the  petitioners. 


Testimony  of  A.  Fteley. 


831 


Mr.  Storey.  I should  like  to  have,  in  the  finding  of  the 
commissioners,  the  question  reported  in  some  shape,  so  that 
it  will  come  before  the  court.  My  clients’  claim  is  that, 
prior  to  the  act  of  the  city,  we  had  a right  to  have  Sudbury 
river  flow  by  our  mill ; that,  by  the  action  of  the  city,  we 
have  been  deprived  of  that  right ; and  that  the  measure  of 
our  damages  is  the  value  of  that  right. 

Commissioner  Russell.  To  all  which  I should  agree 
entirely ; but  the  measure  of  your  damages  by  the  loss  of 
that  right  must  depend  somewhat  on  thq  probability  as  to 
how  that  right  will  be  exercised  ; and  it  need  not  be  assumed 
that  it  will  be  exercised  in  a manner  in  which  it  cannot  pos- 
sibly be  exercised,  nor  that  it  will  be  exercised  in  a manner 
in  which,  in  all  reasonable  probability,  it  never  will  be 
exercised. 

There  is  a decision  in  a matter  somewhat  analagous  to  this, 
to  which  I will  refer  counsel : the  case  of  Dickinson  vs. 
Fitchburg,  13  Gray,  546.  There  the  defendants  sought  to 
limit  the  petitioner’s  claim  for  damages  for  land  taken  for  a 
highway,  by  showing  that  they  had  laid  out  that  portion  of 
his  land  which  they  took  for  a highway  as  a sidewalk,  and 
therefore  his  estate  was  not  injured  by  it.  The  court  held 
that  it  was  not  competent  to  show  that  they  had  laid  out  that 
portion  of  the  highway  as  a sidewalk,  but  that  it  was  com- 
petent for  the  defendants  to  show,  in  reduction  of  damages, 
that  from  the  circumstances  of  the  case,  that  would  be  the 
probable  use  of  that  portion  of  his  land.  It  seems  to  me 
that  that  case  is  very  nearly  analogous  to  that  now  before 
us.  The  town  of  Fitchburg  there  undoubtedly  had  a right 
to  lay  out  a travelled  way  over  the  land  taken  from  the 
petitioner,  in  which  case  his  damages  would  have  been 
greater  than  if  they  had  laid  it  out  as  a sidewalk.  It  was 
held  that  the  respondents  had  a right  to  show  the  use  that 
would  probably  be  made  of  that  piece  of  his  land  taken. 

Mr.  Storey.  In  other  words,  you  put  it  on  the  ground 
that  (applying  it  to  a city  case)  where  a city  has  taken  a 
strip  of  land  to  be  used  as  a street,  the  measure  of  damages 
is  not  to  be  ascertained  by  taking  the  same  rule  as  if  that 
strip  were  taken  to  build  a brick  wall  on? 

Commissioner  Russell.  Exactly.  It  is  the  purpose  for 
which  it  is  taken,  and  the  use  and  the  kind  of  use  to  which 
it  is  to  be  applied.  I think  the  question  is  admissible  as  to 
any  question  of  fact,  not  as  to  any  matter  of  opinion. 


832 


Testimony  of  A.  Fteley. 


A.  Fteley,  continued . 

Q.  (Bv  Mr.  Butler.)  Have  you  in  the  course  of  your  employ- 
ment by  the  city  examined  and  understood  the  method  of  measur- 
ing the  water  taken  from  Lake  Cochituate  by  the  city  ? Do  you 
know  what  the  means  of  measuring  are,  and  the  means  by  which 
they  do  the  measuring? 

A.  No,  sir. 

Q.  You  never  have  seen  it? 

A.  No,  sir. 

Q.  You  know  nothing  as  to  how  they  measure  the  water  that 
comes  from  Lake  Cochituate  to  the  city? 

A.  I know  that  there  are  certain  measurements  made,  which  I 
am  not  acquainted  with.  I have  heard  it  said,  I recollect,  that  the 
water  was  sometimes  measured  by  the  fall  in  the  siphon  across 
Charles  river.  That  is  the  only  thing  I can  recollect. 

Q.  Do  you  know  anything  as  to  the  quantity  taken  by  the 
city? 

A.  I know  from  the  report  published  by  the  Water  Board. 

Q.  No  other  way? 

A.  No  other  way,  sir. 

Q.  Do  you  know  anything  of  the  amount  required  by  the  city 
to  supply  its  present  inhabitants? 

Mr.  Shattuck.  That  is  not  competent,  as  I understand  it. 

Mr.  Butler.  Perhaps  we  can  save  all  question.  I only  ask 
him  whether  he  knows.  If  he  don’t  know,  that  ends  it. 

Mr.  Shattuck.  I don’t  know  that  you  can  ask  him  if  he  knows, 
if  the  evidence  is  not  competent. 

Mr.  Butler.  That  is  a fact,  — to  show  how  much  the  city  now 
requires  — 

Mr.  SHATTUCk.  For  mechanical  and  domestic  purposes  — 

Mr.  Butler.  Yes;  how  much  it  takes  — 

Commissioner  Russell.  “How  much  it  takes”  is  another  ques- 
tion. The  other  question  is  ambiguous. 

Mr.  Butler.  By  “requires,”  I mean  how  much  is  necessary 
for  the  supply  of  the  city  — 

Commissioner  Russell.  That  is  capable  of  two  different  con- 
structions. Do  you  wish  to  know  whether  he  knows  how  much 
the  city  now  uses  — 

Mr.  Butler.  Yes,  sir. 

Q.  Do  you  know  how  much  the  city  now  uses? 

A.  Yes,  sir;  approximately. 

Q.  (By  Mr.  Shattuck.)  How  do  you  know  it? 

A.  I know  it  from  verbal  information,  and  also  from  reading 
the  reports  published  by  the  city ; not  otherwise. 

Q.  (By  Mr.  Butler.)  At  present,  all  that  is  taken  from  Sud- 
bury river  goes  into  Lake  Cochituate,  don’t  it? 

A.  To-day,  yes,  sir. 

Q.  And  has  for  a year  past? 

A.  There  have  been  times  when  the  Sudbury  river  was  not 
turned  on  the  lake. 


Testimony  of  A.  Fteley. 


833 


Q.  I mean  all  that  is  diverted  ? 

A.  Yes,  sir  ; all  that  is  diverted. 

Q.  (By  Commissioner  Russell.)  That  is,  ever  since  it  was 
diverted  ?. 

A.  Yes,  sir. 

Q.  (B}r  Mr.  Butler.)  So  that,  if  we  can  get  at  what  the  flow 
of  Sudbury  river  has  been  since  the  diversion,  we  can  get  at  how 
much  has  been  used  b3r  the  city  from  both  Sudbury  river  and  Lake 
Cochituate  ? 

A.  Yes,  sir  ; I guess  so. 

Q.  (By  Mr.  Shattuck.)  Have  you  ever  examined  to  see  how 
the  water  which  ran  in  the  Sudbury  river  during  the  ten  da}rs 
after  the  rain  of  the  last  of  July,  this  year,  compared  with  the 
whole  of  the  water  that  ran  in  the  Concord  river  during  the  same 
period? 

A.  No,  sir  ; I never  made  a comparison. 

Q.  There  was  rain  on  the  31st  of  July,  and  the  Concord  and 
Sudbury  rivers  were  more  or  less  affected,  we  will  say,  during  the 
next  fortnight,  until  both  of  them  got  back  to  the  flow  of  the  time 
previous.  I would  like  to  ask  you  if  that  is  not  correct? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  During  the  time  you  have  been  measur- 
ing Sudbury  river,  have  there  been  times  when  it  was  impossible 
for  you  to  control  the  whole  of  the  river  — when  there  was  a 
quantity  of  water  ran  to  waste? 

Mr.  Shattuck.  Control  with  what  machinery?  That  little 
wooden  dam  they  have  there,  or  what? 

Mr.  Butler.  With  that  dam. 

Witness.  There  were  such  times.  There  have  been  times 
when  it  would  be  impossible  for  the  city  to  divert  the  water. 

Q.  Do  you  know  the  number  of  acres  of  flowage  that  the  city 
proposes  to  flow  by  their  reservoirs? 

Mr.  Shattuck.  , I suppos6  it  is  not  competent  to  show  the 
intent  of  the  city. 

Mr.  Butler.  That  their  reservoirs  are  calculated  and  made  to 
flow? 

A.  The  three  reservoirs  that  the  city  now  proposes  to  build  will 
cover  600  acres. 

Mr.  Shattuck.  That  is  not  competent,  what  the  city  proposes 
to  do. 

Commissioner  Russell.  I don’t  know  whether  you  have  put  in 
the  plans  for  those  reservoirs  or  note.  Were  they  part  of  the  view? 

Mr.  Butler.  They  have  made  their  levels  ; they  have  staked- 
out  their  flowage  area,  and  they  have  done  all  they  can  until  they 
build  the  dam.  If  they  had  built  the  dam,  we  should  have  a right 
to  put  in  the  fact. 

Commissioner  Russell.  I think  the  mode  in  which  the  city 
propose  to  construct  their  works  is  admissible,  although  of  course 
it  is  not  admissible  to  show  that  they  do  not  propose  to  construct 
other  works  which  might  further  exhaust  the  river  than  those  which 
they  now  propose  to  construct. 

Q.  (By  Mr.  Shattuck.)  Have  the}^  begun  to  build  any  reser- 
voirs ? 


834 


Testimony  of  A.  Fteley. 


A.  They  have  begun  to  build  the  dams  behind  which  the  water 
will  be  backed. 

Q.  (By  Mr.  Butler.)  To  flood  those  600  acres,  to  what  aver- 
age depth,  can  you  tell  me? 

A.  The  maximum  depth  for  the  lower  reservoir  will  be  some 
14  feet.  The  next  one  will  be  19  feet,  and  the  third  one  will  be 
about  22  feet. 

Q.  Can  you  give  us  the  capacity  of  those  reservoirs? 

A.  Yes,  sir;  approximately.  The  lower  reservoir,  in  the  order 
I have  named  them,  is  to  contain  a little  over  200,000,000  gallons  ; 
the  next  one  in  order  will  contain  a little  less  than  one-half 
billion  gallons  ; and  the  third  one  will  contain  1,100,000,000. 

Q.  Then  the  whole  will  be  about  one  billion  eight  hundred 
million? 

A.  Yes,  sir  ; very  nearly. 

Q.  Will  the  water  flow  from  the  upper  to  the  second,  and  from 
that  to  the  last  one? 

A.  Yes,  sir  ; two  of  them  are  on  two  different  branches  of  the 
river,  but  they  both  flow  into  the  third  one. 

Q.  What  is  the  maximum  flow,  if  you  know,  of  the  Sudbury 
river? 

A.  The  maximum  flow  that  I have  seen,  is  3,200  cubic  feet  per 
second.  The  table  put  in  evidence  shows  that  amount. 


Cross-examination . 4 

Q.  (B}t  Mr.  Shattuck.)  How  long  did  that  flow  of  3,200  feet 
per  second  continue? 

A.  This  is  the  average,  for  24  hours,  of  the  greatest  flow. 

Q.  3,200  cubic  feet,  was  it? 

A.  Yes,  sir. 

Q.  During  the  14  days  after  the  rainfall  of  July  31,  the  Con- 
cord river  appeared  to  be  affected  by  that  rainfall,  did  it  not? 

A.  I have  seen  it  from  the  profiles  that  wrere  shown  me  in 
court. 

Q.  During  that  period,  according  to  your  tables,  the  aggregate 
flow  of  the  Sudbury  was  how  much  from  the  31st  of  July  to  the 
13th  of  August,  inclusive? 

A.  The  average  was  1,476  cubic  feet  in  the  Sudbury,  and  7,084 
cubic  feet  in  the  Concord. 

Commissioner  Francis.  That  does  not  really  represent  it. 

Mr.  Shattuck.  This  shows  the  proportion  of  the  flow  of  the 
two  rivers,  that  is  all ; it  is  simply  proportional. 

Mr.  Butler.  It  does  not  show  the  proportion. 

Mr.  Shattuck.  Why  not? 

Mr.  Butller.  Because  one  portion  of  the  14  da\^s,  when  the 
Concord  flowed  a great  deal  less,  the  Sudbury  flowed  a great  deal 
more. 

Mr.  Shattuck.  I put  it  in  for  what  it  is  worth ; but  it  does 
show  accurately  the  proportion  of  the  average  flow. 

Q.  Now,  it  turns  out  that  during  those  14  da}’s  the  flow  of  the 
Sudbury  was  a trifle  more  than  one-fifth  the  flow  of  the  Concord? 


Testimony  of  A.  Fteley. 


835 


A.  Yes,  sir  ; so  I find  it. 

Q.  Now,  I want  to  know  if  you  can  tell,  taking  your  knowledge 
of  the  Sudbury  meadows,  and  the  extent  of  them  for  twenty  miles 
and  more,  how  much  of  the  Concord  river  flow  has  come  from  the 
Sudbury  river  during  that  period? 

A.  1 don’t  see  that  I can  answer  that  question  sir. 

Q.  Can  you  tell  us,  from  any  knowledge  that  observation  or 
experiment  has  conferred  on  you,  that  the  Sudbury  did  not  con- 
tribute its  fair  proportion  to  tire  flow  of  the  Concord  during  that 
whole  period ; that  is  21  per  cent,  about? 

A.  I should  say  that  there  is  no  reason  to  suppose  that  it  did 
not  contribute  its  fair  proportion. 

Q.  Whether,  from  any  observations  you  have  ever  made,  or  any 
experiments  that  have  come  to  your  knowledge,  you  can  say  that 
the  Sudbury  did  not  contribute  substantially  that  proportion  of  all 
the  water  that  flowed  through  the  Concord  river? 

A.  No,  sir,  I can’t  say  so. 

Q.  Is  not  the  recognized  test  of  the  value  of  the  contributions 
of  different  parts  of  the  water-shed  of  a river  the  measurements 
of  the  water-shed  ? 

A.  It  is  the  general  practice. 

Q.  Do  you  know  of  any  better  test  than  that? 

A.  No,  sir.  Excuse  me  — there  is  a better  test,  if  you  could 
get  gaugings  for  a great  many  years. 

Q.  But,  taking  gaugings  for  any  one  year  or  for  less  than  three 
months  in  one  year,  would  that,  in  your  judgement,  to  any  extent 
control  the  argument  to  be  derived  from  the  water-shed? 

A.  Experiments  on  the  flowage  during  a certain  number  of 
months  would  give  a pretty  good  indication  of  what  the  flow  was 
at  the  moment  the  flow  was  taken.  I should  say  that  experiments 
during  a very  wet  season  or  during  a very  dry  season  might  give 
an  indication  of  the  extreme  flows  of  the  minimum  and  maximum. 

Q.  That  is  clear  ; but  would  the  proportions  contributed  by  the 
different  parts  of  a water-shed,  either  in  a wet  or  dry  season,  as 
ascertained  by  measurements  during  three  months,  be  any  sub- 
stantial indication  of  the  permanent  flow? 

A.  It  would  be  an  indication,'  but  not  so  as  to  weaken  the 
general  rule. 

Q.  (By  Mr.  Richardson.)  Would  these  few  measurements  for 
a short  period  of  time  be  of  any  substantial  value  in  determining 
the  flow  over  a period  of  a great  many  years,  in  comparison  with 
the  rainfalls  and  water-sheds. 

A.  I should  say  that  both  methods,  measuring  the  water-shed 
on  one  side  and  gauging  on  the  other,  are  two  different  things 
altogether.  You  can’t  say  that  one  compares  entirely  with  the 
other.  Measurements  of  the  water-shed  will  be  taken,  usually,  by 
engineers  ; but  I should  say  that  if  there  is  a dry  season,  saying 
that  the  flow  has  been  so  much,  for  instance,  lower  than  at  the 
other  periods  of  the  year,  it  is  obvious  that,  if  the  rainfall,  which 
is  least  in  summer  time,  does  not  furnish  as  much  flow,  it  is  a 
small  proportion  of  the  total  yield  of  the  water-shed,  and  con- 


836 


Testimony  of  A.  Fteley. 


sequentl}7  the  difference  that  there  is  between  such  gaugings  and 
calculations  of  the  whole  water-shed  would  not  be  as  great  as  may 
be  supposed. 

Q.  Well,  m37  question  was  this  : would  those  measurements  for 
this  short  period  substantially  control  the  conclusion  which  meas- 
urements of  the  water-shed  and  rainfall  would  lead  you  to  for  a 
period  of  thirty  or  forty  }7ears,  or  control  the  general  rule,  sub- 
stantial^7 ? 

A.  Gaugings  for  one  year  could  not  control. 

Q.  Those  you  have  made  here? 

A.  I have  made  these  for  three  }7ears. 

Q.  Well,  would  they  substantially  control  the  conclusions  which 
measurements  of  the  rainfalls  and  water-sheds  would  lead  you  to 
for  a period  of  fort}7  or  fifty  years  ? 

A.  It  would  not  change  the  calculations  that  an  engineer  would 
make  generall}7  of  the  wTater-shed,  but  it  would  be  a very  strong 
indication  of  what  may  take  place  in  a similar  season. 

Q.  (By  Mr.  Storey.)  I understand,  that,  in  the  natural  state 
of  things,  the  waters  of  Farm  pond  would  flow  into  the  Sudbury 
river,  would  they  not? 

A.  Yes,  sir. 

Q.  Now,  I ask  you  whether,  in  making  your  measurements  of 
the  flow  of  Sudbury  river,  you  have  measured  any  water  flowing 
from  Farm  pond  into  the  Sudbury  river? 

A.  Do  you  mean  to  include  the  flow  from  the  particular  water- 
shed of  Farm  pond? 

Q.  Let  me  state  nry  question  exactly.  I understand,  that,  in 
its  natural  state,  the  water  from  the  water-shed  of  Farm  pond 
would  flow  into  Sudbury  river? 

A.  Yes,  sir. 

Q.  You  have  given  us  here  some  measurements  of  Sudbury 
river  ? 

A.  Yes,  sir. 

Q.  Do  those  measurements  include  any  of  the  water  received 
by  the  Sudbury  river  from  Farm  pond  or  its  water-shed? 

A.  Yes,  sir. 

Q.  Where  are  the  measurements  made? 

A.  They  are  made  in  that  wa}7,  because  we  cannot  very  well 
separate  them.  You  probably  know  that  Farm  pond  is  on  the  way 
from  the  city  ditch  to  Sudbury  river  ; consequently,  in  measuring 
the  water  from  the  ditch  furnished  by  the  city,  you  cannot  do 
otherwise  than  take  the  water  from  Farm  pond. 

Q.  You  measured  the  water  in  Sudbury  river  at  the  dam? 

A.  Yes,  sir. 

Q.  That  gives  you  what  flows  in  Sudbury  river,  independent  of 
Farm  pond  ? 

A.  Sometimes  it  ma}7  be  dependent,  and  sometimes  independent. 
There  is  a dam  that  separates  Farm  pond  from  Sudbur}7  river.  If 
that  dam  is  closed  when  we  make  the  measurements  at  Sudbury 
river,  Farm  pond  is  not  included  ; on  the  contrary,  if  that  dam  is 
open,  then  it  is  included.  What  I mean  to  sa}7  is  this:  as  there  is 
no  outlet  from  Farm  pond  but  the  Sudbury  river  and  the  city 


Testimony  of  A.  Fteley. 


837 


ditch,  as  I have  gauged  both,  whether  the  dam  is  open  or  shut,  I 
have  on  a certain  day  taken  the  flow  of  Farm  pond. 

Q.  As  I understand  the  matter,  if  the  flow  of  water  in  Sudbury 
river  is  at  a certain  height,  the  water  will  flow  into  Farm  pond, 
and  when  the  water  is  low  in  Sudbury  river,  it  will  flow  out 
again  ? 

A.  Yes,  sir. 

Q.  Then  the  effect  of  your  dam  has  been  to  raise  Sudburj”  river 
sometimes  so  that  it  would  include  the  flow  into  Farm  pond  from 
that  ditch  ? 

A.  Yes,  sir. 

Q.  When  you  are  measuring  the  water  at  the  dam,  you  are 
measuring  it  below  the  ditch  that  goes  to  Farm  pond  ? 

A.  Yes,  sir. 

Q.  And  you  are  measuring  it  when  the  tendency  of  the  water  is 
to  flow  from  Sudbury  river  into  Farm  pond.? 

A.  Either  way  ; sometimes  the  flow  might  be  reversed. 

Q.  Now,  I want  to  ask  you  whether  or  not  in  your  curve  there 
are  measurements  made  at  the  dam  when  the  water  was  flowing 
into  Farm  pond  ? 

A.  I have  included  in  those  measurements  all  the  cases  you  can 
imagine.  As  I explained  to  you  when  I explained  the  gauges 
taken,  there  are  various  apparatuses.  One  is  at  the  dam  itself; 
another  one  is  by  obserying  the  height  of  Farm  pond ; and  another 
apparatus  is  to  measure  the  water  flowing  into  the  ditch.  Conse- 
quently, I will  take  the  instance  that  you  suppose  ; that  is,  I am 
measuring  at  the  dam,  and  during  that  time  the  water  is  going 
into  Farm  pond.  An  apparatus  at  the  dam,  operated  by  that  float, 
will  give  me  by  calculation  the  flow  at  the  dam.  Then,  according 
to  the  quantity  that  goes  into  Farm  pond  from  Sudbury  river, 
Farm  pond  will  either  rise  or  fall,  and  that  quantity  will  be  con- 
trolled by  the  gauge  giving  me  the  level  of  Farm  pond,  and  I 
will  know  the  quantity  from  the  surface  area  of  Farm  pond. 
Then  if,  beside  that,  I measure  the  quantity  that  flows  into  the 
city  ditch  in  twenty -four  hours,  I will  know  what  has  passed  at  the 
dam,  what  has  passed  over  the  dam,  what  has  been  lost  or  gained 
through  Farm  pond,  and  what  has  been  consumed  by  the  city 
through  the  ditch. 

Q.  You  will  have  the  measurement  of  the  water  that  has  gone 
through  the  whole,  and  what  has  passed  into  the  ditch  through 
Farm  pond? 

A.  Yes,  sir.  I necessarily  have  the  flow  from  the  water-shed 
of  Farm  pond  in  my  gauges  ; I cannot  prevent  it. 

Q.  You  measure  it  when  it  flows  into  it? 

A.  I measure  it  in  all  manners.  I will  give  you  an  instance. 
Suppose  the  city  ditch  is  stopped,  and  there  is  no  flow  going  to 
Cochituate  Lake.  Suppose  Farm  pond  entirely  isolated  ; by  my 
gauge  at  Sudbury  river,  I will  know  that  the  flow  of  Sudbury  river 
is  so  much.  Now,  on  that  particular  day  I will  have  the  flow  of 
Sudbury  river  exactly ; and  if  the  next  day  I have  to  reopen  the 
communication  of  Farm  pond  with  Sudbury  river,  and  Farm  pond 
with  the  city  ditch,  then  I will  be  obliged  to  take  into  account  the 


838 


Testimony  of  A.  Fteley. 


water  that  would  have  accummulated  in  Farm  pond  during  the 
day  it  was  separated  from  the  rest. 

Q.  In  other  words,  you  add  to  the  water  you  found  on  a former 
day,  the  water  that  would  have  flowed  into  the  ditch  from  Farm 
pond  in  the  natural  way  ? 

A.  Yes,  sir. 

Re-direct. 

Q.  (By  Mr.  Child.)  The  indications  from  the  measurements 
which  you  had  made  on  the  Sudbury  river,  and  from  the  measure- 
ments which  you  have  seen  here,  as  testified  to,  upon  the  Concord 
river,  as  taken  during  the  last  }rear,  will  they  indicate  precisely 
the  proportions  between  the  two  rivers,  in  a similar  season,  at  any 
time? 

A.  I believe  so,  sir. 

Q.  They  will  show  it  exactly  and  completely,  will  they  not? 

A.  I believe  so. 

Q.  In  a season  similar  to  the  season  of  the  last  year,  from  your 
knowledge  of  the  flow  of  the  Concord  river,  and  from  your  meas- 
urements of  the  flow  of  the  Sudbury  river,  will  the  Sudbury  river 
produce  more  than  one-tenth  of  the  total  flow? 

A.  I believe  that  the  indications  of  those  simultaneous  gaugings 
would  be,  that,  in  a similar  year,  the  proportion  would  be  about  the 
same.  As  to  the  proportion  being  one-ninth  or  one-tenth,  I don’t 
know  exactly  what  it  is.  It  can  be  taken  from  the  tables  by  com- 
putation. 

Q.  I wish  3tou  would  calculate  it  and  put  it  in.  Is  not  the  pro- 
portion between  these  two  rivers,  as  appear  from  the  gaugings,  a 
criterion  by  which  to  judge  those  rivers  in  ordinarily  dry  seasons? 

A.  I should  say  it  is  a very  strong  indication  that  the  general 
comparison  of  the  water  is  so. 

Q.  (By  Mr.  Butler.)  Do  you  know  how  much  water  was 
flowing  by  your  dam,  say  on  the  first  day  of  August ; can  you  tell 
me  that? 

A.  I find  that  the  total  flow  of  the  Sudbury  river  was  395  cubic 
feet.  I have  nothing  here  to  tell  me  exactly  what  was  going  into 
the  ditch,  but  I should  assume  that  probably  at  that  time  some- 
thing like  ten  or  twelve  million  gallons  would  go  into  the  city 
ditch,  and  there  would  be,  consequently,  380  cubic  feet  left. 

Commissioner  Russell.  Probably  about  380  cubic  feet  going 
over  the  dam? 

A.  Yes,  sir  ; that  is  a near  assumption,  because  I cannot  recol- 
lect exactly  how  much  was  going  into  the  ditch  at  the  same  time. 

Q.  How  much  was  going  by  on  the  Concord  river  when  that 
point  of  highest  flow  was  reached? 

A.  On  August  3d,  by  this  profile,  there  was  735  cubic  feet  per 
second. 


Re-cross  examination. 

Q.  (By  Mr.  Storey.)  I understand  }tou  to  sajr  that  in  the  same 
season  or  a similar  season,  a comparison  of  the  Sudbury  and  the 
Concord  would  yield  the  same  results? 


Testimony  of  A.  Fteley. 


839 


A.  I said  that  it  would  be  a strong  indication. 

Q.  Now,  let  me  ask  you  what  you  would  call  a similar  season? 

A.  A similar  season  would  be  a season  when  the  flow  would 
be  generally  low,  contained  between  certain  limits,  and  when  there 
would  be  one  large  rainfall  or  two,  maybe. 

Q.  Wouldn’t  it  make  a difference  whether  that  large  rainfall 
was  on  the  Sudbury  or  whether  it  was  down  at  Concord  or  at 
Lowell?  Showers  in  summer  are  generally  local.  A large  shower 
might  be  felt  on  the  water-shed  of  Lake  Cochituate  which  would 
not  be  felt  on  the  waters  of  the  Concord.  Now,  do  you  mean, 
given  the  same  total  rainfall,  distributed  in  the  same  way,  on  the 
same  area,  the  result  would  be  the  same  ; or  do  you  mean  that, 
taking  the  rainfall  and  distributing  it  in  a different  way,  the  result 
would  be  the  same  ? 

A.  No,  sir ; I take  it  in  a more  general  way.  I mean  to  say 
that  if  we  take  a season  during  which  the  rainfall  has  been  about 
the  same,  and  when  the  flow  of  Sudbury  river  has  been  about  as  it 
is  now,  the  comparison  of  the  two  rivers,  I believe,  would  be  very 
near  the  same.  It  would  be,  as  1 said  before,  a strong  indication 
that  the  result  would  be  the  same. 

Q.  That  is  to  say,  if  the  flow  of  the  Sudbury  and  the  Concord 
was  the  same  as  it  was  this  summer,  the  proportion  would  be  the 
same  as  it  is  here? 

A.  Let  me  explain  a little  more  fully.  I will  give  you  an  in- 
stance. Take  a summer  which  is  very  wet,  and  it  may  be  that, 
the  ground  being  soaked,  the  influence  of  any  rains  we  have  will 
show  that  the  proportion  furnished  by  the  Sudbury  at  the  place 
where  these  gaugings  were  taken  would  be  greater.  In  this  case 
we  had  a dry  season.  We  see  rains  of  some  magnitude  that  do 
not  produce  any  effect,  or  very  little  effect,  on  the  Sudbury.  We 
see  that,  in  this  case,  a very  large  rain  at  a time  when  we  had 
hardly  ten  cubic  feet  in  the  Sudbury,  did  not  double  it,  and  we  see 
that  we  had  a second  rain,  and  one,  too,  of  very  great  volume.  I 
say,  taking  a season  when  rain  would  be  equally  scarce  and  about 
equally  distributed  — 

Q.  Falling  in  just  the  same  way  it  does  here? 

A.  About  equally  distributed,  the  indication  would  be  strongly 
that  the  effect  would  be  about  the  same.  A different  distribution 
of  rainfall  might  make  a change. 

Q.  (By  Mr.  Shattuck.)  Have  you  ever  learned  by  observa- 
tion that  it  took  nearly  a month  for  the  water  that  fell  at  a par- 
ticular time  on  Concord  river  to  discharge  itself  over  Talbot’s 
dam  ? 

A.  No,  sir. 

Q.  Suppose  it  did,  what  time  should  you  allow  for  the  water 
from  Sudbury  river  to  reach  the  Wamesit  dam? 

A.  The  only  thing  I can  judge  by  is  the  distance. 

Q.  Do  you  know  anything  about  the  peculiar  nature  of  the  Sud- 
bury meadows? 

A.  I understand  that  there  is  a very  slight  fall  from  Billerica  to 
Way  land. 

Q.  Of  course,  if  you  knew  that  it  did  take  that  length  of  time 


840 


Testimony  of  Clemens  Herschel. 


for  the  water  to  discharge  from  Concord  river  that  would  affect 
your  judgment  somewhat  as  to  the  flow  of  the  Sudbury? 

A.  If  it  took  one  month,  I would  merely  say  that  the  effect  of 
the  Sudbury  would  be  felt  later ; I can’t  say  how  much. 

Q.  And  a large  rainfall  on  the  Sudbury  would  be  distributed 
over  a long  period,  would  it  not? 

A.  Yes,  sir. 


Clemens  Herschel,  recalled. 

I would  like  to  make  an  explanation  in  regard  to  my  use  of  the 
word  “ waste.”  At  the  time  I was  gauging  Concord  river  at 
Massic  dam,  I had  an  observer  up  at  North  Billerica,  and  when 
water  wastes  over  that  dam,  that  is  what  I should  call  waste.  That 
is  what  I mean  by  the  use  of  the  word  fc‘  waste  ” in  this  case.  I 
have  the  dates  when  the  water  wasted  up  there.  The  observations 
up  there  were  taken  at  noon  time,  when  the  mill  shut  down  at 
noon,  in  the  evening,  and  at  a quarter  past  six  in  the  morning,  be- 
fore the  mill  started.  The  noon-time  observation  is  not  of  any 
controlling  value  ; of  course  it  depends  upon  what  the  mills  happen 
to  draw  that  day.  I have  not  plotted  those,  but  I have  plotted  the 
observations  taken  at  nine  o’clock  in  the  evening,  and  at  6.15 
o’clock  in  the  morning,  every  day  except  Sunday,  and  Sunday 
they  were  taken  at  9 o’clock  in  the  morning.  General^,  with  only 
two  or  three  exceptions,  when  the  water  is  level  with  the  top  of 
the  North  Billerica  dam,  if  it  wasted  at  the  North  Billerica  dam  in 
the  morning  at  6.15,  it  also  wasted  there  at  9 o’clock  the  night 
previous.  As  I say,  there  are  only  two  or  three  exceptions  to 
that.  The  days  when  it  did  not  waste  at  the  dam  at  6 o’clock  in 
the  morning  were  July  9,  and  18  to  22,  both  inclusive ; August  28 
to  September  1,  both  inclusive;  September  5 to  17,  both  inclu- 
sive. That  makes,  if  I have  counted  them  up  right,  twenty-eight 
days  out  of  the  whole  number  of  days  from  July  6 to  September 
24,  inclusive. 

Q.  (By  Mr.  Childs.)  How  many  days? 

A.  Eighty  days. 

Q.  Then  there  are  twentj^-eight  days  out  of  eighty  that  the 
water  did  not  waste  over  the  dam  at  Billerica  at  any  time  in  the 
night? 

A.  Yes,  sir.  At  6.15  in  the  morning  before  the  mill  started. 
Every  other  night  it  wasted  over  the  dam. 

Mr.  Butler.  I now  offer  the  conveyance  of  the  Wamesit 
Power  Company  to  the  city. 

Mr.  Shattuck.  For  what  purpose? 

Mr.  Butler.  For  the  purpose  of  showing  that  they  were, 
at  the  time  of  the  filing  of  some,  at  least,  of  these  petitions, 
and  I believe  all,  — joint  owners  of  the  dam  at  Wamesit  with 
the  other  water-takers. 

Mr.  Shattuck.  If  you  will  put  in  the  whole  transaction, 
to  show  the  exact  nature  of  their  title,  I will  not  object. 


Testimony  of  Clemens  Herschel. 


841 


Mr.  Butler.  I am  now  offering  a certain  conveyance, 
sir. 

Mr.  Shattuck.  I might  suggest  a diminution  of  the 
record.  Not  that  technically,  but  substantially. 

Mr.  Butler.  I suppose  you  do  not  want  me  to  call  the 
subscribing  witnesses  ? 

Mr.  Shattuck.  No,  sir ; but  I want  the  whole  transac- 
tion put  in.  I object  to  the  introduction  of  the  deed,  unless 
the  whole  transaction  in  relation  to  that  water  goes  in. 

Mr.  Butler.  I offer  the  deed  of  the  W amesit  Power  Com- 
pany to  the  City  of  Boston  of  a part  of  the  water-power  of 
the  Wamesit  dam,  dated  the  first  day  of  December,  1875. 

Mr.  Richardson.  That  was  after  the  taking  and  the  filing 
of  the  petitions. 

Mr.  Butler.  I do  not  know  that  it  was  not. 

Mr.  Shattuck.  There  is  a contemporaneous  agreement 
to  convey  it  back  for  nothing,  which  can  be  enforced  at  any 
moment.  That  is  quite  material. 

Commissioner  Russell.  I fail  to  see  how  the  deed  is 
competent. 

Mr.  Storey.  In  my  particular  case,  the  city  were  served 
with  a summons  on  the  16th  of  July,  1875.  This  deed  is 
dated  December  1st,  1875. 

Mr.  Richardson.  All  the  petitions  were  filed  before  that 
time. 

Mr.  Butler.  I will  read  a portion  of  the  deed. 

“ Said  Wamesit  Power  Company,  in  consideration  of  fifty-five 
thousand  dollars,  and  other  sufficient  considerations,  the  receipt 
whereof  is  hereby  acknowledged,  said  company  thereunto  moving, 
does  hereby  release  the  City  of  Boston  of,  and  from,  every  and  all 
damages,  compensation  and  claim  of  damages  of  whatsoever  name 
or  nature,  arising  out  of,  or  because  of,  the  taking  of  the  water  of 
Sudbury  river,  a branch  of  the  Concord  river,  under  and  by  virtue 
of  the  provisions  of  said  act,  or  however  otherwise  taken  by  said 
city  up  to  the  date  hereof. 

And  in  addition  said  Wamesit  Power  Company,  for  the  consid- 
eration aforesaid,  does  convey,  transfer  and  set  over  to  said  City  of 
Boston,  the  amount  of  water  which  may  flow  in  their  said  canal 
equal  to  the  aliquot  part  of  sixty-six  (66)  cubic  feet  of  water  per 
second  whenever  the  water  is  below  the  level  of  the  permanent 
stone  dam  of  said  companjq  said  aliquot  part  being  that  which  will 
flow  in  and  through  said  canal  when  the  water  is  below  the  top  of 
said  permanent  stone  dam,  being  sixty-six  two  hundred  and  eighty- 
eighth  parts  (^6g%)  of  said  water  then  and  there  flowing,  to  be  drawn 
by  the  City  of  Boston  or  their  assigns,  as  each  may  choose  to  do, 
through  any  of  the  penstocks  or  flumes  of  airy  of  the  proprietors  of 
water  who  have  now  a right  to  draw  the  same  from  said  canal, 


842 


Testimony  of  Clemens  Herschel. 


other  than  said  Wamesit  Power  Company,  through  which  said  city 
or  its  assigns  may  elect  to  have  said  water  drawn,  whether  through 
one  or  more  of  said  flumes  or  penstocks.  This  right  to  draw  water 
by  said  city  or  its  assigns  to  be  exercised  only  for  eleven  and  one- 
fourth  (11£)  hours  per  da}7  for  six  days  (6)  days  in  each  week  for 
ever,  but  not  more  or  otherwise.” 

Commissioner  Russell.  But  the  petitioners  stand  upon 
their  own  right  as  to  that  water-power ; and  how  does  it 
make  any  difference  whether  the  city  is  the  owner  of  the 
remaining  right,  or  the  Wamesit  Power  Company?  Each 
has  an  equal  right  to  restrict  the  petitioners  to  the  use  of  the 
water  that  belongs  to  them,  and  an  equal  interest  it  doing  it. 

Mr.  Butler.  Suppose  I show  that,  they  being  the  owner 
of  that  dam,  is  more  than,  by  any  computation,  Sudbury 
river  can  furnish ; that  is,  it  is  more  than  one-fifth,  or  22 
per  cent. , or  any  other  per  cent,  that  can  be  calculated ; and 
that  I follow  it  by  testimony  to  show  that  the  city  allowed 
these  water-takers  to  draw  that  amount  of  water  through 
their  flumes  ; and  that  they,  therefore,  have  suffered  no  dam- 
age, and  have  had  yet  no  water  of  theirs  taken  from  them? 

Commissioner  Russell.  We  do  not  think  it  would  be 
competent  to  show  that.  We  do  not  consider  that  competent, 
after  the  petition  is  filed,  and  the  rights  of  the  petitioners 
fixed. 

Mr.  Butler.  Very  well.  We  offer  it,  and  you  rule 
upon  it. 

Mr.  Richardson.  It  is  no  more  than  saying  that  they 
have  got  money  enough  to  pay  by  money.  They  cannot 
settle  by  water ; they  can  settle  by  money.  Any  way,  I do 
not  think  it  varies  the  rule  or  the  petitioners’  rights. 

Mr.  Butler.  Their  rights  were  fixed  long  before  they 
filed  the  petition,  and  now  they  are  carrying  on  their  petition 
against  the  joint  proprietors,  who  have  as  much  interest  in 
the  preservation  of  the  water  as  they  have.  I don’t  think 
they  can  get  along  that  way. 

Commissioner  Russell.  That  goes  back  to  your  original 
proposition,  that  they  have  joined  with  the  Wamesit  Power 
Company.  It  is  hardly  possible  to  join  the  city  at  that  stage 
of  the  proceedings,  as  they  were  then  not  owners. 

Mr.  Butler.  They  can  join  at  any  stage. 

Commissioner  Russell.  Not  in  both  capacities,  of  peti- 
tioners and  respondents. 

Mr.  Butler.  It  may  raise  a difficulty,  which  I do  not 
feel  at  all  troubled  about  myself.  But  if  you  rule  it  out, 
there  it  is  ; we  offer  it. 


Testimony  of  Clemens  Herschel. 


843 


Commissioner  Russell.  I cannot  see  the  competency  of 
it,  even  if  followed  by  the  testimony  proposed. 

Mr.  Butler.  I now  offer,  oh  behalf  of  the  city,  in  miti- 
gation of  damages,  or  compensation  for  any  water  taken,  an 
amount  of  water  in  the  river,  to  each  of  these  complainants, 
to  flow  through  the  raceways  and  penstocks  of  each  of  these 
complainants,  equal  to  the  entire  flow  of  the  Sudbury  river, 
to  which  they  are  entitled  under  their  several  deeds  put  in 
the  case.  That  is  to  say,  assuming  that  the  flow  of  the  Sud- 
bury is  22  per  celit.  of  the  Waters  of  the  Concord  (which  is 
the  highest  amount  claimed),  we  offer  to  the  Sterling  mill, 
who  have  thirty-six  cubic  feet  per  second,  an  amount  of  water 
equal  to  22  per  cent,  of  the  thirty-six  cubic  feet,  and  to  con- 
vey it,  and  file  a deed,  if  competent  for  the  city  to  give  a 
deed  of  that  water,  to  the  party  forever. 

Mr.  Shattuck.  We  should  be  glad  to  get  it,  if  we  could 
see  any  practical  way  to  take  it,  and  should  heartily  accept 
the  offer,  But  there  are  difficulties  in  the  way  of  getting  it. 

Mr.  Butler.  If  you  object  to  the  deed,  of  course  we 
need  not  file  the  other  deed  ; but  I offer  to  file  the  other  deed 
if  this  is  admitted. 

Commissioner  Russell.  You  mean  to  say  that  you  offer 
such  a deed  in  connection  with  this  one  ? 

Mr.  Butler.  Yes,  sir. 

Mr.  Shattuck.  If  you  will  convey  all  the  water  there  is 
in  the  sixty-six  feet,  so  that  nobody  can  use  the  water  for  the 
Wamesit  mills  unless  there  is  more  than  288  feet,  I do  not 
believe  there  will  be  any  difficulty  in  settling. 

Commissioner  Russell.  We  must  see  what  you  propose 
to  offer  ip  the  way  of  evidence,  not  what  you  propose  to  offer 
by  way  oi  compromise  to  these  parties.  We  have  nothing 
to  do  with  that  as  commissioners. 

Mr.  Butler.  There  is  where  I am  sorry  to  differ  from 
you  ; it  is  not  pleasant  to  do  so.  I think  we  have  this  right, 
under  the  obligation  imposed  upon  us  to  make  compensation. 
I think  you  will  find  a case  to  that  effect.  However,  I am 
trying  to  get  along.  I make  my  offer  in  good  faith,  and 
about  a matter  of  very  high  concernment.  These  gentlemen 
have  a right  to  draw  so  many  feet  of  the  water,  and  that  is 
all  the  right  they  have.  When  the  water  is  at  the  height  of 
the  permanent  stone  dam,  this  will  not  harm  them.  When 
it  is  below  that,  we  offer  them  all  the  water  they  can  possibly 
have.  I have  made  that  offer  heretofore  — made  it  to  them 
in  person ; but  I have  not  been  able  to  get  anybody  to  take 
any  water  ; they  all  want  money. 

Mr.  Shattuck.  You  offered  it  in  such  a way  that  nobody 
could  take  it.  I understand  now  that  the  Wamesit  Power 


844 


Testimony  of  Clemens  Herschel. 


Company  will  agree  to  shut  off  their  flumes  and  gates,  and 
not  draw  any  water  unless  there  is  over  288  feet  running  in 
the  river? 

Mr.  Butler.  Yes,  sir  ; they  will  be  bound  to  do  that. 

Mr.  Shattuck.  There  is  no  practicable  way  of  doing  that. 

Mr.  Butler.  It  is  perfectly  practicable.  We  have  saved 
two  cubic  feet  to  fill  our  boilers,  and  the  rest  we  have  sold 
to  the  city,  and  the  city  will  convey  it  to  you,  gentlemen, 
which  is  25  per  cent,  of  all  the  water  which  you  are  entitled 
to  by  your  deeds.  That  is  the  proposition  I make. 

Mr.  Storey.  We  do  not  object  to  the  admissibility  of 
the  deeds  from  the  city  until  the  deeds  are  offered.  When 
the  deeds  are  presented,  the  question  of  their  admissibility 
will  be  considered. 

Mr.  Butler.  We  can  go  to  work  and  have  the  deeds 
made  ; but  if  you  are  going  to  rule  out  our  title,  there  is  an 
end  of  it. 

Commissioner  Russell.  All  that  is  now  offered  before 
us  is  a certain  deed  from  the  Wamesit  Power  Company  to 
the  City  of  Boston,  with  the  statement  that  it  is  offered  for 
the  purpose  of  showing  that  the  City  of  Boston  became,  at 
the  date  of  that  deed,  and  remains,  a joint  owner  with  the 
petitioners  of  the  water-power  of  the  Wamesit  dam;  and 
upon  that  offer,  for  that  purpose,  I rule  that  the  deed  is  not 
admissible.  The  offer  is  then  made  that  the  city  will,  if 
that  deed  is  admitted  in  evidence,  supplement  the  offer  of 
that  deed  in  evidence  by  filing  in  this  case  deeds  of  the 
several  petitioners  of  certain  portions  of  the  water-power 
upon  the  Wamesit  dam. 

Mr.  Butler.  Yes,  sir  ; equal  to  the  entire  amount  of  the 
water  furnished  upon  that  dam  by  the  Sudbury  river. 

Commissioner  Russell.  It  is  for  the  petitioners  to  say 
whether  they  will  accept  the  grant  of  any  such  deeds,  when* 
offered.  It  is  sufficient  for  the  commissioners  to  say  now, 
that  no  such  deeds  are  offered,  nor  is  it  alleged  that  any 
such  deeds  are  now  in  existence,  so  that  they  are  capable  of 
being  offered.  If  they  are  offered,  we  are  not  instructed 
whether  or  not  the  petioners  will  object  to  the  introduction 
of  those  deeds,  in  addition  to  the  deed  which  is  now  offered 
in  evidence.  y 

Mr.  Butler.  My  own  belief  is,  that  it  is  competent, 
upon  this  ground  : that  we  have  put  into  that  canal  consider- 
ably more  water  than  we  have  taken  out,  and  it  will  remain 
there  forever,  as  it  stands  now,  to  be  drawn  from  that  canal. 

Mr.  Richardson.  Suppose  the  city  own  it  to-day,  and 
you  put  in  an  argument  to  these  gentlemen  that,  forever 
hereafter,  that  water  is  made  up,  so  that  really  they  are  not 


Testimony  of  Clemens  Herschel. 


845 


damaged  : to-morrow  the  city  may  sell  it,  or  convey  it  back 
to  the  Wamesit  Company. 

Mr.  Butler.  I understand  that  argument  thoroughly, 
and  therefore  I supplement  that  offer  by  making  an  offer  of 
the  deeds. 

Mr.  Richardson.  That  is  an  offer  for  a settlement  which 
I am  not  authorized  to  make. 

Commissioner  Russell.  I can  only  rule  upon  that  which  is 
offered  in  evidence,  and  I rule  that  this  deed  is  inadmissible. 

Mr.  Butler.  There  is  one  thing  further,  and  this  is  it : 
The  engineer  is  making  up  a table  out  of  the  other  tables 
which  have  been  put  in.  I am  now  in  this  trouble  ; I cannot 
cover  the  measurements  in  that  table  of  water  in  Lake  Co- 
chituate  by  any  man  who  is  in  existence.  Possibly  I can  go 
back  to  1870,  but  that  depends  upon  a witness  who  will  be 
here  at  the  next  hearing.  If  the  commissioners  rule  out  the 
report,  then  I do  not  see  how  I can  furnish  the  evidence  of 
the  measurements,  for  the  best  I can  do  is  to  take  the  man 
who  has  measured  the  water,  and  he  does  not  know  any  more 
about  it,  perhaps,  than  the  man  who  takes  the  rain-gauge  — 
hardly  so  much,  because  the  man  who  takes  the  rain-gauge 
would  know  what  the  rain-gauges  measured ; but  the  man 
who  measures  the  water  reports  something  to  somebody  else, 
who  calculates  it,  and  then  those  calculations  and  those 
measurements  are  assumed  to  be  correct,  and  put  in  the 
reports.  But  I cannot  find  the  man  who  made  the  meas- 
urements for  any  series  of  years. 

Mr.  Shattuck.  The  commissioners,  as  I understand, 
have  ruled  that  it  was  not  necessary  to  do  that. 

Commissioner  Russell.  What  the  commissioners  in- 
tended to  rule  was,  that  you  are  bound  to  show  that  meas- 
urements were  accurately  kept  by  the  city,  and  that  the 
result  of  those  measurements  was  copied  in  those  tables ; 
and  certainly  the  parties  who  made  the  report  are  themselves 
better  evidence  than  the  report  which  they  made  which  is 
now  offered. 

Mr.  Butler.  The  difficulty  is,  that  part  of  the  report 
was  made  by  a man  who  is  reporting  in  heaven  now. 

Commissioner  Russell.  I have  have  no  doubt  the  city 
can  show  the  fact  that  it  has  kept  measurements,  show  how 
they  were  kept,  and  show  the  results  that  they  have  derived 
from  them.  If  you  fail  in  that,  we  will  see  what  is  the  next 
best  evidence  you  can  offer. 

Mr.  Child.  I desire  to  put  in  the  profile  of  the  flow  at 
Talbot’s  dam, — the  one  which  Mr.  Herschel  has  just  testi- 
fied to. 


846 


Testimony  of  Clemens  Herschel. 


Clemens  Herschel,  recalled. 

Q.  (By  Mr.  Child.)  Is  this  a profile  of  observations  and 
measurements  at  Talbot’s  dam,  in  Billerica,  taken  by  an  observer 
in  3Tour  employ,  from  the  28th  day  of  June,  to  the  23d  day  of  Sep- 
tember, 1876? 

A.  Yes,  sir. 

Mr.  Shattuck.  Is  this  put  in  as  applicable  to  the  Talbot  case, 
or  ours  only? 

Mr.  Butler.  As  applicable  to  your  case. 

[Adjourned  to  Friday , Oct . 20 , at  9^  o’clock.'] 


Testimony. 


847 


Friday,  October  20th. 

The  commissioners  met  at  10  o’clock,  A.M. 

Cases  on  the  Wamesit  Dam,  resumed . 

Mr.  Butler.  I have  here  two  tables  which  I have  caused 
to  be  prepared,  taken  from  documents  already  in.  The  first 
table  shows  the  rainfall  at  Lake  Cochituate , for  the  months 
of  July,  August,  and  September,  from  1852  to  1876,  inclu- 
sive. The  second  table  shows  the  rainfall  in  Boston , for  the 
months  of  July,  August  and  September,  from  1842  to  1876, 
inclusive.  The  average  rainfall  at  Lake  Cochituate  for  July, 
August  and  September,  from  1852  to  1876,  was  13.87,  and 
the  rainfall  for  the  same  months  in  1876,  15.37,  — showing 
that  there  has  been  almost  an  inch  and  three-quarters  more 
this  year  than  in  the  average  of  the  years. 

The  Boston  table  shows  that  the  average  rainfall  at  Bos- 
ton, for  July,  August  and  September,  1842  to  1876  (that 
is,  for  thirty-four  years)  was  12.25  ; for  this  year  alone  the 
rainfall  was  11.94,  — showing  how  near  the  rainfall  of  this 
year  is  to  being  an  average  rainfall. 

[The  following  are  the  tables  : — ] 


848 


Wamesit  Dam, 


Table  showing  Rainfall  at  Lake  Cochiiuate  for  the  months  of  July , August 
and  September,  from  1852  to  1876,  inclusive. 


Years. 

July. 

August. 

September. 

Totals. 

1852  

2.16 

8.27 

2.04 

12.47 

1853  

2.84 

7.20 

5.44 

15.48 

1854  

2.32 

0.28 

3.68 

6.28 

1855  

3.86 

0.77 

0.75 

5.38 

1856  

1.76 

11.40 

3.13 

16.29 

1857  

8.85 

6.62 

4.27 

19.74 

1858  

3.46 

6.42 

5.17 

15.05 

1859  

0.99 

7.69 

4.56 

13.24 

1860  

6.82 

4.89 

9.92 

21.63 

1861 

1.62 

7.79 

2.76 

12.17 

1862  

6.54 

1.43 

2.62 

10.59 

1863  

14.12 

5.61 

3,39 

23.12 

1864  

1.06 

3.56 

1.52 

6.14 

1865  

3.10 

3.36 

1.66 

8.12 

1866  

13.35 

3.98 

8.36 

25.69 

1867  

5.36 

12.36 

1.08 

18.80 

1868  

2.16 

7.38 

7.69 

17.23 

1869  

2.63 

2.34 

8.49 

13.46 

1870  

3.10 

2.03 

0.64 

5.77 

1871 

2.20 

3.56 

1.46 

7.22 

1872  

5.55 

9.76 

6.29 

21.60 

1873  

4.08 

7.17 

2.62 

13.87 

1874  

3.16 

4.83 

1.55 

9.54 

1875  

3.57 

6.53 

3.43 

12.53 

1876  

9.49 

2.19 

3.69 

15.37 

Average 

4.57 

6.46 

3.85 

13.87 

Average  rainfall  at  Lake  Cochituate  July,  August  and  September,  1852-76  = 13.87 
Rainfall  at  Lake  Cochituate  July,  August  and  September,  1876  =15.37 


Testimony, 


849 


Table  showing  Rainfall  in  Boston  for  the  months  of  July , August  and 
September,  from  1842  to  1876,  inclusive. 


Years. 

July. 

August. 

September. 

Totals. 

1842.  

1.82 

4.44 

3.25 

9.51 

1843  

2.15 

6.88 

0.98 

10.01 

1844 

2.17 

2.62 

3.53 

8.32 

1845  

3.28 

1.82 

2.23 

7.33 

1846  

2.51 

1.80 

1.30 

5.61 

1847  

2.65 

6.45 

6.64 

15.74 

1848  

1.35 

3.10 

3.55 

8.00 

1849  

0.85 

6.25 

1.25 

8.35 

1850  

2.70 

5.30 

7.15 

15.15 

1851 

3.09 

1.27 

3.50 

7.86 

1852  

3.28 

7.63 

1.65 

12.56 

1853  

3.64 

9.40 

3.80 

16.84 

1854  

3.70 

0.58 

3.86 

8.14 

1855  

4.15 

1.46 

1.13 

6.74 

1856  

4.02 

11.11 

4.90 

20.03 

1857  

5.53 

7.18 

2.56 

15.27 

1858  

4.56 

7.03 

6.02 

16.61 

1859  

1.58 

4.72 

4.40 

10.70 

1860  

5.90 

4.30 

7.35 

17.55 

1861 

2.76 

6.04 

1.77 

10.57 

1862  

7.33 

4.20 

5.61 

17.14 

1863  

12.38 

6.64 

3.12 

21.14 

1864  

1.90 

4.17 

2.60 

8.67 

1865  

4.26 

1.42 

0.62 

6.30 

1866  

5.42 

3.87 

5.90 

15.19 

1867  

4.76 

10.78 

0.44 

15.98 

1868  

1.10 

7.53 

11.95 

20.58 

1869  

3.30 

2.19 

5.18 

10.67 

1870  

4.01 

1.57 

0.67 

6.25 

1871 

2.87 

3.31 

1.37 

7.55 

1872  

4.48 

10.48 

7.37 

22.33 

1873  

3.25 

6.46 

2.78 

12.49 

1874  

2.70 

6.48 

1.66 

10.84 

1875  

3.84 

3.50 

3.32 

10.66 

1876  

6.50 

1.82 

3.62 

11.94 

Average  ...... 

3.71 

4,94 

3.60 

12.25 

Average  rainfall  at  Boston  for  July,  August  and  September,  3842-76  = 12.25 
Rainfall  at  Boston  for  July,  August  and  September,  1876  =11.94 


850 


Wamesit  Dam. 


Mr.  Butler.  I believe  we  have  nothing  else  to  offer. 

Commissioner  Russell.  Has  Mr.  Shattuck  anything  else 
to  offer? 

Mr.  Shattuck.  We  have  closed  all  the  Wamesit  dam 
cases.  I shall  put  in  some  matters  in  the  Belvidere  case 
which  may  have  a bearing  upon  this  (it  is  hardly  worth 
while  to  keep  this  case  open  on  that  account)  ; for  instance, 
anything  which  bears  upon  the  water  in  Concord  river,  and 
also  some  testimony  that  I may  put  in  on  the  use  of  steam, 
which  has  some  bearing  on  these  other  mills.  I don’t  care  to 
put  it  in  twice.  It  may  just  as  well  go  in  in  these  other 
cases  as  in  this.  The  commisioners  will  also  understand  that 
as  to  what  is  called  the  Belvidere  mill  of  Wamesit  dam  we 
did  not  put  in  our  title.  It  was  only  in  one  deed  ; but  it  is 
on  a petition  with  the  lower  Belvidere,  both  mills  being  of 
the  same  corporation  and  on  the  same  petition. 

Mr.  Butler.  I want  to  call  your  attention  to  the  fact 
that  you  have  not  given  your  title  in  the  " Belvidere  No.  2 ” 
case  at  all. 

Mr.  Shattuck.  I know  that.  I said  at  the  time  that  I 
should  not.  I have  got  the  deed,  and  I can  put  it  in  in  a 
very  few  minutes.  I did  not  want  to  divide  that  petition. 

Mr.  Butler.  I don’t  care  when  it  goes  in,  if  it  goes 
in  at  some  time.  I only  want  to  see  that  there  is  a title 
proved. 

Mr.  Shattuck.  To  the  "Belvidere  No.  2”  there  is  only 
one  deed.  The  "Belvidere  No.  1 ” will  require  a great  many 
deeds. 

Mr.  Storey.  In  regard  to  this  testimony  that  Mr.  Shat- 
tuck proposes  to  offer  in  regard  to  the  flow  of  the  Sudbury 
river  and  in  regard  to  the  use  of  steam,  I supposed  the  testi- 
mony would  be  put  in  in  this  case,  and  I wanted  to  get  the 
benefit  of  it.  I,  therefore,  don’t  want  this  case  closed  yet. 
But  if  it  ceases  to  be  testimony  in  this  case,  I thought,  never- 
theless, that  Gen.  Butler  might  consent  that  it  should  be  taken 
in  the  case  which  is  to  follow,  — that  any  testimony  applica- 
ble to  the  Wamesit  dam  cases  may  be  taken  in  the  cases  ot 
"Belvidere  mill  No.  1 ” and  "Belvidere  mill  No.  2.” 

An  agreement  to  the  foregoing  effect  was  entered  into, 
namely,  — 

Agreed,  that  any  testimony  applicable  to  the  cases  of  the  parties 
owning  upon  Wamesit  dam,  which  may  be  introduced  in  the  cases 
on  the  petition  of  the  Belvidere  Company,  may  be  used  in  the  cases 
which  have  already  been  heard  for  parties  petitioning  on  the  Wam- 
esit dam,  and  also  in  the  case  on  the  petition  of  Mrs.  Richmond. 


Petition. 


851 


NANCY  L.  RICHMOND  vs.  CITY  OF  BOSTON. 

D.  S.  & G.  F.  Richardson  appear  for  the  petitioner. 

Mr.  G.  F.  Richardson  reads  the  petition  of  Nancy  L. 
Richmond : — 

Commonwealth  of  Massachusetts. 

Middlesex , ss. 

To  the  Sheriffs  of  our  several  Counties  or  their  deputies. 

Greeting : — 

We  command  you  to  summon  the  Cityjof  Boston,  a municipal 
corporation  established  under  the  laws  of  this  Commonwealth,  in 
the  County  of  Suffolk,  to  appear  before  the  Justices  of  our  Superior 
Court,  to  be  holden  at  Lowell,  within  and  for  our  County  of  Mid- 
dlesex, on  the  first  Monday  of  September  next,  and  answer  to  the 
petition  of  Nanc}r  L.  Richmond,  of  Lowell,  aforesaid,  filed  in  the 
office  of  the  Clerk  of  the  Courts  for  said  county  of  Middlesex  on 
the  day  of  the  date  hereof,  a true  and  attested  copy  of  which  peti- 
tion is  hereto  annexed. 

And  have  you  there  this  writ  with  your  doings  thereon. 

Witness,  Lincoln  F.  Brigham,  Esquire,  at  Cambridge,  this  tenth 
day  of  June,  one  thousand  eight  hundred  and  seventy-five. 

THEO.  C.  HURD,  Clerk. 

To  the  Hon.  the  Justice  of  the  Superior  Court  now  holden  at  Cam- 
bridge, within  and  for  the  County  of  Middlesex  and  Commonwealth 

of  Massachusetts : — 

Your  petitioner,  Nancy  L.  Richmond,  of  Lowell,  in  said  county* 
respectfully  represents  that  she  now  is,  and  has  been  for  more  than 
three  years  now  last  past,  the  owner  in  fee-simple  and  possessed  of 
a certain  piece  or  parcel  of  land  with  the  buildings  thereon,  situate 
in  Lowell,  in  said  county,  which  is  bounded  and  described  as 
follows,  viz. : a certain  piece  of  land,  with  the  buildings  thereon 
and  machinery  and  fixtures  therein,  situate  on  the  easterly  side  of 
Lawrence  street,  and  thus  bounded,  viz. : beginning  at  the  north- 
westerly corner  of  the  premises  on  the  easterly  side  of  said  street 
at  the  southwesterly  corner  of  land  of  one  Dugdale,  thence  b}'  said 
Dugdale  land  easterly  one  hundred  and  forty-two  and  five-tenths 
feet,  more  or  less,  to  Concord  river,  still  in  and  across  said  river  to 
land  of  Rogers,  thence  up  said  river  southerly  to  the  north  side  of 
a large  rock  at  the  foot  of  Massic  falls,  so  called,  and  on  the  east 
side  of  said  river ; thence  N.  84°  E.  three  rods  to  a black-oak  tree, 
marked,  and  then  in  the  same  course  two  rods  further  to  a stake 
and  stones  ; thence  S.  2°  W.  fifteen  and  eight-tenths  rods  to  a stake 
and  stones  two  rods  easterly  of  a black-oak  tree,  marked  ; thence 
S.  75°  W.  two  rods  to  a black-oak  tree,  so  on  in  the  same  course 


852 


Case  of  Nancy  L.  Kichmond. 


three  rods  to  a small  oak-tree  and  a stone  at  said  river ; thence 
southerly  up  said  river  by  high-water  mark  sixteen  rods ; thence 
across  said  river  in  such  a direction  as  to  strike  the  northeasterly 
corner  of  land  now  or  formerly  of  Harriet  M.  Clark,  at  said  river, 
and  on  the  westerly  side  thereof ; thence  northerly  along  the  bank- 
wall  on  the  westerly  side  of  said  river  till  it  comes  to  the  north- 
easterly corner  of  land  of  William  H.  Loughlin ; thence  westerly 
by  said  Loughlin  land  to  Lawrence  street ; thence  northerly  along 
said  Lawrence  street  to  the  point  of  beginning,  together  with  the 
island  and  fall  and  dams  and  structures  within  said  bounds,  and 
all  the  water-rights,  water-power  and  water  privileges,  and  all 
other  rights,  easements  and  privileges  belonging  to  or  in  any  way 
appertaining  to  said  land,  falls,  dams  and  structures,  and  also  upon 
the  same  a valuable  dam  across  said  river  within  said  limits,  and 
sluiceways,  flumes,  raceways,  water-power,  water-rights  and  water- 
privileges  supplied  by  the  waters  of  Concord  river,  with  the  right 
to  maintain,  increase  and  improve  the  same ; also  upon  the  said 
premises,  one  paper-mill  and  two  woollen  mills,  with  the  machinery, 
apparatus  and  wheels  connected  therewith. 

And  your  petitioner  further  says,  that  for  more  than  three  years 
now  last  past  she  has  been,  and  now  is,  seized  and  possessed  of 
the  land,  buildings,  rights,  privileges  and  water-power  aforesaid  in 
fee-simple,  and  of  right  ought  to  enjoy  the  same  uninterrupted, 
and  the  use  of  the  waters  of  Sudbury  river  and  Farm  pond  and 
their  tributaries,  as  they  would  natually  flow  into  said  Concord  river 
to  her  said  premises,  the  said  Sudbury  river  and  Farm  pond  hav- 
ing been  from  time  immemorial  tributary  to,  and  flowing  into,  Con- 
cord river,  and  supplying  the  same  in  natural  channels  with  large 
quantities  of  water  above  said  dam.  And  your  petitioner  says, 
that  for  more  than  three  years  last  past  she  has  had,  and  still  has 
and  possesses  in  fee-simple  the  right  that  said  Concord  river  should 
flow  in  the  same  manner,  quantity,  volume  and  force,  and  within  the 
same  limits  and  channel,  and  with  the  same  sources  of  suppty  as 
said  river  did  before  the  action  of  said  City  of  Boston  hereinafter 
set  out,  and  had  done  from  time  immemorial,  and  that  the  waters 
thereof  should  continue  to  flow  to  said  dam  in  its  accustomed  and 
ancient  channels,  and  by  suitable  canals  and  sluiceways  made  by 
petitioner  on  her  premises  aforesaid,  that  the  quantity  of  water  in 
said  Concord  river  might  flow  on  to  her  said  premises,  to  be  used 
by  her  for  water-power  and  other  purposes  on  her  said  premises. 
And  your  petitioner  says  that  she  is,  and  for  more  than  three 
years  last  past  has  been,  seized  and  possessed  in  fee-simple  of  the 
right  to  have  the  waters  of  said  Farm  pond,  so  called,  situate  in 
Framingham,  in  said  county,  and  of  Sudbury  river,  and  their  tribu- 
taries, flow  in  their  natural  and  ancient  channels  into  said  Concord 
river  above  said  dam,  and  to  said  dam,  and  by  means  of  canals 
and  sluiceways  to,  and  on  and  over,  her  said  premises,  to  supply 
her  with  her  water-rights  and  water-power  as  aforesaid  thereon,  as 
they  naturally  would  have  done  but  for  the  acts  and  doings  of  said 
City  of  Boston  as  herein  set  out.  And  30111’  petitioner  fuither 
represents  that  she  now  owns,  and  has  owned  for  the  past  three 
years  the  right  to  use  on  her  said  premises  all  the  waters  of  said 


Petition. 


853 


Concord  river  for  all  legal  purposes  as  her  property,  and  the  right 
to  utilize  the  same  for  the  purpose  of  supplying  water-power, 
water-rights  and  water  privileges  on  her  said  premises.  And  your 
petitioner  further  represents  that,  by  virtue  of  an  act  of  the  Legis- 
lature of  the  Commonwealth  of  Massachusetts,  entitled  “ An  Act 
to  authorize  the  City  of  Boston  to  obtain  an  Additional  Supply  of 
Pure  Water,”  approved  April  8,  1872,  the  said  City  of  Boston, 
situate  in  the  County  of  Suffolk,  has,  within  three  years  last  past, 
first  actually  taken,  at  the  point  or  points  authorized  by  said  act, 
through  the  agency  pointed  out  in  said  act,  and  for  the  purposes 
therein  set  forth,  all  the  waters  of  said  Sudbury  river  and  all  the 
waters  of  said  Farm  pond,  and  of  the  streams  and  tributaries, 
whether  natural  or  artificial,  flowing  into  them  by  means  of  certain 
dams,  obstructions  and  works  built  by  said  city  under  said  act 
and  the  authority  thereof,  and  for  the  purposes  therein  authorized, 
and  still  continues  and  maintains  said  taking  and  said  dam  ob- 
structions and  works,  and  have  withdrawn  and  diverted  the  waters 
of  said  Sudbury  river  and  Farm  pond  and  their  tributaries  from 
their  natural  flow,  course  and  current,  so  that  the  waters  thereof 
no  longer  flow  into  said  Concord  river,  and  are  prevented  by  said 
city  from  so  flowing  and  from  passing  in  their  natural  channel,  and 
by  canals  and  sluiceways,  to  and  on  said  premises  of  your  peti-  • 
tioner,  as  she  is  rightly  entitled  to  have  them  flow,  and  as  they 
would  flow  naturally  if  not  so  interrupted.  And  your  petitioner 
further  says,  that  by  the  acts  of  said  City  of  Boston,  she  is  de- 
prived of  a large  part  of  her  water-power,  rights,  privileges,  * 
and  other  rights  aforesaid,  and  of  her  right  to  the  natural  flow  of 
water  to  and  in  said  Concord  river,  and  to  her  said  dam,  canal  and 
sluiceways,  and  of  the  right  to  have  the  same  flow  from  said  Con- 
cord river  to,  upon  and  over  her  said  premises,  to  supply  her 
rights,  easements,  privileges  and  water-power  aforesaid  upon  her 
said  premises  ; and  the  City  of  Boston  has  taken  and  appropriated 
as  aforesaid  all  the  waters  of  said  Sudbury  river  and  Farm  pond 
and  their  tributaries  to  their  own  use,  to  the  great  damage  of  your 
petitioner,  sustained  in  her  property  aforesaid.  And  your  peti- 
tioner further  says,  that  b}r  the  taking  of  the  waters  of  said  Sud- 
bury river  and  Farm  pond  and  their  tributaries,  and  by  the  erection 
and  maintenance  of  their  said  dam  and  works,  and  by  the  accept- 
ance of  the  powers  and  privileges  given  by  said  act  by  said  city, 
and  by  the  acts  and  doings  of  said  city  under  said  act,  and  by 
their  taking  and  interfering  with,  and  injury  to,  the  use  and  enjoy- 
ment of  the  waters  of  said  river,  to  which  at  the  time  of  such 
taking  your  petitioner  was  justly  entitled,  your  petitioner  has  sus- 
tained great  damages  in  her  property ; and  she  has  not  agreed, 
and  has  not  been  able  to  agree,  with  said  City  of  Boston  upon  the 
damages  to  be  paid  her  therefor,  and  said  city  has  not  offered  to 
pay  her  as  such  damages  any  sum  whatever.  Wherefore  your 
petitioner  prays  this  honorable  Court  for  the  assessment  of  her 
said  damages  for  the  taking  of  the  said  waters  of  said  Sudbury 
river  and  Farm  pond  and  their  tributaries,  and  the  acts  and  doings 
of  said  city  aforesaid,  and  that,  after  due  notice  and  summons  to 
said  City  of  Boston,  will  appoint,  upon  default  or  hearing  of  said 


854 


Case  of  Nancy  L.  Richmond. 


City  of  Boston,  three  judicious  and  disinterested  freeholders  of 
this  Commonwealth,  who  shall  assess  said  damages  according  to 
law,  and  that  all  such  other  and  further  proceedings  may  be  had  in 
the  premises  as  to  law  and  justice  shall  appertain. 

NANCY  L.  RICHMOND. 

Lowell,  June  10,  1875. 

Mr.  G.  F.  Richardson.  We  do  not  find  any  answer  in 
this  case,  but  I presume  the  answer  is  the  same  as  in  the 
Wamesit  dam  cases. 

[The  answer,  being  the  same  as  in  the  Wamesit  dam  cases, 
is  not  printed.] 

The  evidence  in  this  case  will  probably  be  short,  from  the 
fact  that  so  much  ground  has  been  covered  in  the  other  cases 
by  the  evidence. 

This  differs  very  substantially  from  the  other  cases  that 
have  been  heard,  from  the  fact  that  this  mill  has  been  used 
for  a paper-mill,  making  it  necessary  to  run  it  nights  as  well 
as  in  the  daytime.  Many  years  ago  it  belonged  to  P.  O. 

' Richmond,  of  Lowell.  In  1858  it  came  into  the  hands  of 
C.  B.,  Mary  L.,  John  B.,  Alanson  J.,  and  Caroline  F.  Rich- 
mond. A deed  was  executed  in  that  year  by  which  Caro- 
line F.  was  to  own  an  undivided  eighth,  Mary  L.  an  undi- 
vided eighth,  John  B.  an  undivided  eighth,  C.  B.  Richmond 
an  undivided  eighth,  and  A.  J.  Richmond  an  undivided 
half.  Subsequently,  by  several  conveyances,  C.  B.  Rich- 
mond bought  out  Mary  L.’s  eighth,  and  bought  also  John 
B.’s  eighth.  Subsequently  he  bought  also  Caroline  F.’s 
eighth,  which,  with  the  eighth  he  owned,  gave  him  an  undi- 
vided half.  A.  J.  Richmond  subsequently  died.  His  estate 
was  settled.  He  died  intestate,  leaving  quite  a number  of 
children.  Samuel  W.  Stickney  was  appointed  guardian  of 
the  children  ; and,  under  license  of  the  court,  he  sold  their  in- 
terest to  C.  B.  Richmond,  which  was  an  undivided  half, — the 
half  which  Alanson  J.  had  owned, — so  that  at  that  time  the 
entire  title  was  in  Charles  B.  Richmond.  Here  is  the  deed 
from  the  guardian,  dated  August  1st,  1863,  to  Charles  B. 
Richmond : — 

Know  all  men  by  these  Presents , That  whereas,  I,  Samuel  W. 
Stickney,  of  Lowell,  in  the  County  of  Middlesex,  and  Common- 
wealth of  Massachusetts,  guardian  of  James  H.  Richmond,  Herbert 
Richmond,  Walter  S.  Richmond,  Anna  De  Rose  Richmond,  Elbert 
W.  Richmond,  and  Bayard  Richmond,  all  of  Belmont,  in  said 
county,  minors,  and  children  of  Alanson  J.  Richmond,  late  of  said 
Lowell,  deceased,  by  an  order  of  the  Probate  Court  held  at  Lowell, 
within  and  for  said  County  of  Middlesex,  on  the  second  day  of 


Deed. 


855 


June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
sixty-three,  was  licensed  and  empowered  to  sell  and  pass  deeds 
to  convey  certain  real  estate  of  the  said  minors  ; and  whereas  I, 
the  said  guardian,  having  given  public  notice  of  the  intended  sale, 
by  causing  notifications  thereof  to  be  published  once  a week  for 
three  successive  weeks,  prior  to  the  time  of  sale,  in  the  newspaper 
called  the  Lowell  Weekty  Journal,  printed  at  said  Lowell,  and 
having  first  taken  the  oath,  and  given  the  bond  by  law  in  such 
cases  required,  did,  on  the  twenty-first  day  of  July,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  sixty-three,  pursuant  to 
the  order  and  notice  aforesaid,  sell  by  public  auction,  the  real 
estate  of  the  said  minors,  hereinafter  described,  to  Charles  B.  Rich- 
mond, of  said  Lowell,  for  the  sum  of  nine  thousand  two  hundred 
thirty-two  and  T8J^-  dollars,  he  being  the  highest  bidder  therefor. 

Now  therefore  know  ye,  that  I,  the  said  Samuel  W.  Stickney, 
guardian,  as  aforesaid,  by  virtue  of  the  power  and  authority  in  me 
vested,  as  aforesaid,  and  in  consideration  of  the  aforesaid  sum  of 
nine  thousand  two  hundred  thirty -two  and  y8^  dollars  to  me  paid 
by  the  said  Charles  B.  Richmond,  the  receipt  whereof  is  hereby 
acknowledged,  do,  by  these  presents,  give,  grant,  sell,  and  convey 
unto  the  said  Charles  B.  Richmond,  his  heirs  and  assigns,  all  the 
right,  title,  and  interest  of  said  minors  in  and  to  the  following 
parcel  of  land,  with  the  buildings  thereon,  and  machinery  and  fixt- 
ures therein,  situate  on  the  easterly  side  of  Lawrence  street,  in 
said  Lowell,  and  thus  bounded  and  described,  viz. : Beginning  at 
the  northwesterly  corner  of  the  premises  at  a stone-bound  on  the 
easterly  side  of  said  Lawrence  street,  at  the  southwestern  corner 
of  land  formerly  of  J.  F.  Gage  ; thence  by  said  Gage  land,  one 
hundred  and  twenty-eight  and  t7q-  feet,  more  or  less,  to  Concord 
river,  and  still  on  across  said  river  to  land  of  the  Rogers  ; thence 
up  said  river,  southerly,  to  the  north  side  of  a large  rock  at  the 
foot  of  Massic  falls,  so  called,  and  on  the  east  side  of  said  river ; 
thence  northerly  84°  easterly,  three  rods  to  a black-oak  tree,  marked, 
and  then  in  the  same  course,  two  rods  further  to  a stake  and 
stones  ; thence  southerly  2°  westerly,  fifteen  and  y8^  rods,  to  a 
stake  and  stones,  two  rods  easterly  of  a black-oak  tree,  marked ; 
thence  southerly  75°  westerly,  two  rods  to  a black-oak  tree,  and  so 
on  in  the  same  course,  three  rods  to  a small  oak-tree  and  a stone 
at  said  river ; thence  southerly,  up  said  river,  by  highwater  mark, 
sixteen  rods  ; thence  across  said  river,  in  such  a direction  as  to 
strike  the  northeasterly  corner  of  land  now  or  formerly  of  Harriet 
M.  Clark,  at  said  river,  and  on  the  westerly  side  thereof ; thence 
by  said  Clark  land,  and  land  now  or  formerly  of  S.  N.  Wood, 
westerly,  one  hundred  and  forty-six  and  tVo  feet,  more  or  less,  to 
said  Lawrence  street ; thence  northerly,  on  said  Lawrence  street, 
four  hundred  and  twenty-four  and  y9^  feet,  to  a large  elm-tree  ; 
thence  still  northerly,  by  said  Lawrence  street,  two  hundred  and 
fifty-three  and  feet,  to  the  point  begun  at;  together  with  the 
island,  and  falls,  and  dams  and  structures  within  said  bounds, 
and  all  the  water-rights,  water-power  and  water  privileges,  and  all 
other  rights,  easements  and  privileges  belonging  to,  or  in  any  way 
appertaining  to,  said  land,  falls,  dams  and  structures. 


856 


Case  of  Nancy  L.  Richmond. 


Being  the  same  premises  described  in  a deed  from  Lucy  A. 
Richmond  and  others  to  said  Alanson  J.  Richmond,  dated  April 
27,  A.  D.  1858  ; recorded  with  Middlesex  Deeds,  North  District, 
book  15,  page  37. 

To  have  and  to  hold  the  aforegranted  premises,  with  all  the 
rights,  privileges  and  appurtenances  to  the  same  belonging  to  him, 
the  said  Charles  B.  Richmond,  his  heirs  and  assigns,  to  his  and 
their  use  and  behoof  forever. 

In  witness  whereof,  I,  the  said  Samuel  W.  Stickney,  guardian,  as 
aforesaid,  have  hereunto  set  my  hand  and  seal,  this,  twenty-third 
day  of  July,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-three. 

Signed,  sealed,  and  delivered, 
in  presence  of 

J.  F.  Rogers. 

SAMUEL  W.  STICKNEY, 

Guardian. 

[$10  stamp.] 


Subsequently  Mr.  Richmond  died,  leaving  a will,  which 
was  duly  proved,  in  September,  1873  ; and  by  that  will, 
after  making  some  specific  bequests,  he  gives  all  the  rest 
and  remainder  of  his  estate,  of  every  kind,  name,  and 
nature,  to  his  wife,  the  present  petitioner. 

Mr.  Butler.  Won’t  you  give  the  consideration  of  that 
half? 

Mr.  G.  F.  Richardson.  It  is  done  in  this  deed. 

Commissioner  Russell.  The  agreement  is  thus  : Title  of 
petitioner  admitted,  and  deed  from  Samuel  W.  Stickney, 
guardian,  to  Charles  B.  Richmond,  is  printed  for  the  pur- 
pose of  showing  the  description  of  the  premises  and  the 
consideration  of  the  conveyance.  The  consideration  is 
$9,232.80. 

Mr.  G.  F.  Richardson.  In  this  conveyance  there  was 
the  release  of  the  right  of  dower  of  the  widow  of  Alanson 
J.  Richmond.  That  need  not  be  printed.  In  some  of  the 
old  conveyances  reference  is  made  at  different  times  to  mort- 
gages on  the  property.  Those  have  been  all  paid,  and  the 
title  stands  now  in  Mrs.  Richmond,  free  and  clear  of  all 
incumbrance. 


Testimony  of  Daniel  Coburn. 


857 


TESTIMONY  FOR  THE  PETITIONER. 

Daniel  Coburn,  sworn . 

Q.  (By  Mr.  G.  F.  Richardson.)  Where  do  you  reside? 

A.  In 

Q.  How  long  have  you  lived  there? 

A.  I was  born  there  and  lived  there  most  of  my  days.  I am 
fifty-seven  years  old. 

Q.  How  long  have  you  known  this  Massic  falls  property  ? 

A.  Forty-five  to  forty-seven  years. 

Q.  As  near  as  you  can  remember  the  condition  of  the  property, 
has  there  been  any  substantial  change  in  the  dam? 

A.  I should  think  it  may  have  been  raised  or  lowered  a little  ; 
I am  not  sure  about  it  — not  so  long  ago  as  that. 

Q.  For  the  last  twenty  years  you  have  known  it  somewhat  ? 

A.  Yes,  sir,  for  the  last  twent}T  years  I have  known  it  some- 
what ; and  I should  say  it  has  not  been  changed. 

Q.  Were  you  employed  by  the  owners  at  different  times  to  work 
in  relation  to  the  water-works  there? 

A.  Yes,  sir  ; for  the  last  fifteen  or  twenty  years  my  business  has 
been  that  of  a millwright  and  mechanical  engineer,  and  setting 
wheels  and  adjusting  machinery  and  la}dng  it  out. 

Q.  How  many  of  the  wheels  that  are  usecl  there  have  you  as- 
sisted in  setting? 

A.  Four  of  them.  I think  there  are  five  wheels. 

Q.  Now,  won’t  you  give  us  the  wheels  in  their  rated  capacity? 
Take  the  wheel  up  nearest  the  Concord  river? 

A.  There  are  two  wheels  nearest  the  Concord  river.  The 
Blake  wheel  drives  the  paper-mill  engines. 

Q.  Now  take  what  you  call  the  Blake  wheel  in  the  paper-mill. 
What  was  the  horse-power  of  that? 

A.  That  was  rated  at  thirty  horse-power,  I believe. 

Q.  What  is  the  actual  power? 

A.  A little  over  fifteen. 

Q.  That  is  a five-foot  wheel  ? 

A.  Yes,  sir,  that  is  a five-foot  wheel. 

Q.  And  what  per  cent,  does  it  give  of  power? 

A.  I think  that  wheel  in  its  present  setting  will  not  give  more 
than  from  forty-five  to  fifty-five  per  cent.  ; fifty  per  cent,  I should 
sa}r,  would  be  the  medium. 

Q.  How  much  power  do  you  mean  that  it  actually  gives  now? 

A.  About  fifteen  horse-power.  It  is  rated  at  thirty  horse- 
power. 

Q.  Now  the  present  wheel : we  will  call  that  the  Whitney  wheel. 
What  is  the  diameter  of  that,  — that  in  the  brick  mill? 

A.  I think  that  one  is  forty-eight  inches. 

Q.  What  is  the  power  of  that?  What  is  the  rated  power? 

A.  Well,  it  is  rated  at  twenty  horse-power. 

Q . Then  there  is  another  Whitney  wheel,  is  there  not? 

A.  Yes,  sir. 


858 


Case  of  Nancy  L.  Richmond. 


Q.  What  percentage  does  that  give  — that  Whitney  wheel  ? 

A.  That  Whitney  wheel,  I think,  gives  about  sixty  per  cent. 

Q.  And  the  other  Whitney  wheel? 

A.  The  other  Whitney  wheel  is  rated  at  fifteen  horse-power. 
It  is  a forty -two  inch  wheel. 

Q.  And  that  gives  how  much  power  ? 

A.  That  has  never  been  tested,  to  my  knowledge.  I should 
judge  that  that  would  give  about  ten  horse-power,  i.  e .,  the  paper- 
mill  wheel.  It  is  the  paper-mill  wheel. 

Q.  Now  there  are  two  of  the  Blake  wheels  beside  the  one  men- 
tioned above  — a right  and  a left  wheel  ? 

A.  Yes,  sir. 

Q.  What  is  the  power  of  those  two  wheels? 

A.  They  are  rated  at  thirty  horse-power  here. 

Q.  How  much  do  they  give? 

A.  I think  those  come  up  to  nearly  seventy  per  cent.  They 
probably  give  about  forty  to  forty-five  horse  — the  two  together, 
forty -five  to  fifty. 

Q.  Now,  Mr.  Coburn,  there  used  to  be  a canal  (we  see  now  the 
remnants  of  it)  at  the  head  of  the  present  canal,  down  into  the 
Concord  river  — one  made  there  years  ago? 

A.  I think  that  was  used  as  a raceway.  They  used  the  old- 
fashioned  tub-wheel  at  that  time  — an  undershot  wheel. 

Q.  Now,  what  would  be  the  expense  of  putting  that  in  condi- 
tion so  that  a wheel  could  be  set  there? 

A.  I suppose  you  could  fit  that  up  so  as  to  make  the  canal  fit 
for  it  and  put  a wheel  down  for  about  $1,000. 

Q.  Now,  what  could  a wheel  be  purchased  for,  to  be  used  in 
that  canal,  and  how  much  power  could  be  supplied? 

A.  Well,  there  are  different  kinds  of  wheels.  You  might  get  a 
high-cost  wheel  or  a medium-cost  wheel.  I suppose  a wheel  built 
at  Orange  (I  have  never  had  much  experience  with  it)  that  would 
give  you  50  liorse-power.  It  would  cost  you  $3,000  to  $4,000. 
There  is  one  used  up  to  Farrington’s. 

Q.  Do  3’ou  know  where  else  it  is  used? 

A.  There  is  one  used  over  at  Acton  in  the  powder-mills. 

Q.  Now,  the  first  Blake  wheel  that  you  spoke  of  as  furnishing 
about  50  per  cent.  — what  would  be  the  expense  of  replacing  that 
with  an  Orange  wheel? 

A.  Probably  that  could  be  done  from  $800  to  $1,000,  to  put  it 
in  good  condition.  It  would  be  difficult  to  tell  without  examining 
the  ground. 

Q.  By  that  you  mean  “ putting  the  property  in  condition  for  the 
wheel  ” ? You  don’t  include  the  cost  of  the  wheel  ? 

A.  No,  sir. 

Q.  What  wants  to  be  done  to  make  that  more  efficient? 

A.  It  wants  to  be  sunk  down  and  to  make  more  room  for  the 
water  to  escape.  It  wants  more  vent. 

Q.  How  much  power  could  you  get  from  a wheel  that  you  could 
put  in  that  position  at  that  place;  i.  e.,  the  first  Blake  wheel? 
First  I take  the  wheel  that  was  to  be  placed  in  the  old  racewa}r, 
which  we  call  the  old  canal. 


Testimony  of  Daniel  Coburn. 


859 


A.  The  one  we  are  speaking  about  now  would  be  the  farthest 
on  the  Concord  river. 

Q.  It  is  what  we  call  the  first  Blake  wheel — • the  one  you  spoke 
of  first  — the  wheel  that  gave  50  per  cent? 

A.  That  is  under  the  brick  mill. 

Q.  Now  you  can  put  in  a wheel  there.  This  was  only  15  horse- 
power. How  much  horse-power  could  you  get  from  a wheel  in 
there  ? 

A.  Oh,  I suppose  you  could  get  54  horse-power ; that  is  from  a 
high-cost  wheel. 

Q.  How  much  would  that  cost? 

A.  Well,  probably,  seven  or  eight  thousand  dollars.  This 
Orange  wheel  would  probably  cost  about  $3,000.  It  is  almost  of 
the  same  power.  There  is  probably  about  3 per  cent,  difference. 

Q.  Well,  in  place  of  the  two  Whitney  wheels  I suppose  you 
could  put  other  wheels.  Now,  what  would  be  the  expense  with 
them? 

A.  The  best  results  I have  known  with  a Whitney  wheel  is  66J 
per  cent.  There  are  wheels  I know  of  that  would  give  80  per 
cent. 

Q.  How  much  would  be  the  expense  of  preparing  the  land  and 
replacing  the  wheel  in  the  case  of  the  Whitney  wheel? 

A.  It  would  not  cost  so  much  as  where  the  Blake  wheel  is.  If 
they  were  done  together  they  could  be  done  cheaper  than  if  done 
singly. 

Q.  Suppose,  in  place  of  the  present  Whitney  wheels,  jrou  put  in 
two  Orange  wheels.  The}7  would  give  you  for  each  of  them  fifty 
horse-power.  What  would  be  the  expense  of  preparing  the  place 
for  them? 

A.  Probably  the  whole  could  be  done  for  $1,200. 

Q.  There  is  an  island  in  this  property,  is  there  not,  — an  island 
in  the  river? 

A . Yes,  sir. 

Q.  Was  there  formerly  a mill  there? 

A.  There  was  a mill  on  the  island  there  quite  a number  of  years 
ago. 

Q.  And  there  is  land  on  the  other  side  of  the  river? 

A.  I think  there  never  was  a mill  there. 

Q.  Is  there  land  on  the  other  side  of  the  river  ? 

A.  I was  not  aware  that  there  was  — not  claimed  in  the  title 
there. 

Mr.  D.  S.  Richardson.  There  is  half  an  acre. 

Q.  Now,  upon  the  side  of  the  river  where  this  canal  is,  and 
where  the  present  works  are,  is  there  room  for  other  mills  ? 

A.  I should  think  there  was. 

Q.  To  use  all  the  room  you  can  get  there  ? 

A.  If  they  want  to  put  up  any  mills  there,  there  is  plenty  of 
chance  to  put  them  up. 

Q.  Plenty  of  room  ? 

A.  I should  say  so. 


8*30 


Case  or  Nancy  L.  Richmond. 


Cross-exam  ination . 

Q.  (By  Mr.  Butler.)  About  how  many  effective  horse-power 
in  practice  has  been  actually  used  there  for  some  years  past? 

A.  I don’t  suppose  that  they  have  actually  used  more  than  75 
or  80  horse-power,  — that  is,  if  you  put  a dynamometer  on  it  to 
test  it. 

Q.  How  long  have  those  wheels  been  running  in  this  condition? 

A.  The  two  Blake  wheels  were  first  put  in  in  1863  — fourteen 
years  ago. 

Q.  Before  or  after  Mr.  Richmond’s  death? 

A.  After. 

Q.  They  were  put  in  by  Charles  B.  Richmond  ? 

A.  Yes,  sir. 

Q.  The  late  husband  of  Mrs.  Richmond? 

A.  Yes,  sir. 

Q.  That  is,  after  he  had  bought  for  $9,500,  he  went  and  put  in 
the  two  Blake  wheels? 

A.  Yes,  sir. 

Q.  Charles  B.  Richmond  was  a practical  manufacturer,  was  he 
not? 

A.  I think  not ; he  paid  very  little  attention  to  it ; he  depended 
upon  his  foreman  principally. 

Q.  Have  they  any  steam  there? 

A.  No  steam-power.  They  have  steam  for  heating  and  drying. 

Q.  The  portion  of  those  works  that  are  usually  run  nights  has 
been  the  paper-mill,  I suppose? 

A.  Mostly. 

Q.  Whether  they  have  in  the  dry  time  used  up  all  their  power 
there? 

A.  Well,  I think  usually  they  run  them  all  the  time.  They 
have  usually  run  right  along. 

Q.  Has  there  not  usually  been  water  running  to  waste  when  the 
■water  is  running  over  the  dam  above,  or  the  wheels  are  going 
above  ? 

A.  Generally  there  has  been  water  running  to  waste. 

Q.  Over  Mrs.  Richmond’s  dam? 

A.  I think  so. 

Q.  (By  Commissioner  Francis.)  When  the  mills  have  been 
running  above,  there  has  been  water  running  to  waste  here? 

A.  Yes,  sir. 

Q.  (By  Mr.  Butler.)  Or  when  the  water  has  been  wasting 
over  the  Wamesit  dam,  which  is  the  same  thing? 

A.  Yes,  sir. 

Q.  Now  about  the  place  to  which  they  flow ; did  you  ever 
know  anything  about  the  bolt  in  the  rock,  as  between  the  Whip- 
ple privilege  and  the  other? 

A.  I don’t  think  I ever  did  — not  to  remember  it.  I have 
heard  of  it,  but  I don’t  know  as  I ever  saw  it. 

Q.  The  Richmond  dam  does  flow  up  upon  a portion  of  the 
wheels  of  the  Wamesit  dam? 

A.  I presume  it  does,  — that  is,  in  high  water. 


Testimony  of  Daniel  Coburn. 


861 


Q.  That  is  to  say,  as  you  understand,  the  privilege  would,  in  a 
considerable  rise  on  the  Richmond  dam,  be  felt  on  the  wheels,  more 
or  less,  of  the  Wamesit? 

A.  It  would,  if  they  were  old-fashioned  wheels,  and  the  water 
did  not  rise  above  as  much  as  it  rose  below. 

Q.  All  I want  to  get  is,  whether  the  height  to  which  the  dam 
could  be  raised,  or  the  right  to  raise  the  dam,  would  not  be 
affected  by  the  fact  that  raising  it  would  flow  upon  the  mill-wheels 
of  the  power  above  ? 

A.  Undoubtedly  it  would. 

Q.  Then  below,  the  Middlesex  dam  flows  up  on  to  the  Massie 
wheels,  does  it  not? 

A.  I think  it  does. 

, Q.  So  that  the  Massie  Falls  are  between  two  fires,  — they  cannot 
lower  their  wheels  on  the  one  side,  and  they  cannot  raise  their  dam 
on  the  other,  because  their  neighbors  interfere  with  them  if  they 
do? 

A.  That  is  the  way  it  is,  I suppose.  They  have  taken  up  all 
the  water-power  there  is  between  the  three  places.  I mean  all 
the  right  of  water-power  is  taken  up.  It  would  make  no  difference 
whether  it  was  one  horse-power  or  ten  thousand. 

Q.  My  associate  gets  a different  understanding  from  your  tes- 
timony from  what  I do.  Let  us  see  how  it  may  be.  I understand 
you  to  say,  that  $1,200  would  cover  the  cost  of  arranging  the 
flumes  and  water-seats  for  the  Blake  wheel  and  for  one  Whitney 
wheel ; that  $1,200  was  only  for  making  the  mill-seat  and  arranging 
the  flumes  and  raceways? 

A.  That  is  all. 

Q.  That  is  the  way  I understand  it.  In  addition  to  that,  there 
would  be  then  the  putting  in  of  the  wheel,  — whatever  wheel  you 
paid  for? 

A.  Yes,  sir. 

Q.  Then,  in  addition  to  that,  would  be  the  necessary  shafting,  I 
suppose,  to  carry  the  extra  amount  of  power  into  the  mills? 

A.  Yes,  sir.  Nothing  is  included  in  the  $1,200,  except  the 
stone  work. 

Q.  You  would  expect,  if  you  used  that  amount  of  power,  to 
build  new  mills? 

A.  Unless  you  had  something  very  heavy  to  drive. 


Re-direct. 

Q.  (By  Mr.  G.  F.  Richardson.)  I understand  you  to  state 
$3,000  as  the  cost  price  of  the  wheel  and  setting  both?  Was  I 
right? 

A.  After  the  pit  is  all  ready. 

Q.  So  that,  in  other  words,  that  $7,200  would  replace  the  two 
Blake  wheels? 

A.  Yes,  sir  ; it  would  give  you  two  other  wheels  in  place  of  the 
Blake  wheels.  $7,200  would  give  you  two  wheels,  with  100  to  108 
horse-power. 


862 


Case  of  Nancy  L.  Richmond. 


Be-cross. 

Q.  (By  Mr.  Butler.)  I asked  you  if  Mr.  C.  B.  Richmond  was 
a manufacturer,  and  you  thought  not? 

A.  You  said  u practical  manufacturer.”  He  understood  the 
business  of  buying  and  selling  and  taking  care  of  his  property. 

Q.  He  was  a careful,  shrewd  business  man,  was  he  not? 

A.  Yes,  sir  ; he  was  a good  manager. 

Q.  What  was  the  height  of  Massic  fall? 

A.  I always  reckoned  it  as  eight  feet.  There  are  others  that 
have  measured  it  better  than  I have.  I did  not  take  a survey.  It 
was  from  my  observation. 

Q.  How  many  years  ? 

A.  About  fourteen. 

Q.  How  much  of  that  time?  How  many  weeks  or  months? 

A.  I believe  I have  had  occasion  to  measure  it  three  times. 

Q.  Measure  it  yourself  ? 

A.  Yes,  sir. 

Q.  At  high  stages  of  the  water? 

A.  Yes,  sir  ; probably  at  high  stages  of  the  water. 

Q.  You  made  it  eight  feet? 

A.  Yes,  sir ; probably  sometimes  a little  above  and  sometimes 
below.  It  depends  upon  the  height  of  the  water  and  the  water 
flowing  back. 

Q.  You  measured  it  three  times? 

A.  Yes,  sir;  and  it  has  been  in  the  vicinity  of  eight  feet.  I 
would  take  my  old  figures  and  look  them  over  and  see  how  they 
would  compare.  I did  that  in  connection  with  work  on  the  wheels, 
calculating  the  speed  of  the  wheels  and  what  speed  would  be  re- 
quired for  use  of  the  machinery. 

Q.  Since  Charles  B.  Richmond’s  death  have  you  put  any  wheels 
in  there? 

A.  No,  sir. 

Q.  They  were  under  him  mostly,  or  some  of  them? 

A.  All  of  them. 

Mr.  D.  S.  Richardson.  The  consideration  given  to  the  guar- 
dian having  gone  in,  there  should  go  in  also  these  two  mortgages, 
which  existed  at  that  time,  and  which  I have  here  the  discharges 
of. 

Commissioner  Russell.  Do  they  go  to  change  the  consider- 
ation ? 

Mr.  D.  S.  Richardson.  Yes,  sir  ; the  consideration  is  assumed 
to  be  for  the  selling  of  one-half  of  the  estate.  He  sells  all  the 
right  that  he  has  for  $9,000.  Now  I show  that  at  that  time  there 
were  two  mortgages  amounting  to  $10,000,  which  Mr.  Richmond 
has  paid  since  the  conveyance.  He  sold  just  the  right  which  they 
had,  whatever  that  might  be.  This  conveyance  was  made  in  1863. 
These  mortgages  were  on  then,  and  were  paid  and  discharged  in 
1866.  The  estate  at  that  time  had  been  settled  ; and  the  right  at 
that  time  was  the  right  irrespective  of  those  mortgages.  Each 
one  of  them  is  for  $5,000,  making  $10,000;  and  the  discharges 
are  made  in  1866.  Since  that  time  both  of  the  discharges  were 
made  aud  recorded.  The  mortgages  were  paid  by  Mr.  Richmond. 


Testimony  or  E.  A.  Coffin. 


863 


Edward  A.  Coffin,  sworn . 

Q.  (By  Mr.  G.  F.  Richardson.)  You  reside  in  Lowell? 

A.  Yes,  sir. 

Q.  And  are  a relative  of  Mrs.  Richmond  by  marriage?  You 
married  her  daughter? 

A.  Yes,  sir. 

Q.  How  long  have  you  been  connected  with  these  paper-mills? 

A.  Since  December  1st,  1871. 

Q.  You  have  leased  the  mill  from  some  date,  have  you  not? 

A.  Since  Mr.  Richmond’s  death.  That  was  in  1873. 

Q.  When  did  Mr.  Richmond  die? 

A.  He  died  the  25th  of  August,  1873,  I think. 

Q.  And  since  1873  you  have  been  the  lessee  of  a part  of  this 
property  ? 

A.  Of  the  paper-mill  part. 

Q.  What  is  the  amount  of  rent? 

A.  Three  thousand  dollars  a year. 

Q.  How  much  land  do  you  have  with  that,  Mr.  Coffin  ? 

A.  I have  the  wooden  and  brick  mills  — forming  the  paper-mill 
property;  and  the  land  from  the  bridge  over  the  canal,  i.  e.,  the 
land  in  front  of  the  mills,  and  sufficient  room  outside  of  that  for 
storage  of  coal  and  wood. 

Q.  How  many  buildings  of  all  kinds  are  embraced  ? 

A.  Three,  — one  wooden  mill,  one  brick  mill,  and  one  stone 
boiler-house. 

Q.  You  make  paper,  do  you  not? 

A.  Yes,  sir. 

Q.  And  in  making  paper  it  is  necessary  that  you  should  run 
nights  as  well  as  daytimes? 

A.  Yes,  sir  ; all  paper-mills  do. 

Q.  Now,  how  much  power  do  you  use  in  your  works? 

A.  Well,  I get  at  my  power  merely  from  what  I judge  with  re- 
gard to  the  power  that  it  takes  to  drive  the  machinery  — from 
what  has  been  told  me  by  people  of  good  authority ; merely 
that. 

Mr.  Butler.  If  he  tells  us  which  wheels  he  uses,  then  we  know 
from  Mr.  Coburn,  don’t  we? 

The  Witness.  1 have  four  pulp  engines,  of  which  the  roll-bars 
are  twenty-six  inches ; and  it  takes  eight  horse-power  to  run  one 
of  those  ; making  thirty-two  horse-power  there.  Then  I have  one 
pulp-engine  of  thirty-six  inch  roll-bars,  which  it  takes  twelve  horse- 
power to  run.  When  I say  that  it  takes  twelve  horse-power  and 
eight  horse-power,  I merely  mean  that  I am  told  so  by  people  who 
run  that  machinery.  Then  I have  in  addition  to  that  a fan-pump, 
which  raises  the  water  to  a height  of  fifteen  feet,  and  that  ought  to 
take  five  horse-power.  I have  one  rag-cutter  and  one  rotary-boiler, 
and  a grindstone,  and  two  or  three  things,  — which  it  takes  about 
ten  horse-power  to  drive  — to  drive  the  extra  odd  machinery.  Ail 
these  things  are  driven  by  the  two  Blake  wheels  in  the  paper- 
mill. 


864 


Case  of  Nancy  L.  Richmond. 


Q.  You  don’t  have  any  other  wheel? 

A.  Yes,  sir ; one  other  wheel,  which  is  a Whitney  wheel,  which 
drives  the  paper-machine,  which  makes  the  paper,  and  which 
drives  the  pulp-stirrers.  All  that  machinery  was  in  the  first  place 
driven  by  the  two  Blake  wheels.  I have  I say  one  Whitney  wheel 
which  drives  the  paper-machine  and  the  stirrers  of  the  pulp-chests. 

Q.  How  much  power  for  that? 

A.  Well,  not  over  fifteen  horse-power. 

Q.  Now  part  of  the  premises  is  rented  to  somebody  else? 

A.  To  William  Walker  & Company. 

Q.  What  is  leased  to  him? 

A.  Two  mills,  — one  brick  mill  and  one  stone  mill-,  — having  in 
them  one  Blake  wheel  and  one  Whitney  wheel. 

Q.  What  is  the  rent  of  those  mills? 

A.  He  pays  $2,800  rent.  He  is  on  verbal  time  now.  His  lease 
expired  on  the  tenth  day  of  October.  He  is  simply  holding  over. 
The  old  lease  I have  at  home.  You  can  have  it  if  you  want  it. 

Mr.  Butler.  It  will  tell  more  exactly. 

Q.  How  much  power  does  he  have? 

A.  I think  he  is  guaranteed  by  his  lease  thirty  horse-power. 

Q.  What  does  he  manufacture? 

A.  He  manufactures  flannels,  tweeds  and  cassimeres. 

Q.  Can  you  tell  us  what  his  machinery  consists  of? 

A.  He  runs  what  is  called  a four-set  mill,  with  all  the  necessary 
appliances. 

Q.  Mr.  Coffin,  there  is  a place  there  where  there  was  formerly  a 
raceway,  that  Mr.  Coburn  referred  to,  and  which  could  be  altered 
into  a canal,  I suppose? 

A.  Yes,  sir. 

Q.  And  room  enough  within  the  enclosure  to  erect  any  number 
of  mills? 

A.  Plenty  of  room. 

Q.  Room  enough  to  run  all  the  power  you  could  get  there? 

A.  Yes,  sir. 

Q.  How  much  land  on  the  other  side? 

A.  There  is  half  an  acre. 

Q.  And  the  island  is  included  ? 

A.  Yes,  sir  ; the  island  belongs  to  the  property. 

Q.  Formerly  there  was  some  structure  on  the  island? 

A.  There  was  a mill  there,  I have  been  told.  It  has  not  been 
there  since  I have  been  there? 


Cross-examination. 

Q.  (By  Mr.  Butler.)  Mr.  Coffin,  do  you  think  your  rent  a fair 
one? 

A.  Yes,  sir  ; I think  it  is  fair  compared  to  other  paper-mills. 

Q.  Does  that  include  the  machinery? 

A.  Yes,  sir  ; it  includes  the  use  of  the  machinery. 

Q.  And  the  land  and  buildings? 

A.  Yes,  sir ; of  course  I make  the  repairs.  . 


Testimony  or  E.  A.  Coffin. 


865 


Q.  Does  Mr.  Walker  make  repairs? 

A.  Mr.  Walker  owns  all  the  machinery.  Mrs.  Richmond  only 
owns  the  water-wheels  and  main  lines  of  shafting  in  the  mills.  She 
also  owns  the  mills. 

Q.  How  many  buildings  have  water? 

A.  Two,  sir.  There  is  a stone  boiler-house  connected  with  the 
brick  mill,  which  he  built  himself,  to  put  a boiler  in  for  his  own 
use. 

Q.  His  lease  was  on  a term  of  years? 

A.  Yes,  sir. 

Q.  How  many  ? 

A.  Seven. 

Q.  That  was  made  by  Mr.  Richmond  ? 

A.  Yes,  sir;  that  was  made  by  Mr.  Richmond.  Mr.  Walker 
had  been  there  before  that,  but  the  last  lease  was  for  seven 
years. 

Q.  The  last  lease  which  expired  was  for  seven  years? 

A.  Yes,  sir. 

Q.  Now  how  large  is  that  brick  mill  ? 

A.  Well,  sir,  I never  measured  it,  and  I never  was  told  ; but  I 
should  think  it  was  50  feet  by  25. 

Q.  How  many  stories  high  ? 

A.  Three  stories,  and  an  attic  and  a basement. 

Q.  A well-built  mill? 

A.  Yes,  sir. 

Q.  Any  place  for  a counting-room? 

A.  No,  sir ; his  counting-room  is  connected  with  the  stone 
mill. 

Q.  How  large  is  the  other  mill  ? 

A.  The  stone  mill,  I think,  is  60  by  30. 

Q.  How  many  stories? 

A.  Two  stories,  a French  roof  and  a basement  on  the  back  side, 
making  a whole  story  on  the  back  side,  and  a basement  on  the 
front. 

Q.  What  should  you  say  would  be  the  fair  worth  of  that  stone 
mill? 

A.  Well,  sir,  I am  not  competent  to  say  at  all,  because  I never 
had  any  experience  in  building  property  of  that  kind  whatever.  I 
could  not  possibly  estimate  it. 

Q.  I suppose  you  can  make  me  the  same  answer  about  the  brick 
mill? 

A.  Yes,  sir  ; it  is  something  entirely  foreign  to  anything  that  I 
ever  had  anything  to  do  with. 

Q.  Is  your  lease  on  a term  of  years? 

A.  No,  sir  ; I hold  my  lease  from  one  year  to  another.  It  is 
renewed  }'early. 

Q.  Have  you  got  a written  lease? 

A.  No,  sir. 

Mr.  D.  S.  Richardson.  He  is  only  a tenant  at  will. 

Mr.  Butler.  I was  only  inquiring  to  see  if  the  title  would  be 
all  quiet  for  the  next  year. 

Q.  You  would  not  come  and  ask  us  for  damages? 


866 


Case  of  Nancy  L.  Richmond. 


A.  I have  no  right  to. 

Q.  Have  you  ever  known,  since  jtou  have  been  there,  reclama- 
tions made  on  the  Middlesex  Company,  or  payments  made  by  them 
for  throwing  out  your  wheel  ? 

A.  Yes,  sir ; the  Middlesex  people  bought  a right,  as  I under- 
stand it,  several  years  ago,  for  the  privilege  of  erecting  flash- 
boards  six  months  during  each  and  every  year,  for  one  hundred 
dollars,  from  the  first  day  of  June  to  the  first  day  of  December. 
I have  known  them  in  times  of  dry  weather,  either  before  the  first 
of  June  or  after  the  first  of  December,  to  pay  Mr.  Richmond  a cer- 
tain sum  per  day  for  the  privilege  of  retaining  the  flash-boards  on, 
or  putting  them  on  before  it  was  the  time  that  they  should  do  so. 

Q.  Flash-boards  put  on  when  the  pond  is  full  you  feel  pretty 
sensibly  on  your  wheel  ? 

A.  Yes,  sir  ; the  moment  they  are  put  on  it  flows  back  above  the 
apron  of  the  wheel. 

Q.  And  on  the  other  side  there  is  a bolt  fixed  between  Mr. 
Richmond  and  Mr.  Whipple,  in  a stone,  which  will  regulate  the 
height  of  the  flash-boards  there? 

A.  There  is  a letter  “ P,  ” sir,  on  the  rock  on  the  southerly 
side,  regulating  the  height  of  the  dam,  and  a cross,  regulating  the 
height  of  the  flash-boards  above  that. 

Q.  Why  should  it  be  a letter  “P”? 

A.  I cannot  tell  you  ; it  is  in  all  the  old  deeds.  It  is  from  some 
of  the  old  owners. 

Q.  Were  those  marks  both  ancient? 

A.  Yes,  sir ; they  have  always  been  there,  so  far  as  I know 
anything  about  it. 


Daniel  Coburn,  recalled.  — Cross-examination  resumed . 

Q.  (By  Mr.  Butler.)  You  told  us  you  were  conversant  with 
that  property  and  that  you  were  a mechanical  engineer  and  wrere 
familiar  with  putting  in  wheels,  and  all  that.  I want  to  get  your 
view  of  the  worth  of  those  mills.  We  will  commence  with  the 
Walker  stone  mill : what  would  be  a fair  cost  of  that  to  build  it  by 
the  day  ? 

A.  I have  never  looked  over  the  property  to  see  how  it  is  con- 
structed, I am  sure.  It  would  be  a delicate  matter,  unless  you 
looked  over  it  for  the  purpose  of  seeing  how  heavy  the  walls  are. 

Q.  Assume  that  they  are  well  built,  of  course.  They  were  buiit 
by  C.  B.  Richmond  ? 

A.  I think  the  stone  mill  was.  The  brick  mill,  I think,  was  built 
by  B.  O.  Richmond,  his  predecessor. 

Q.  Assume  that  they  were  properly  built  for  such  a building, 
give  an  approximate  estimate? 

A.  It  is  a matter  that  can  be  so  easily  estimated  by  looking  the 
property  over  that  I dislike  to  give  an  opinion  as  to  what  it  might 
be.  You  might  get  it  a third  more  or  a third  less. 

Q.  We  must  take,  then,  if  we  get  it  within  33  per  cent. 
I only  want  to  get  some  information.  Give  your  best  judg- 
ment. 


Testimony  of  Daniel  Coburn. 


867 


A.  Probably  about  $8,000  for  the  Walker  stone  mill — the 
building,  without  the  machinery. 

Mr.  D.  S.  Richardson.  We  don’t  own  the  machinery,  except 
the  main  shafting. 

Q.  How  much  would  it  cost  to  build  the  brick  mill  that  Mr. 
Walker  has  got? 

A.  Do  you  mean  to  take  that  clear  down  to  the  foundation,  or 
where  it  is  built? 

Q.  I mean,  supposing  it  was  not  there,  what  would  it  cost  to 
build  the  building? 

A.  Well,  that  would  be  something  less  I should  say,  but  not 
more  than  four  or  five  hundred  dollars  less ; we  will  call  it  $7,500. 
That  is  the  Walker  brick  mill.  I don’t  intend  to  include  any  of 
the  shafting  in  that  estimate,  nor  the  water-wheels. 

Q.  The  division  I make  in  my  own  mind,  is  “ water-wheel  and 
shafting,  and  the  way  to  get  the  power.”  Now  take  the  paper- 
mills.  I think  Mr.  Coffin  told  us  there  were  three,  mills.  Give 
them  in  your  own  way  and  tell  me  what  you  say  the  first  one  was 
worth  ? 

A.  Well,  the  engine-room  and  the  rotary  bleach  I should  in- 
clude all  in  one  mill.  I don’t  know  how  he  would  include  it. 

Q.  Weil,  put  it  so? 

A.  He  is  right  here  himself,  and  he  just  built  it.  He  ought  to 
answer  those  questions  by  the  book. 

Q.  I asked  him,  and  he  said  he  was  not  used  to  it  and  could  not 
tell.  I am  trying  to  get  at  a fair  valuation  of  the  property,  if  I 
can.  I don’t  want  you  to  inflate  it  on  the  one  side,  or  scrimp  it 
on  the  other ; but  give  a fair,  honest  valuation. 

A.  Well,  for  that  mill  itself,  I should  think  about  $8,000,  per- 
haps, would  do  it. 

Q.  How  in  regard  to  the  other  mill  connected  with  the  paper- 
mill? 

A.  Well,  I guess  $6,000  would  fix  that. 

Q.  Any  other  building  connected  with  the  paper-mill  ? 

A.  The  brick  chimney  for  making  the  steam  for  heat.  Prob- 
ably it  would  cost  $1,500  to  build  that  chimney.  Then  they  have 
a store-house  on  Lawrence  street. 

Q.  What  is  that  worth  ? 

A.  That  is  worth  $5,000. 

Q.  So  that  you  consider  about  twenty  thousand  five  hundred 
dollars  as  the  value  of  the  paper-mill,  or  what  we  call  the  paper- 
mill? 

A.  Yes,  sir. 

Q.  Do  you  know  anything  about  the  worth  of  the  paper  ma- 
chinery of  itself?  Give  me  your  opinion  of  what  the  machinery 
would  be  worth  as  it  is  in  that  mill,  for  making  paper? 

A.  Well,  one  of  those  small  engines  probably  could  be  built  for 
a thousand  dollars,  and  there  are  four  of  them  there ; and  a large 
engine  probably  would  cost  two  thousand  dollars. 

Q.  Now,  the  other  machinery? 

A.  It  depends  on  the  calender  rolls,  something  about  the  ma- 
chines — what  order  they  are  in.  I have  not  noticed  them  of  late. 


868 


Case  of  Nancy  L.  Eichmond. 


Q.  Assume  them  to  be  in  good  order  and  condition,  what  then? 

A.  For  the  paper  machines  $4,000  ; or  $4,500,  if  the  calender 
was  in  good  shape. 

Q.  Would  that  include  all  the  machinery  in  the  mill? 

A.  No,  sir ; it  would  not  include  the  shafting. 

Q.  I mean  for  you  to  leave  out  the  shafting  always. 

A.  That  leaves  out  the  shafting,  and  pulle}Ts,  and  belting. 

Q.  Does  that  include  the  boiler  and  the  heating? 

A.  No,  sir  ; that  does  not  touch  the  bleachers.  Those  bleachers 
can  be  built  for  about  $2,000.  That  includes  the  gearing  for  trying 
any  other  machinery  in  the  mill.  There  is  a kettle. 

Q.  What  it  that  worth  ? 

A.  Probably  three  hundred  dollars. 

Q.  Any  others  that  you  think  of? 

A.  I don’t  think  of  anything  else,  except  the  pulp-chest.  There 
is  an  agitator  inside  of  the  pulp-chest  that  keeps  the  pulp  stirred  up. 

Q.  Did  you  put  that  in,  in  addition? 

A.  Those  are  cheap  things.  The}'  more  properly  belong  to  the 
shafting  than  to  the  machinery. 


Re-direct . 

Q.  (By  Mr.  D.  S.  Richardson.)  This  does  not  include  the 
value  of  the  shafting,  you  say,  nor  the  water-wheel? 

A.  No,  sir ; nor  the  steam  boiler  for  heating  up.  That  I said 
nothing  about. 

Q.  (By  Mr.  Butler.)  Didn’t  you  include  the  steam  boiler? 

A.  No,  sir. 

Q.  (By  Mr.  D.  S.  Richardson.)  How  much  is  that  extra? 
What  is  that  worth  ? 

A.  I think  those  can  be  got  for  about  $1,200  now.  I am  not 
particularly  well  posted  as  to  the  size  of  it.  Probably  $1,200 
would  buy  boiler  and  pipe  and  apparatus.  Probably  $1,500  or 
$1,600  would  put  it  in  good  shape,  I think. 

Q.  (By  Mr.  G.  F.  Richardson.)  How  much  land  is  there  in 
the  island?  What  should  }’ou  say  the  contents  were? 

A.  I should  think  the  contents  would  be  in  the  vicinity  of  half 
an  acre. 

Q.  Now  on  the  side  of  the  river  where  the  works  are  — how 
much  land  should  you  think  there  was  there  in  all? 

A.  Well,  I should  think  there  would  be  two  acres  — perhaps  a 
hundred  thousand  feet.  It  is  a little  more  than  two  acres. 

Q.  There  is  vacant  land  on  each  side,  is  there  not? 

A.  Yes,  sir  ; I never  viewed  it  for  the  purpose  of  taking  the 
dimensions,  how  much  there  was. 

Q.  Didn’t  you  look  at  it  with  a view  to  seeing  where  you  could 
set  other  mills,  for  the  purpose  of  using  the  power? 

A.  Not  particularly.  I never  did. 

Q.  According  to  your  memory,  is  there  vacant  room  enough  to 
contain  mills  enough  to  use  all  the  power? 

A.  Yes,  sir  ; plenty  to  use  up  all  the  water-power  there  is  there. 


Testimony  of  Joseph  P.  Frizell. 


8(39 


Joseph  P.  Frizell,  sivorn. 

Q.  (By  Mr.  D.  S.  Richardson.)  Have  you  made  some  meas- 
urements of  the  Massic  dam  in  Lowell  — the  Massic  falls? 

A.  I have  made  measurements  of  the  dam. 

Q.  And  of  the  water? 

A.  Yes,  sir. 

Q.  Won’t  you  give  an  account  of  the  results  of  your  measure- 
ments of  the  water,  and  state  over  what  period  of  time  they 
extended  ? 

Mr.  Butler.  Have  you  not  had  all  that  in? 

Mr.  D.  S.  Rtciiardson.  No,  sir ; we  didn’t  have  in  the  items. 
You  put  in  the  results.  I understood  it  was  not  in  ; that  the 
result  was  that  of  a measurement  made  at  Massic  falls.  The 
result  gave  a minimum  constant  of  so  much.  The  paper  itself 
was  not  put  in. 

Commissioner  Russell.  I think  he  also  deducted  Meadow 
brook.  Whether  he  gave  us  Massic  falls  or  the  deduction  or  not, 
I don’t  know. 

Mr.  D.  S.  Richardson.  We  will  have  it  in. 

The  Witness.  The  figures  I gave  you  will  require  a little 
modification  for  Mrs.  Richmond’s  dam,  on  account  of  drawing 
nights  at  the  upper  dam. 

Q . Now  won’t  you  give  us  the  table  that  shows  the  modifi- 
cation ? 

A.  I can  give  j-ou  almost  anything  you  can  ask  for. 

Q.  Have  you  got  any  paper  made  up  that  showed  these  results, 
without  your  stopping  to  give  the  details  ? 

A.  No,  sir ; I have  not. 

Q.  I thought  we  had  a paper  from  which  we  took  the  measure- 
ments three  times  a day  of  the  water  from  the  dam  ? 

A.  I gave  it  to  you  from  these  results  in  my  hand  ; and  I gave 
you  what  I thought  would  be  the  quantity  to  be  depended  upon  at 
Massic  falls  and  Wamesit  dam. 

Q.  Give  in  your  own  way  the  results,  stating  over  what  period 
of  time  the  measurements  extended  ? 

A.  My  measurements  extended  from  the  24th  of  August  to  the 
25th  of  September,  including  part  of  each  of  the  outside  days. 

Q.  Now,  will  you  give  the  results  at  the  dam?  Did  you  make 
a measurement  of  River-meadow  brook? 

A.  Yes,  sir. 

Q.  So  as  to  separate  it  from  the  waters  that  came  down  Con- 
cord river? 

A.  Yes,  sir. 

Q.  Now,  won’t  you  give  the  results  that  you  came  to,  in  your 
own  way,  separating  the  water  of  Meadow  brook  from  the  other? 
What  result  did  you  find  ? 

A.  I believe  I said  that  the  quantity  that  could  be  depended 
upon  at  Wamesit  dam,  at  the  present  condition  of  things,  was  180 
cubic  feet  per  second,  assuming  that  the  diversion  has  already 
taken  place.  That  was  about  180  cubic  feet  per  second  while  the 


870 


Case  of  Nancy  L.  Richmond. 


mills  were  running  — for  the  running  time.  At  the  Massic  falls, 
we  get,  in  addition  to  that  — 

Q.  [Interrupting.]  Do  you  mean  that  that  computation  in- 
cluded the  water  that  would  have  been  supplied  by  the  Sudbury  or 
excluded  it? 

A.  Excluded  it. 

Q.  Now,  what  could  be  depended  upon  at  the  Massic  falls 
would  be  in  addition  — the  quantity  drawn  at  night  at  the  Wamesit 
darn,  and  the  quantity  passing  Hale’s  brook.  The  same  quantity 
could  be  depended  upon  at  the  Massic  falls? 

A.  Yes,  sir,  during  the  day,  and  also  a considerable  quantity 
during  the  night. 

Q.  How  do  you  fix  the  night  quantity,  and  why  ? 

A.  I have  got  the  quantity  that  was  passing  at  night  during 
each  of  the  several  days  that  my  measurements  occupied. 

Q.  Well,  how  much  would  that  give  you  — increase? 

A.  [After  referrring  to  calculations.]  There  was  passing  at 
night  at  that  time,  previous  to  the  heavy  rain,  all  the  way  from  55 
to  95  cubic  feet  per  second. 

Q.  That  is  the  water  passing  the  Wamesit  dam  at  night? 

A.  Yes,  sir.  That  was  at  Wamesit  dam.  The  quantity  passing 
Meadow  brook  at  the  different  times  I have  given. 

Q.  How  much  was  that?  Repeat  it  in  this  connection.  How 
could  you  get  55  to  95  cubic  cubic  feet  per  second?  You  merely 
find  so  much  water  coming  from  the  same  sources? 

A.  That  was  the  quantity  passing  Massic  falls  dam,  excluding 
what  came  from  Hale’s  brook  during  the  night.  The  Meadow 
brook  afforded  from  3 feet  up  to  as  much  as  18.  All  along  until  the 
18th  of  September  the  brook  afforded  from  6 or  7 down  to  3 cubic 
feet  per  second  — up  to  the  18th  day  of  September,  the  day  there 
was  a rain.  When  we  commenced  it  was  not  much  above  6 cubic 
feet  per  second.  By  the  18th  of  September  it  had  got  down  to 
not  much  over  3 cubic  feet  per  second.  It  had  gone  down  from 
the  time  we  commenced. 

Q.  What  was  it  during  the  rain?  The  rain  came  on  the  18th, 
and  you  finished  on  the  25th.  Won’t  you  give  it  — what  it  was 
during  that  time? 

Mr.  Butler.  All  that  is  in  at  great  length,  every  measurement, 
night  and  day. 

The  Witness.  It  went  up  to  about  18  feet. 

Mr.  Butler.  I have  got  it  in  my  memory  as  22  feet. 

The  Witness.  That  was  the  highest  quantity,  but  it  was  only 
for  a very  short  time.  I said  that  eighteen  cubic  feet  would  be 
about  the  average.  It  would  be  more  than  that.  The  highest 
average  for  any  day  would  be  nearly  30  cubic  feet.  That  was  the 
19th  of  September. 

Q.  The  highest  possible  was  32  for  any  day,  as  you  testified  to 
before,  or  substantially  that.  What  is  the  highest  of  all? 

A.  The  very  highest  figure  that  I perceive  here  is  at  9 o’clock 
on  the  18th  of  September  — 9 o’clock  in  the  afternoon.  That  is 
p »t  down  as  38.9  cubic  feet  per  second.  That  was  only  the  result 
of  one  observation. 


Testimony  of  Joseph  P.  Frizell. 


871 


Q.  Is  there  anything  further  in  connection  with  River-meadow 
brook  ? 

A.  You  can  form  some  idea  of  the  rapidity  with  which  the 
water  fell  off  after  the  rain. 

Q.  Will  you  give  that? 

A.  The  general  average  for  the  22d  of  September  would  be 
about  14  cubic  feet  per  second. 

Q.  How  was  the  25th?  The  25th  only  included  a part  of  the 
day. 

A.  On  the  24th  the  flow  was  affected  by  the  dam.  It  afforded 
from  12J  down  to  less  than  2 during  the  da}\  That  was  on  Sun- 
day. The  24th  was  Sunday. 

Q.  Is  there  a^^thing  farther  that  you  can  add  as  to  giving  River- 
meadow  brook  — anything  that  you  think  of? 

A.  I don’t  think  there  is. 

Q.  Now,  I think  we  had  something  of  the  same  confusion  be- 
fore as  to  including  and  excluding  the  diverted  water.  In  making 
your  estimate  of  180  cubic  feet  per  second  at  Wamesit  dam,  you 
excluded  the  water  that  has  been  diverted  from  the  Sudbury 
river.  You  didn’t  reckon  that  in  at  all? 

A.  No,  sir  ; I didn’t  count  that  in. 

Q.  Then  you  arrived  at  that  result  from  these  measurements 
made  at  the  Massic  falls,  taking  out  the  quantity  of  water  sup- 
plied by  River-meadow  brook,  did  you  ? 

A.  The  quantity  that  I gave  for  Wamesit  dam  excluded  the 
River-meadow  brook. 

Q.  (By  Mr.  Butler.)  The  River-meadow  brook  and  Sudbury 
river  ? 

A.  Yes,  sir. 

Q.  (By  Mr.  D.  S.  Richardson.)  Now,  I want  you  to  state 
what  was  the  quantity  of  water,  over  this  period  of  your  measure- 
ments, as  you  exactly  found  it  at  the  Massic  falls.  Give  the  re- 
sult as  to  Massic  falls  which  you  have  now  already  given  as  to  the 
Wamesit  dam.  How  much  was  that? 

A.  The  result  I gave  for  the  Wamesit  dam  is  the  quantity  that 
would  pass  Massic  falls  during  the  daytime  in  the  present  condi- 
tion of  things. 

Q.  That  is  180  cubic  feet? 

A.  Yes,  sir. 

Q.  I wish  it  at  River-meadow  brook,  taking  the  whole? 

A.  It  is  difficult  to  say  how  much  could  be  depended  upon  from 
River-meadow  brook,  not  knowing  the  way  in  which  the  water  is 
held  back. 

Q.  What  I ask  you  is,  whether  this  same  amount  that  you 
fixed  for  the  Wamesit  dam  would  be  the  same  for  the  Massic  dam, 
on  your  calculations  and  observations? 

A.  It  would ; and  you  would  have  the  water-shed  of  River- 
meadow  brook  in  addition  to  and  beside  that. 

Q.  Now,  will  you  make  an  approximate  estimate,  from  this 
period  of  measurement,  of  what  the  River-meadow  brook  would 
furnish,  or  what  it  did  furnish  during  that  time,  as  near  as  you  can  ? 

A.  I think  that  the  period  included  in  our  measurements  was 


872 


Case  . of  Nancy  L.  Richmond. 


rather  an  abnormal  one.  Mr.  Butler’s  mill  was  burned  and  under- 
going repairs.  The  water  was  not  held  back  as  it  would  have  been 
if  his  mill  had  been  running. 

Q.  You  mean  Mr.  Hale’s  old  mill,  don’t  you? 

A.  Yes,  sir;  up  to  the  Bleachery. 

Q.  The  water  was  not  held  back  there  at  that  time? 

A.  No,  sir. 

Q.  1 should  judge,  if  the  water  was  held  back  there,  that  there 
would  be  considerable  more  available  at  Massic  falls  for  use  dur- 
ing the  daytime.  Of  course  they  would  get  it  all  at  one  time  or 
another? 

A.  I should  say  at  Hale’s  brook  there  would  be,  to  be  depended 
upon,  between  three  and  four  cubic  feet  per  second,  at  all  times  of 
the  day  and  night. 

Q.  You  were  there  more  or  less  during  1861,  and  have  been 
there  since? 

A.  Yes,  sir. 

Q.  You  know  where  the  water  is  taken  by  the  new  plank  flumes? 
It  is  all  taken  b}^  a canal,  is  it? 

A.  Yes,  sir. 

Q.  Now,  is  there  any  place  there  where  another  canal  could  be 
built,  or  has  been  built?  Describe  its  condition  and  what  it  would 
cost  to  put  it  in  use. 

A.  It  appears  from  existing  walls  that  there  has  been  an  addi- 
tional canal  between  the  present  canal  and  the  river.  Undoubt- 
edly another  canal  could  be  put  in  there. 

Q.  How  much  would  it  cost  to  construct  that  canal?  Does  that 
go  to  the  dam  — does  the  head  of  it  go  to  the  dam  ? 

A.  Apparently  it  started  from  the  dam. 

Q.  Now,  did  you  make  some  observation  ; and,  if  so,  what  do 
you  think  it  could  be  put  there  for,  so  as  to  conduct  water  from 
the  top  to  the  bottom  of  the  falls? 

A.  I merely  looked  at  it.  It  would  be  ver}r  easy  to  put  in 
another  wheel  or  two  there.  It  would  not  be  expensive. 

Q.  Enough  to  furnish  how  much  power,  should  you  judge? 

A.  As  far  as  the  wheels  and  races  are  concerned,  it  might  fur- 
nish any  amount  of  power,  I think,  that  the  river  could  supply  — 
such  as  from  50  to  100  horse-power. 

Q.  What  would  be  the  expense  of  fitting  the  canal  and  putting 
in  a flume?  Did  you  have  some  idea  in  your  mind? 

A.  It  was  very  indistinct. 

Q.  How  much  should  you  say  ? 

A.  I should  say,  so  far  as  the  race  and  gates,  etc.,  are  con- 
cerned, that  it  might  be  done  for  $1,000,  in  the  same  manner  as  to 
permanenc}'  as  the  other  works  are  done. 

Q.  Whether  or  not  there  is  a place  excavated  or  made  at  the 
foot  of  the  falls  where  the  wheel  could  go  in  already  with  little 
alteration  ? 

A.  I should  think  there  would  be  very  little  extra  work  in  put- 
ting in  a wheel  there. 

Q.  Did  you  observe  whether  there  was  vacant  land  enough 
around  to  use  any  reasonable  amount  of  power  if  you  should  build 
a mill? 


Testimony  of  Joseph  P.  Frizell. 


873 


A.  Oh,  yes,  sir,  I should  think  there  was. 

Q.  Are  there  any  other  figures  that  are  of  importance,  that  you 
think  of  ? 

A.  I don’t  know  that  there  are. 

Q.  (By  Mr.  Shattuck.)  I should  like  to  ask  one  question 
to  save  recalling  Mr.  Frizell  in  the  next  case.  Here  is  a deed 
from  Warren,  Barry  and  Park  to  one  Eager,  bearing  date  January 
2d,  1832.  Have  you  examined  the  water  that  would  run  through 
that  aperture  of  two  and  one-half  inches  by  ten  described  in  that 
deed  ? 

A.  The  aperture  is  said  to  be  twenty-four  square  inches,  and 
it  is  also  said  to  be  ten  inches  wide  by  two  and  one-half  inches 
deep.  I stated  that  the  head  here  was  about  eight  feet.  Assum- 
ing that  to  be  the  fact  — 

Q.  [Interrupting.]  Do  }'ou  know  what  the  head  there  is? 

Mr.  Butler.  I object  to  the  question.  No  man  can  tell  how 
much  water  can  run  through  a hole  two  inches  by  ten  unless  he 
knows  how  much  the  pressure  is. 

Q.  Assuming  a certain  head,  the  question  is,  how  much  water 
will  run  through  a hole  of  certain  dimensions?  Will  you  state? 

A.  Assuming  the  head  to  be  eight  feet,  it  would  discharge  two 
and  one-fourth  cubic  feet  per  second. 

Q.  How  much  power  would  that  furnish  in  the  machinery  at  the 
fall  on  that  dam  ? State  about  how  many  horse-power. 

A.  With  a nine-foot  head  it  would  give  something  like  one  and 
three-quarters  horse-power,  with  ordinary  wheels. 

Q.  Do  you  know  what  the  head  is  on  that  dam  by  measurement? 
Did  you  examine  it? 

A.  I ascertained  ; yes,  sir.  I believe  I have  given  that. 

Mr.  Shattuck.  This  is  simply  for  the  other  case,  to  avoid 
recalling  the  witness. 

The  Witness.  Did  I give  the  fall  at  Mrs.  Richmond’s? 

Mr.  D.  S.  Richardson.  No,  sir,  you  did  not.  At  the  time  that 
you  measured  that  what  was  it? 

Mr.  Butler.  Are  you  not  satisfied  with  eight  feet? 

Mr.  D.  S.  Richardson.  Yes,  sir. 

A.  It  is  all  the  way  from  seven  and  one-quarter  to  eight  feet. 

Commissioner  Russell.  My  associates  suggest  that  this  wit- 
ness has  the  actual  flow  of  Concord  river  at  Massic  falls,  includ- 
ing River-meadow  brook,  for  a certain  period,  and  that  that  is 
not  in  this  case. 

Mr.  D.  S.  Richardson.  That  is  what  I was  afraid  was  not  in 
before  ; and  it  was  not  put  in.  I knew  there  was  difficulty  about 
that.  As  I understood  it,  when  I wanted  those  results  put  in, 
when  they  were  examining  him  before,  he  gave  certain  results 
from  those  measurements  which  were  here.  I had  a copy  of  that 
table  in  my  pocket,  and  there  were  some  used  by  the  other  coun- 
sel to  get  the  data  from  which  this  result  was  put  in.  Then  some- 
thing was  said  about  putting  that  in,  and  they  said  not  at  that 
time,”  and  it  was  postponed.  So,  as  I understood  it,  while  the 
result  he  gave  from  those  measurements  was  put  in,  the  measure- 
ments themselves  for  the  several  da}rs  durifig  that  time  were  not 
put  in.  They  subsided,  to  be  considered  hereafter. 


874 


Case  of  Nancy  L.  Richmond. 


Mr.  Butler.  I think  it  will  be  found,  if  you  will  allow  me  to 
cross-examine,  that  they  are  in. 

Commissioner  Russell.  Go  on  with  the  cross-examination,  and 
leave  that  matter  for  the  future. 


Cross-examination . 

Q.  (By  Mr.  Butler.)  Mr.  Frizell,  at  the  same  time  that  you 
were  measuring,  Mr.  Herschel  was  measuring,  was  he  not? 

A.  Yes,  sir. 

Q.  Have  you  examined  his  measurements  during  the  time  that 
you  were  examining? 

A.  Yes,  sir. 

Q.  Have  you  found  any  substantial  difference  between  his  meas- 
urements and  yours? 

A.  No  substantial  difference.  There  was  a little  difference. 

Q.  Anything  more  than  any  two  measurers  would  make? 

A.  Probably  not  — by  using  different  methods  of  ascertaining 
the  depth  on  the  weir. 

Q.  You  only  measured  one  side  of  the  dam  — the  running  of 
the  water  from  one  part  of  the  dam? 

A.  I supposed  I got  the  amount  of  the  water  throughout  the 
whole  length  of  the  dam. 

Q.  Did  you  make  it  more  or  less  than  he  did  ? 

A.  I think  I made  it  somewhat  more. 

Q.  You  didn’t  measure  at  the  other  end  of  the  dam  which  was 
acting  as  a weir.  You  didn’t  measure  at  that  end  at  all,  did  you? 

A.  I measured  the  height  of  the  surface  of  the  water  at  a point 
above  the  dam,  where  it  was  substantially  still  and  unaffected  by 
the  discharge,  and  that  applied  to  the  whole  length  of  the  dam. 

Q.  You  measured  upon  one  side,  and  assumed  the  height  of  the 
dam  at  that  side  to  be  the  level  of  the  dam  clear  across  ? 

A.  I took  the  level  of  the  dam  clear  across  several  times. 

Q.  Was  there  any  substantial  difference  after  all? 

A.  During  the  lowest  period  I think  that  we  differed  three  or  four 
cubic  feet. 

Q.  In  how  long? 

A.  Three  or  four  cubic  feet  per  second.  That  was  about  the 
average  difference,  I judge,  as  far  as  I can  give  it  from  memory. 

Q.  Very  well.  Otherwise  the  tables  are  correct,  so  far  as  }rou 
know? 

A.  Yes,  sir. 

Q.  Now,  Mr.  Frizell,  I desire  that  you  will  do  this  for  me : 
take  from  the  24th  of  August  to  the  24th  of  September,  inclusive. 
It  will  give  us  thirty-one  days,  will  it  not? 

A.  Yes,  sir.  The  measurements  terminated  on  the  25th  of 
September. 

Q.  It  will  give  you  thirty-one  days,  clean,  which  will  be  to  the 
twenty-fourth,  inclusive ; and  make  a table  showing  the  actual 
amount  of  water  running  during  the  twenty-four  hours  over 
Massic  falls  ; also  show  the  amount  of  water  running  in  River- 
meadow  brook  in  twenty-four  hours  — the  average  of  those  thirty- 


Testimony  of  Joseph  P.  Frizell. 


875 


one  days  — each  twenty-four  hours  separate.  For  each  day  there 
is  an  average,  and  so  much  running  over  Massic  falls,  and  so 
much  running  over  River-meadow  brook.  That  will  give  the 
whole  amount,  will  it  not,  of  what  was  coming  down  from  the 
Concord  ? 

A.  Yes,  sir. 

Q.  Please  make  me  a table,  first  showing  the  average  amount 
of  water  per  second  flowing  over  the  Massic  clam,  by  your 
measurement,  the  average  for  each  twenty-four  hours  flowing 
over  the  dam  from  August  24th  to  September  24th,  inclusive. 
Also  give  the  amount  flowing  during  that  time  on  the  same  days 
at  River-meadow  brook.  Put  those  in  separate  columns.  Then 
in  another  column  put  the  amount,  as  taken  from  our  measure- 
ments of  the  Sudbury  river,  of  the  amount  diverted  during  that 
time.  Then  in  another  column  give  us  what  the  amount  of  the 
aggregate  of  the  two  would  be,  i.  e.,  the  water  flowing  over  the 
dam  at  Massic  falls,  deducting  River-meadow  brook  and  adding 
Sudbury  river,  as  found  by  our  measurement,  allowing  three  days 
for  the  water  to  come  down. 

Mr.  D.  S.  Richardson.  And  I should  like  on  that  table  some 
memorandum  that  the  water  of  the  Sudbury  is  represented  as 
coming  three  days  afterward,  so  that  the  table  itself  will  show  it. 

Mr.  Butler.  Understand  me.  I mean  the  amount  diverted  by 
us,  because  some  days  we  could  not  divert  the  whole  of  it. 

Q.  (By  Mr.  Butler.)  Do  you  understand  what  I want? 

A.  I believe  so.  Yes,  sir. 

Q.  What  I desire  is,  to  get  the  actual  amount  diverted  during 
that  time  by  taking  the  water  of  Sudbury  river  — the  actual 
amount  flowing  at  that  time  — deducting  the  amount  of  River- 
meaclow  brook. 

A.  Yes,  sir.  I think  I understand  it. 

Q.  Now,  then,  will  you  give  us  what  the  amount  of  effective 
horse-power  will  be  that  180  feet  per  second  will  give  over  an 
8-feet  fall  ? 

A.  I can  give  you  an  approximation.  [Makes  calculation.]  i 

Mr.  Butler.  You  can  give  us  the  effective  amount,  and  then 
we  will  take  twenty-five  per  cent,  from  it,  or  whatever  you  think 
ought  to  be  deducted. 

The  Witness.  [After  making  calculation.]  It  would  not  be 
far  from  120  effective  horse-power. 

Q.  (By  Commissioner  Francis.)  That  does  not  include,  then, 
the  Meadow  brook? 

A.  No,  sir  ; that  is  simply  180  cubic  feet  per  second. 

Mr.  Butler.  To  make  this  table  still  more  valuable  which  I 
ask  you  to  prepare,  will  you  give,  in  another  column,  after 
having  ascertained  the  flow  of  Concord  river  in  the  way  I have 
indicated — will  you  give  the  amount  of  horse-power  each  day  that 
they  would  have  over  an  eight-feet  fall  at  the  Massic  falls? 

Q.  (By  Mr.  Shattuck.)  I should  like  to  ask  you  one  question 
only  : whether  the  fact  that  on  any  particular  day  there  might  be 
one-tenth  as  much  water  flowing  in  the  Sudbury  river  as  there  i3  in 
the  Concord  river,  at  Wamesit  dam  would  be  of  any  substantial 


876 


Case  of  Nancy  L.  Richmond. 


value  in  determining  the  proportions  which  are  furnished  during 
the  year,  over  the  Wamesit  dam? 

A.  I should  think  not. 

Q.  (By  Mr.  D.  S.  Richardson.)  I want  to  ask  you  how  many 
times  in  the  day  you  made  a record  of  these  measurements  ? 

A.  Three  times  in  two  hours,  — thirty-six  times  a day. 

Q.  Would  you  make  any  table  of  measurements  that  would  be 
of  any  benefit  here,  — the  table  made  out  of  the  different  measure- 
ments, would  that  be  of  any  use? 

A.  It  would  help  give  you  the  facts. 

Q.  You  made  such  a table,  didn’t  you? 

A.  I don’t  think  I did. 

Q.  Didn’t  you  give  Mr.  Storey  one,  with  this  data,  taken  three 
times  a day? 

[No  answer.] 

Mr.  D.  S.  Richardson.  That  Storey  matter  goes  with  that 
paper.  It  may  meet  our  wants  as  furnishing  a table  of  those 
measurements. 

Q.  Could  you  make  a table  of  your  observations,  giving  sub- 
stantially the  whole? 

A.  I could  put  the  facts  contained  in  this  table  into  a more 
accessible  form,  so  that  it  could  be  printed  with  these  papers. 

Q.  Will  you  please  to  do  it? 

A.  Yes,  sir. 

Q.  How  long  would  it  take  you,  sir? 

A.  Oh,  the  work  that  is  laid  out  might  occupy  me  for  a day  or 
two. 

Mr.  Butler.  I think  the  table  I have  already  asked  of  him  will 
give  everything. 

Q.  (By.  Mr.  Butler.)  I want  to  ask  another  question  now 
upon  another  subject ; Assume  that  you  knew  precisely  how  much 
water  ran  in  the  Sudbury  river  for  three  months,  and  that  you 
knew  precisely  how  much  water  ran  in  the  Concord  river  during 
those  same  three  months,  would  not  the  knowledge,  — while  the 
amount  of  water  shown  which  you  know  runs  in  the  Sudbury  river, 
might  not  show  with  accuracy  how  much  would  run  in  other  years 
during  the  same  months,  — whether  you,  as  an  engineer,  believe, 
use,  and  act  upon  that  knowledge  of  the  amount  of  water  running 
in  the  Sudbury  river,  as  the  very  best  criterion  of  how  much  it  fur- 
nished to  Concord  river  in  that  time? 

A.  It  would  certainly  be  conclusive  as  to  the  aggregate  contri- 
bution of  Sudbury  river.  But  }Tou  could  not  assume  that  the 
water  furnished  by  the  Sudbury  river  reached  Massic  dam  within 
three  days,  or  within  ten  days. 

Q.  What  I want  to  get  at  is,  whether  the  knowing  for  three 
months  the  exact  amount  of  Sudbury  river,  and  knowing  the 
amount  running  in  the  Concord  river,  would  not  be  the  very 
best  means  attainable  by  an  engineer  for  getting  at  the  amount  of 
water  in  the  aggregate  which  the  Sudbury  river  furnishes  to  tl  e 
Concord  ? 

A.  Yes,  sir,  as  an  aggregate. 

Mr.  D.  S.  Richardson.  That  is  asking  him  whether  twice  two 
are  four. 


Testimony  of  Joseph  P.  Frizell. 


877 


Q.  Now  then,  sir,  having  that  in  a given  year,  — a measure- 
ment in  a given  year  of  the  exact  amount  of  water  which  flows  in 
the  Sudbury  river  during  three  months  of  the  dry  season,  — and 
having  the  average  of  the  rainfall  at  the  nearest  point  to  Sud- 
bury river  during  that  time,  won’t  a calculation  for  a series  of 
years  of  the  rainfall  at  the  same  place,  taken  in  connection  with 
the  amount  so  ascertained  of  the  waters  of  the  Sudbury  river,  be 
a very  valuable  means  of  ascertaining  the  aggregate  amount  of 
water  which  flows  into  the  Concord  from  the  Sudbury  during  the 
years  in  which  you  calculate  the  rainfall  for  the  same  months? 

A.  Assume  that  you  have  measured^  the  Sudbury  for  three 
months  in  one  year,  you  have  measured  the  Concord  also,  and 
you  have  got  records  of  the  rainfall  for  that  year  and  a series  of 
years  in  the  basin  of  the  Sudbury  and  of  the  Concord,  now  you 
want  to  know  if  that  would  be  a reliable  means  of  predicting  the 
flow  ? 

Q.  The  contribution  of  the  Sudbury  to  the  Concord  for  any  of 
the  series  of  years,  for  the  same  months  for  which  we  have  the 
rainfall  ? 

A.  It  would  certainly  be  very  valuable  in  that  point  of  view. 

Q.  Is  it  not  the  best  thing  you  can  have? 

A.  I think  that  it  is  — the  best  you  could  obtain  in  the  period 
you  are  speaking  about. 

Q.  (By  Mr.  Shattuck.)  Take  the  amount  of  the  contribution 
by  the  Sudbury  river  to  the  Concord  as  of  course  the  amount 
that  flows  from  the  Sudbury  into  the  Concord  ; you  so  understand  it? 

Mr.  Butler.  I object  to  this  examination  at  this  time.  Brother 
Shattuck  put  in  as  much  as  he  chose  about  the  value  of  this 
method  of  measuring  it,  and  stopped  ; I then  cross-examined  upon 
that  question,  as  to  the  value  of  that  method  of  measurement,  and 
I stopped. 

Mr.  Shattuck.  I beg  your  pardon,  I think  you  did  not. 

Mr.  Butler.  Now,  if  my  brother  goes  on  again,  I must  go  on 
again,  and  so  on  ad  infinitum,  I am  approaching  old  age  and  I 
want  to  finish  this  case  before  I die. 

Commissioner  Russell.  It  is  a little  difficult  to  say  when  either 
side  stopped  upon  this  question.  If  Gen.  Butler  says  he  stopped 
this  morning,  it  seems  to  me  he  began  also  this  morning. 

Mr.  Butler.  I mean  that  I cross-examined  upon  their  re-ex- 
amination, and  that  is  the  limit. 

Commissioner  Russell.  I think  the  question  as  to  one  day  is 
so  different  from  that  in  regard  to  three  months,  that  it  can 
hardly  be  considered  the  same. 

Q.  (By  Mr.  Shattuck.)  Whether  the  value  of  the  contribution 
of  the  Sadbury  river  at  Wamesit  dam  does  not  depend  rather 
upon  the  average  of  its  whole  contribution  during  any  period,  than 
upon  the  contributions  for  any  particular  day,  in  your  judgment? 
That  is  the  point. 

A.  It  certainly  depends  upon  the  average  contribution  — upon 
the  average  contribution  that  appears  at  the  Wamesit  dam. 

Q.  Then  if  you  were  to  determine  the  value  of  the  Sudbury 
river  contribution  to  the  Wamesit  dam,  would  not  the  better  way 


878 


Case  of  Nancy  L.  Richmond. 


be  to  take  the  whole  average  contribution  of  the  Sudbury  river, 
and  distribute  it  over  the  whole  period?  I don’t  mean  to  say 
absolutely,  but  in  general  terms  — distribute  it  over  the  whole 
period  rather  than  to  take  the  contributions  for  any  specific  day. 

A.  Well,  the  contribution,  particularly  when  the  Sudbury  is  very 
high  — the  contribution  of  one  day  does  distribute  itself  over  a 
great  number  of  days  in  the  Concord. 

Q.  (By  Mr.  Butler.)  Now,  would  you  not  in  three  months’ 
observation  of  the  dry  time  get  a fair  effect  of  the  average  flow  of 
the  Sudbury  into  the  ConcoTd  ? 

A.  It  would  depend  ver}"  much  upon  the  rains  that  would  occur 
immediately  before  the  commencement  of  your  three  months’ 
observation. 

Q.  It  will  depend  upon  the  rain  just  before? 

A.  If  heavy  rains  had  occurred  not  long  before  the  commence- 
ment of  your  three  months,  it  might  affect  the  result  very 
much. 

Q.  But  you  would  ascertain  in  the  course  of  three  months  what 
that  effect  was,  and  bring  it  down  to  an  average,  would  you  not? 

A.  Yes,  sir  ; you  would  ascertain  that  effect. 

Q.  You  think,  do  }tou  not  (to  illustrate  this),  that  you  have  got 
substantially  what  the  average  flow  of  River-meadow  brook  will 
contribute  to  the  Massic  dam  ? You  have  got  that,  have  you  not, 
so  that  you  can  give  it  to  us  in  such  a way  that  we  can  rely 
upon  it? 

A.  No,  sir ; not  jret.  I have  got  the  average  flow.  I have 
given  what  you  would  call  the  minimum  flow  pretty  accurately. 

Q.  Do  you  mean  by  the  low-water  flow,  the  low  water  at  the 
dryest  day,  or  the  low-water  flow  for  the  month  ? 

A.  What  might  be  called  the  low- water  stage  of  the  brook. 

Q.  And  you  think  3^011  have  got  it  accurately  enough  to  give  an 
opinion,  b}r  thirty^  days’  examination? 

A.  I stated  so  in  that  case. 

Q.  Although  for  a portion  of  the  thirty  da)rs  it  afforded  from 
three  to  thirty-six  feet? 

A.  Yes,  sir. 

Q.  Very  well,  then.  Will  3tou  tell  me  why  the  flow  of  the  Sud- 
bury river  could  not  be  got  as  accurately  during  the  dry  stage  of 
the  river,  by  the  three  months'  measurement?  # 

A.  If  3Tou  are  speaking  of  the  flow  at  the  city  dam  at  Fram- 
ingham — 

Q.  [Interrupting.]  Yes,  sir  ; I am  speaking  of  the  flow  at  the 
city  dam.  Let  us  come  right  to  that.  Is  there  any  reason  wh)r 
three  months  of  actual  measurement  will  not  give  3Tou  the  actual 
flow  of  Sudbury  river  during  those  three  months,  at  Massic  dam? 

A.  None  at  all ; i.  e.,  you  could  get  it  just  as  accurately  at 
Framingham  dam  as  }tou  could  at  Meadow  brook. 

Q.  Three  months  would  be  as  valuable  as  one  ? 

A.  Yes,  sir. 

Q.  Now,  then,  having  got  the  amount  which  would  flow  into 
the  Concord  at  the  city  dam,  can  3*011  tell  any  reason  why  that 
will  go  down  there  in  one  year  more  than  another,  in  the  dry  sea- 
son of  the  year  ? 


Testimony  of  Daniel  Cobuen. 


879 


A.  No,  sir. 

Q.  Go  down  to  the  Wamesit  dam  in  one  year  more  or  less  than 
in  another? 

A.  No,  sir;  I don’t  know  that  there  is  any  reason. 

Q.  I will  not  trouble  you  any  farther. 

A.  It  will  all  get  there  sometime. 


Daniel  Coburn,  recalled. 

Q.  (By  Mr.  G.  F.  Richardson.)  I thought  there  might  be 
some  confusion  in  getting  at  the  amount  of  horse-power  furnished 
at  the  various  wheels,  from  the  fact  that  it  was  put  in  by  percent- 
age. Now,  I want  you  to  give  us  the  actual  power  that  can  be 
furnished  by  each  wheel  just  as  they  are,  so  as  to  prevent  any 
possible  confusion  by  reason  of  the  rated  power.  The  first  Blake 
wheel  you  called  how  much  power? 

A.  Fifteen  horse-power. 

Q.  The  second  how  much? 

A.  Eleven  and  twenty-two  one-hundredths. 

Q.  Third,  the  Whitney  wheel? 

A.  Ten  horse-power. 

Q.  Then  the  two  Blake  wheels  — how  much  horse-power  each? 

A.  Well,  I should  think  by  the  machinery  they  were  driving, 
that  there  ought  to  be  thirty  horse-power  each. 

Mr.  G.  F.  Richardson.  That  makes  96.22. 

Mr.  D.  S.  Richardson.  I have  nothing  further  in  the  way  of 
evidence,  except  that  I should  like  to  have  this  table  put  in,  in 
some  form,  which  we  used  in  the  examination  before,  when  the 
results  were  given.  Perhaps  it  will  give  what  is  required.  If  it 
does  not,  I should  like  Mr.  Frizell  to  furnish  that  table  after  he 
has  furnished  the  one  asked  for  by  Gen.  Butler. 

Mr.  Butler.  I have  nothing  in  the  Richmond  case.  We  put 
in  our  measurements  in  the  Massic  dam  before. 

Mr.  Shattuck.  The  table  which  we  proposed  to  put  in  by  Mr. 
Frizell  is  this.  It  has  just  been  brought'by  Mr.  Storey.  It  is  the 
quantity  of  water  furnished  at  the  Massic  dam  in  1866.  The  first 
claim  is  the  average  during  the  day.  The  second  claim  is  the 
average  while  the  mills  were  running;  and  the  third  claim  is  the 
average  while  the  mills  were  not  running.  That  gives  those  three 
tables.  This  one  which  is  marked  “ J.  P.  F.  3,”  applies  to  Wame- 
sit dam. 

[Mr.  Shattuck  puts  in  the  table  prepared  by  Mr.  Frizell, 
marked  “ J.  P.  F.  3,”  and  calls  upon  Mr.  Frizell  to  testify  in 
regard  to  it.] 


Joseph  P.  Frizell,  recalled. 

Q.  (By  Mr.  Shattuck.)  Were  those  tables  prepared  by  you? 
A.  Yes,  sir ; they  are  what  they  purport  to  be  by  the  descrip- 
tion given  upon  the  tables  themselves,  — the  headings  and  cap- 
tions. 


880 


Case  of  Nancy  L.  Richmond. 


Q.  (By  Mr.  Butler.)  What  has  been  torn  off  that'*sheet  in 
the  corner  where  I indicate? 

A.  I don’t  know.  I did  not  tear  an}ffhing  off  of  it. 

Q.  What  was  on  it  before  it  was  torn  off? 

A.  I don’t  know.  I don’t  know  that  there  was  anything  there. 
There  is  paper  torn  off. 

Q.  It  is  torn  off  in  the  “ Remarks”  column? 

A.  I don’t  know  anything  about  it.  I did  not  tear  it  off. 

Q.  Don’t  you  believe  there  was  something  on  that  piece  that  is 
gone? 

A.  I don’t  remember  anything. 

Q.  You  don’t  remember  whether  there  was  or  not? 

A.  I don’t  think  there  was  anything.  It  might  have  been 
headed  there  “ Remarks.” 

Q.  I know  it  might  have  been  headed  something.  That  is  no 
the  point.  Was  that  paper  whole  when  you  prepared  it? 

Mr.  Shattuck.  I tore  it  off. 

Mr.  Butler.  I wish  you  would  produce  the  piece. 

Mr.  Shattuck.  It  was  a private  memorandum  that  I did  not 
care  to  put  in. 

Mr.  Butler.  Was  it  made  by  Mr.  Frizell? 

Mr.  Shattuck.  Yes,  sir,  it  was. 

Q.  (By  Mr.  Butler.).  What  was  that  memorandum,  Mr. 
Frizell  ? 

A.  I have  not  the  slightest  idea. 

Mr.  Shattuck.  I don’t  know  that  I am  under  any  obligation  to 
put  it  in. 

Mr.  Butler.  I have  no  question  about  your  obligations.  I 
only  want  the  facts. 

Q.  Can’t  you  tell  what  that  was,  Mr.  Frizell? 

A.  I cannot  at  present. 

Q.  Let  me  see  if  I can’t  find  out.  Did  you  make  two  copies  of 
this? 

A.  I think  there  were  two  or  three  made. 

Q.  Given  to  each  of  the  counsel? 

Mr.  D.  S.  Richardson.  I have  no  copy  of  my  own. 

A.  Not  to  my  remembrance. 

Q . Whom  did  you  give  them  to? 

A.  I recollect  giving  two  to  Mr.  Store}'.  I left  one  at  his 
office. 

Q.  Two  to  Mr.  Storey  and  one  to  Mr.  Shattuck? 

A.  I have  no  distinct  recollection  about  giving  one  to  Mr.  Shat- 
tuck ; but  I think  I did. 

Mr.  Shattuck.  If  this  were  before  a jury,  I should  state  ex- 
actly why  this  was  torn  off;  but  I don’t  propose  at  present  to  do 
so.  Y"ou  will  probably  get  it  by  and  b}r,  General,  if  }rou  want 
it,  and  the  reason  why  it  was  torn  off. 

Mr.  Butler.  I object  to  the  statement. 

Q.  Now,  we  will  take  the  first  day,  Tuesday,  August  2-lth. 
Under  the  head  of  “Average  during  the  da}r,”  is  that  the  exact 
average  that  your  measurements  show  ran  over  Massic  dam  ? 

A.  I think  it  purports  to  be. 


Testimony  of  J.  P.  Frizell. 


881 


Q.  Look  and  see.  Let  us  see  your  profile? 

A.  I did  not  have  any  profile.  [Referring  to  table,  and  read- 
ing.] “ Thursda}^  August  24th.”  That  included  part  of  the  day 
only. 

Q.  What  measurement  have  you  of  the  amount  that  ran  over 
August  24th, — that  shows  171.54? 

A.  The  average  of  the  time  that  it  was  observed  during  the 
day  ? 

Q.  Take  any  figure  of  your  measurements  and  make  out  that 
average  if  you  can. 

A.  There  are  a great  number  of  results. 

Q.  There  cannot  be  a great  number  of  results  in  that  day,  — 
only  thirty-six ; and  if  you  only  averaged  a part  of  the  day  there 
will  be  less. 

A.  The  average  of  the  results  observed  for  that  day  was  171.54 
cubic  feet  per  second.  We  commenced  at  10.45,  and  went  to  mid- 
night. 

Q.  Average  while  the  mills  were  running? 

A.  That  I had  235.64. 

Q.  Have  you  any  measurements  to  show  for  any  more  than  half 
of  the  day  while  the  mill  was  running? 

A . It  shows  from  10.45  until  the  mill  stopped. 

Q.  “ Average  while  the  mills  were  not  running  ”? 

A.  That  was  94.5. 

Q.  Did  you  have  any  measurements  for  that  average? 

A.  Yes,  sir  ; from  the  time  the  mill  stopped  until  midnight. 

Q Then  you  did  have  measurements  for  the  time  the  mills 
stopped?  Did  you  make  any  allowance  for  dinner? 

A.  I did  not. 

Q.  Then  will  your  tables  here  show  these  measurements  each 
da}-  in  the  same  way,  — the  average  results? 

A.  They  show  from  midnight  to  midnight. 

Q.  From  midnight  to  midnight  by  actual  measurement? 

A.  Yes,  sir. 

Q.  Or  what  actually  went  over  the  dam? 

A.  Yes,  sir ; what  actually  went  over  the  dam,  excluding  Hale’s 
' brook. 

Q . How  much  went  over  at  Hale’s  brook  on  the  24th  of 
August? 

A.  The  average  is  not  given  here. 

Q.  Where  do  you  have  that  average,  — so  that  I can  make  the 
subtraction  or  addition  ? 

A.  The  subtraction  is  made  for  each  measurement,  thirty-six 
times  a da}^.  The  average  of  Hale’s  brook  does  not  appear  in  the 
records 

Mr.  Butler.  I believe  that  is  all,  sir.  I wanted  merely  to  get 
at  the  accuracy  of  these  calculations. 

Mr.  Shattuck.  Are  you  through  with  the  Massic,  General? 

Mr.  Butler.  Yes,  sir. 


882 


Belvidere  Mills. 


BELYIDERE  WOOLLEN  MANUFACTURING  COM- 
PANY NO.  2,  PETITIONERS, 
vs. 

THE  CITY  OF  BOSTON. 

To  the  Honorable  the  Justices  of  the  Superior  Court  within  and  for  the 
County  of  Middlesex : — 

Respectfully  represents  your  petitioner,  the  Belvidere  Woollen 
Manufacturing  Company,  a corporation  under  the  laws  of  the  Common- 
wealth of  Massachusetts,  doing  business  in  Lowell,  in  said  County  and 
Commonwealth,  that  it  is  now,  and  for  three  years  last  past,  and 
longer,  has  been  the  owner  in  fee-simple,  and  seized  and  possessed  of 
certain  large  parcels  of  land  in  said  Lowell,  more  particularly  described 
in  the  deeds,  copies  of  which  are  hereto  annexed,  and  marked 
respectively  “B.” 

2.  And  your  petitioner  further  represents,  that  it  is  now,  and  for  the 
said  three  years  last  past,  and  longer,  has  been  the  owner,  and  in  the 
possession  and  enjoyment  of  a very  valuable  right,  privilege  and  ease- 
ment connected  with  the  use  of  said  land  to  take  water  from  the  Con- 
cord river,  in  said  Commonwealth,  through  a canal  now,  or  formerly, 
of  Oliver  M.  Whipple,  of  said  Lowell,  lying  southerly  of  your  peti- 
tioner’s said  land,  to  an  amount  equal  to,  but  not  exceeding,  twenty-seven 
cubic  feet  per  second  for  eleven  and  one-quarter  hours  per  day  for  six 
days  of  the  week,  except  when  the  water  in  said  canal  does  not  equal 
two  hundred  and  eighty-eight  cubic  feet  per  second  during  the  time 
aforesaid,  and  then  and  at  such  times  to  an  amount  equal  to,  but  not 
exceeding,  three  thirty-seconds  of  the  quantity  of  water  in  said  canal, 
and  the  water  in  said  canal  has  always  equalled,  and  would  always 
equal,  except  in  very  unusual  and  rare  instances,  two  hundred  and 
eight-eight  cubic  feet  per  second  but  for  the  taking,  withdrawal, 
diversion,  and  obstruction  of  the  same,  hereinafter  set  forth. 

3.  And  your  petitioner  further  represents,  that  it  now  is,  and  for  the 
said  three  years  last  past,  and  longer,  has  been  the  owner  of  a large 
mill  or  factory  situated  upon  said  land,  and  containing  a large  number  of 
sets  of  costly  machinery,  each  adapted  to,  and  used  for,  the  manu- 
facture of  flannels,  which  said  mill  or  factory  and  sets  of  machinery 
were  all  erected  at  a great  cost  for  the  purpose  of  using  the  afore- 
said right,  privilege  and  easement  to  take  water ; and,  together  with 
said  property  and  land,  are  wholly  dependent  for  their  value  upon  the 
said  water,  which  your  petitioner  has  the  right  to  take,  as  aforesaid, 
by  which  alone  said  mill  or  factory  and  machinery  can  be  used. 

3 a.  And  your  petitioner  for  three  years  last  past  has  owned,  and 
still  owns,  certain  other  land  and  real  estate  in  said  Lowell,  situated  on 
said  Concord  river,  and  wholly  dependent  (in  like  manner,  as  herein- 
before alleged,  as  to  the  land  herein  first  described)  for  its  use  and 
value  on  the  water-rights  and  privileges  hereinbelow  set  forth.  And 
your  petitioner  for  three  years  last  past  has  owned,  and  still  owns,  the 
right,  privilege  and  easement  of  taking  eighteen  twenty-fourths  of  the 
surplus  water  of  said  Concord  river  at  the  dam  of  the  Middlesex  Com- 
pany, in  said  Lowell,  over  and  above  the  amount  which  the  Middlesex 
Company  is  entitled  to  take  at  said  dam.  And  your  petitioner  for  three 
years  last  past  has  been,  and  still  is,  lessee  of  the  right  to  take  three 
other  and  additional  twenty-fourths  of  said  surplus  water.  And  your 
petitioner  has  erected  and  owns  a certain  other  mill  similar  to 
that  hereinbefore  described,  and  containing  similar  machinery,  and 


Petition. 


883 


other  buildings,  all  said  mill  and  buildings  being  on  said  land  on  Con- 
cord river,  and  all  are  dependent  for  their  use  and  value  on  the  above- 
mentioned  water-rights  in  like  manner,  as  the  mill  hereinbefore 
described  is  dependent  on  the  water-rights  hereinbefore  described. 
And  the  said  eighteen  twenty-fourths  and  three  twenty-fourths  of  said 
surplus  water  in  this  paragraph  mentioned,  were,  and  always  would 
be,  sufficient  for  the  use  of  said  mill  but  for  the  taking,  withdrawal, 
diversion  and  obstruction  hereinafter  set  forth. 

4.  And  your  petitioner  further  represents,  that  Sudbury  river,  so 
called,  in  said  Commonwealth,  is  one  of  the  natural  sources  and  tribu- 
taries of  said  Concord  river,  and  the  waters  thereof  are  the  principal 
means  of  supply  of  said  Concord  river,  and  that  the  waters  of  said 
Sudbury  river,  when  undisturbed  and  unobstructed,  and  left  to  the'r 
natural  course  and  current,  flow  into  said  Concord  river  above  said 
lands  and  mills  or  factories  of  your  petitioner,  and  with  the  waters  of 
said  Concord  river  have  been  accustomed  to,  and  of  right  ought  to,  flow 
through  the  canal  aforesaid,  and  to  pass  by  and  through  the  said  lands 
and  mills  or  factories,  and  furnish  the  water-power  on  said  property, 
lands,  mills  or  factories  and  machinery  are  dependent  for  their  use  and 
value  as  aforesaid.  And  your  petitioner  is  entitled  to  have  its  said 
share,  viz. : twenty-seven  cubic  feet  per  second  of  the  waters  in 
said  canal,  and  its  share  in  said  surplus,  unabated.  And  your  peti- 
tioner, if  deprived  of  the  right  to  the  waters  of  said  Sudbury  river, 
flowing  as  aforesaid,  would  lose  substantially  the  whole  of  its  said 
rights,  privileges,  and  easements  in  the  waters  of  the  said  Concord 
river,  and  in  said  canal,  and  the  value  of  its  said  property,  lands,  mills, 
or  factories,  and  machinery  would  be  greatly  reduced. 

5.  And  your  petitioner  further  represents,  that  under,  by  virtue  of, 
in  accordance  with,  and  for  the  purposes  of,  an  act  of  the  Legislature  of 
the  Commonwealth  of  Massachusetts,  passed  on  the  eighth  day  of  April, 
A.  D.  1872,  entitled  “An  act  to  authorize  the  City  of  Boston  to  obtain 
an  additional  supply  of  pure  Water,”  and  by  and  through  the  agency 
ordained  by  said  act,  the  City  of  Boston,  in  the  County  of  Suffolk,  in 
said  Commonwealth,  within  three  years  last  past,  previous  to  the  filing 
of  this  petition,  has  taken  all  the  water  of  said  Sudbury  river  at  and 
above  the  dam  built  by  the  City  of  Boston  in  1872,  five  hundred  feet, 
more  or  less,  below  the  crossing  of  the  said  Sudbury  river  by  the 
Boston,  Clinton  & Fitchburg  Railroad,  in  the  Town  of  Framingham, 
in  the  County  of  Middlesex,  and  near  the  brook  which  is  the  outlet 
from  Farm  pond  into  said  river,  and  all  the  water  in  the  said  dam  to 
the  source  or  sources  of  said  river ; also  all  the  water  in  Farm  pond,  so 
called,  in  said  Town  of  Framingham,  and  all  the  water  in  the  brook 
connecting  Farm  pond  with  Sudbury  river ; also  all  the  water  in  all 
streams,  brooks,  and  rivulets,  or  water-courses  of  any  kind,  whether 
natural  or  artificial,  that  may  flow  into  or  from  said  Farm  pond,  and 
into  or  from  said  Sudbury  river  at  any  point  or  points  above  said  dam, 
subject  to  the  restrictions  set  forth  in  section  4 of  chapter  177  of  the 
Laws  of  1872  with  reference  to  said  water.  To  have  and  to  hold  the  said 
waters  to  the  said  City  of  Boston,  and  its  successors  and  assigns,  to  its 
and  their  sole  use  and  behoof,  agreeably  to  the  provisions  of  said  act  of 
the  year  eighteen  hundred  and  seventy-two.  And  the  said  city  has 
taken  the  whole  right,  title,  and  interest  in  said  waters,  and  has  become 
the  sole  and  absolute  owner  of  the  same,  subject  to  the  restrictions 
aforesaid.  And  by  and  as  a part  of  the  aforesaid  taking,  the  said  city 
has  taken,  and  your  petitioner  has  been  deprived  of  substantially  the 
whole  of  its  said  rights,  privileges,  and  easements  to  take  water  from 
said  Concord  river,  and  the  value  of  its  said  property,  lands,  mills,  or 
factories,  and  machinery  has  been  greatly  reduced. 

6.  And  your  petitioner  further  says,  that  said  City  of  Boston,  by  the 
authority  and  agency,  and  for  the  purposes  hereinbefore  set  forth,  and 


884 


Belvidere  Mills. 


within  three  years  last  past  from  the  day  of  the  date  of  this  petition,  has 
first  actually  withdrawn,  diverted,  and  obstructed,  and  has  ever  since 
continued,  and  still  continues  and  intends  henceforth  to  withdraw, 
divert,  and  obstruct  the  waters  of  said  Sudbury  river  and  said  other 
waters  in  the  fifth  paragraph  of  this  petition  described  from,  and  in 
what  has  always  been  heretofore,  and  what  would  have  always  been 
hereafter,  their  natural  and  accustomed  flow  into  and  through  said 
Concord  river,  and  by,  through,  and  over  the  aforesaid  lands  and  mills, 
or  factories  of  your  petitioner.  All  of  which  past,  present,  and  intended 
withdrawals,  diversions  and  obstructions  are  against  the  rights  of  your 
petitioner,  and  have  deprived,  and  will  henceforth  deprive,  your 
petitioner  of  the  water-power  to  which  it  is  entitled,  as  aforesaid; 
and  have  greatly  diminished,  and  will  henceforth  greatly  diminish,  or 
destroy,  the  value  of  your  petitioner’s  rights  in  the  same,  and  in 
the  said  property,  lands,  mills,  or  factories,  and  machinery. 

7.  And  your  petitioner  further  represents,  that  by  reason  of  said 
taking  of  the  waters  of  said  Sudbury  river  and  the  other  waters  afore- 
said, and  by  reason  of  said  past,  present,  and  intended  withdrawals, 
diversions,  and  obstructions,  and  by  reason  of  all  the  acts,  matters,  and 
things  of  said  City  of  Boston,  and  its  agents,  hereinbefore  set  forth, 
your  petitioner  has  suffered  great  damage  in  its  property ; and  that  it 
has  not  agreed,  and  has  not  been  able  to  agree,  with  the  said  City  of 
Boston  upon  the  damages  to  be  paid  therefor ; and  that  said  city  has 
not  offered  to  pay  it,  as  such  damages,  any  sum  whatever 

Wherefore  your  petitioner  (not  waiving  any  right  to  take  advantage 
by  petition  for  a writ  of  certiorari  or  otherwise  of  the  great  and  mani- 
fold errors  and  irregularities  in  the  aforesaid  acts  and  proceedings,  but 
expressly  reserving  the  right  so  to  do)  prays  for  the  assessment  of  the 
damages  by  it  sustained,  as  aforesaid,  and  for  such  other  relief  as  your 
petitioner  may  be  entitled  to  have  in  this  Court,  and  for  a summons  to 
said  City  of  Boston  conformably  to  the  statutes  in  such  case  made  and 
provided. 

BELVIDERE  WOOLLEN  MANUFACTURING  CO., 

By  EZRA  FARNSWORTH,  its  Treasurer. 
SHATTUCK,  HOLMES  & MUNROE, 

Attorneys,  and  of  Counsel. 


“B.” 

Know  all  men  by  these  Presents,  That  I,  Charles  Stott,  of  Lowell,  in 
the  County  of  Middlesex  and  Commonwealth  of  Massachusetts,  in  con- 
sideration of  seven  thousand  dollars  to  me  paid  b}7  the  Belvidere  Wool- 
len Manufacturing  Company,  a body  corporate  duly  established  by  the 
laws  of  said  Commonwealth,  the  receipt  whereof  is  hereby  acknowl- 
edged, do  hereby  give,  grant,  bargain,  sell  and  convey  unto  the  said 
Belvidere  Woollen  Manufacturing  Company,  their  successors  and  as- 
signs, a certain  parcel  of  land,  situate  in  said  Lowell,  and  thus  bounded 
and  described,  viz. : Beginning  at  a charred  stake  at  the  southeasterly 
corner  of  the  premises,  ten  feet  westerly  of  the  line  of  Lawrence  street, 
as  the  well  now  stands  ; thence  north  eighty-eight  degrees  thirty  min- 
utes west,  one  hundred  and  ninety-seven  and  six-tenths  feet  to  a charred 
stake  at  a point  ten  feet  easterly  of  the  present  line  of  Whipple  street; 
thence  northwesterly  parallel  with  the  easterly  line  of  Whipple  street, 
and  ten  feet  distant  "therefrom,  one  hundred  and  eighty-seven  feet  to  a 
charred  stake  at  the  southerly  side  of  River-meadow  brook ; thence 
along  the  southerly  side  of  said  brook  north  seventy  degrees  forty-five 
minutes  east,  two  hundred  and  fifty-three  and  seventy-five-hundredths 


Petition. 


885 


feet  to  a charred  stake,  ten  feet  westerly  from  the  westerly  side  of 
Lawrence  street,  as  the  wall  now  stands  ; thence  southerly  parallel  with 
said  Lawrence  street,  as  the  wall  now  stands,  and  ten  feet  distant  there- 
from, two  hundred  and  fifty-four  feet,  more  or  less,  to  the  point  of 
beginning.  Also,  all  my  right,  title,  and  interest  in  and  to  the  ten-feet 
strip  between  the  easterly  line  of  the  premises  and  Lawrence  street,  as 
the  wall  now  stands.  Also,  it  is  understood  that  the  ten-feet  strip  between 
the  westerly  line  of  the  premises  and  Whipple  street  shall  hereafter  be 
included  in  and  be  a part  of  said  Whipple  street.  Also,  that  the  strip 
of  land  between  the  southerly  line  of  the  premises  and  the  canal  shall 
be  forever  kept  open  and  unobstructed.  an»l  the  grantees,  their  succes- 
sors and  assigns,  may  pass  upon  and  over  the  same,  but  so  as  to  cause 
no  obstruction  or  hindrance  to  the  use  of  the  same  by  parties  having 
a right  therein.  Also,  the  right,  privilege  and  easement  to  take  water 
by  means  of  the  canal,  now  or  formerly  of  Oliver  M.  Whipple,  lying 
southerly  of  the  premises  and  by  means  of  head  raceways  to  enter  the 
canal  at  any  point  opposite  to  the  premises  and  to  conduct  the  water  to 
the  premises  to  be  used  thereon,  and  to  discharge  the  same  into  said 
brook,  and  such  raceways  to  be  put  in  in  such  a manner  as  in  no  wise 
to  injure  or  weaken  the  bank  of  the  canal  or  interrupt  the  flow  of  water 
therein,  and  no  right,  title  or  interest  in  or  to  said  brook  is  given,  ex- 
cept to  discharge  the  water  therein.  Also  the  right  for  said  water  to 
enter  the  canal  from  Concord  river,  to  the  extent  hereinafter  mentioned. 
And  the  right  forever  hereafter  to  have  the  said  canal,  and  the  banks 
thereof,  and  the  permanent  dam  across  the  river,  now  or  formerly  be- 
longing to  said  Whipple,  continue  for  the  purpose  of  affording  a water- 
power,  and  to  the  extent  and  with  the  exceptions  and  reservations 
herein  contained  and  set  forth.  The  quantity  of  water  which  may  be 
drawn  from  the  canal  by  the  grantees,  their  successors  and  assigns,  is 
strictly  limited  to  and  shall  not  exceed  twenty-seven  cubic  feet  per  sec- 
ond of  eleven  and  one-quarter  hours  per  day  of  six  days  of  the  week, 
and  if  at  any  time  the  quantity  of  water  in  the  canal  shall  not  equal 
two  hundred  and  eighty-eight  cubic  feet  per  second  during  the  time 
aforesaid,  then  the  grantees,  their  successors  and  assigns  shall,  during 
such  time,  be  restricted  to  three  thirty-seconds  (3-32)  of  the  quantity  of 
water  in  the  canal,  meaning  that  the  quantity  of  water  which  may  be 
drawn  from  the  canal  by  the  grantees,  their  successors  and  assigns, 
shall  never  at  any  time  exceed  twenty-seven  cubic  feet  per  second  for 
the  above  specified  time,  however  great  may  be  the  supply  of  water 
from  said  canal,  and  that  the  quantity  of  water  shall  be  restricted  to 
such  an  amount  less  than  twenty->even  cubic  feet  per  second  during  the 
time  aforesaid,  as  shall  be  equal  to  three  thirty-seconds  (3-32)  of  the 
supply  afforded  from  the  canal,  when  the  whole  water  therein  shall  be 
less  than  two  hundred  and  eighty-eight  cubic  feet  per  second  for  said 
time.  Also  the  right,  privilege  and  easement  of  passing  and  repassing 
with  cars  over  the  railroad  leading  from  the  Boston  and  Lowell  and 
Lowell  and  Lawrence  railroads  at  Whipple  station  to  the  premises,  and 
over  land  now  or  formerly  of  said  Whipple,  as  the  railroad  is  now 
located,  or  as  it  may  be  located  hereafter  by  said  Whipple,  or  by  the 
proprietors  of  the  several  rights  or  grants  now  made,  or  which  may  be 
made  by  said  Whipple,  or  by  his  heirs  or  assigns.  But  this  right  is  to 
be  used  and  enjoyed  in  common  with  other  grants  made  by  the  said 
Whipple,  or  which  may  be  made,  and  in  common  with  said  Whipple, 
his  heirs  and  assigns.  Nor  shall  he  or  they  be  under  any  obligation  to 
maintain  said  railroad ; meaning  hereby  to  grant  the  right  to  use  the 
present  railroad,  in  common  with  others,  so  long  as  the  same  may  be 
continued ; with  a right,  in  common  with  others,  of  building  a track 
and  using  and  maintaining  the  same  as  aforesaid,  and  subject  to  the 
rights  of  the  Boston  and  Lowell,  and  Lowell  and  Lawrence,  and  Salem 
and  Lowell  railroad  companies,  and  subject  to  such  changes  in  the 


886 


Belvidere  Mills. 


direction  and  location  of  the  track  as  said  Whipple,  his  heirs  and  as- 
signs, may  reasonably  demand.  Also  all  the  rights,  privileges,  ease- 
ments and  covenants  contained  in  a deed  from  Oliver  M.  Whipple  to 
me,  dated  November  16th,  A.D.  1860,  and  recorded  in  North  District 
Middlesex  Registry,  Nov.  22,  1860,  book  26.  page  216  (subject  to  the 
reservations  and  conditions  therein  contained),  and  all  my  right,  title 
and  interest  in  and  to  the  premises  therein  contained  and  described,  to 
which  deed  and  the  record  thereof  reference  may  be  had  for  a more 
full  and  accurate  description.  To  have  and  to  hold  the  said  conveyed 
premises,  with  the  privileges  and  appurtenances  thereto  belonging,  to 
the  said  Belvidere  Woollen  Manufacturing  Company,  their  successors 
and  assigns,  forever  in  fee-simple.  And  I,  the  said  Charles  Stott,  for 
myself,  my  heirs,  executors  and  administrators,  do  covenant  with  the 
said  Belvidere  Woollen  Manufacturing  Company,  their  successors  and 
assigns,  that  the  premises  are  free  from  all  incumbrances  made  or  suf- 
fered by  me,  except  the  mortgage  named  below,  and  that  I will,  and 
my  heirs,  executors  and  administrators  shall,  warrant  and  defend  the 
same  to  the  said  Belvidere  Woollen  Manufacturing  Company,  their  suc- 
cessors and  assigns  forever,  against  the  lawful  claims  and  demands  of 
all  persons  claiming  under  me,  except  the  “City  Institution  for 
Savings”  at  said  Lowell,  who  hold  a mortgage  on  said  premises,  dated 
on  the  sixteenth  day  of  November,  A.D.  1860,  and  recorded  in  book 
26,  page  220,  of  the  North  District  Middlesex  Registry  of  Deeds,  which 
mortgage  and  the  notes  thereby  secured  the  grantees  are  to  assume, 
pay,  cancel,  and  discharge,  as  part  of  the  consideration  of  this  deed, 
and  save  the  said  Stott,  his  heirs,  executors  and  administrators,  harm- 
less therefrom.  In  witness  whereof,  I,  the  said  Charles  Stott,  together 
with  Sarah,  wife  of  said  Charles  Stott,  who  hereby  releases  all  claim 
to  dower  in  the  aforesaid  premises,  have  hereunto  set  our  hands  and 
seals  this  day  of  December,  in  the  year  of  our  Lord 

eighteen  hundred  and  sixty-two.  Charles  Stott  (seal),  Sarah  Stott 
£seal).  Witness:  George  F.  Richardson  to  C.  S.,  John  Stott  to  Mrs. 


Middlesex,  ss.  December  26,  1862. 

Then  personally  appeared  the  aforesaid  Charles  Stott  and  acknowl- 
edged the  foregoing  instrument  to  be  his  free  act  and  deed,  before  me, 

GEORGE  F.  RICHARDSON, 
Justice  of  the  Peace. 

Middlesex,  ss.,  North  District.  Recorded  Dec.  30,  1862. 

A.  B.  WRIGHT,  Register. 


Know  all  men  by  these  Presents , That  I,  Charles 
Stott,  of  Lowell,  in  the  County  of  Middlesex  and 
Commonwealth  of  Massachusetts,  in  consideration  of  two  thousand  six 
hundred  and  sixty-nine  dollars  and  twenty-five  cents,  to  me  paid  by  the 
Belvidere  Woollen  Manufacturing  Company,  a body  corporate  duly  es- 
tablished by  law  in  said  Lowell,  the  receipt  whereof  is  hereby  ac- 
knowledged, do  hereby  give,  grant,  bargain,  sell  and  convey  unto  the  said 
Belvidere  Woollen  Manufacturing  Company,  their  successors  and  assigns 
forever,  a certain  piece  or  parcel  of  land  situate  in  said  Lowell,  on  the 
westerly  side  of  Fayette  street,  with  the  buildings  thereon,  thus  bounded, 
viz. : Beginning  at  the  northeast  corner  of  the  premises,  at  the  corner 
of  Fayette  and  Fond  streets ; thence  northerly  on  Fayette  street  to  the 
board  fence  dividing  the  premises  from  the  premises  occupied  by  Eras- 
tus  Stearns ; thence  westerly  on  said  board  fence  about  sixty-six  feet ; 
thence  southerly  along  the  west  face  of  the  bank  wall  about  sixty-eight 
feet  to  said  Pond  street;  thence  easterly  on  said  Fond  street  sixty-six 
feet,  or  thereabouts,  to  the  point  begun  at ; being  the  same  premises  to 


I S'.  00  U.  S It-  V.  Stamp. 
Cancelled. 


Petition. 


887 


me  conveyed  by  Alden  B.  Richardson  by  deed  dated  August  6th,  A.D. 
1868,  and  recorded  in  Registry  of  Deeds  at  Lowell,  book  63,  page  277, 
subject  to  the  restrictions  and  rights  if  any  in  said  deed  contained.  To 
have  and  to  hold  the  above-granted  premises,  with  all  the  privileges 
and  appurtenances  to  the  same  belonging,  to  the  said  Belvidere  Wool- 
len Manufacturing  Company,  their  successors  and  assigns,  to  them  and 
their  use  and  behoof  forever ; and  I,  the  said  grantor,  for  myself  and 
my  heirs,  executors  and  administrators,  do  covenant  with  the  said 
grantees  and  their  successors  and  assigns,  that  I am  lawfully  seized  in 
fee-simple  of  the  afore-granted  premises,  that  they  are  free  from  all  in- 
cumbrances, that  I have  good  right  to  sell  and  convey  the  same  to  the 
said  grantees  and  their  successors  and  assigns  forever,  as  aforesaid ; 
and  that  I will,  and  my  heirs,  executors  and  administrators  shall,  war- 
rant and  defend  the  same  to  the  said  grantees  and  their  successors  and 
assigns  forever,  against  the  lawful  claims  and  demands  of  all  persons. 
In  witness  whereof,  we,  the  said  Charles  Stott  and  Sarah  Stott,  wife  of 
said  Charles  Stott,  in  token  of  her  release  of  all  right  and  title  of  or 
to  both  dower  and  homestead  in  the  granted  premises,  have  hereunto 
set  our  hands  and  seals,  this  thirteenth  day  of  January,  in  the  year  of 
our  Lord,  eighteen  hundred  and  sixty-nine.  Charles  Stott  (seal), 
Sarah  Stott  (seal).  Signed,  sealed  and  delivered  in  presence  of  John 
Davis,  John  Stott. 

Commonwealth  of  Massachusetts,  Middlesex,  ss.,  Jan.  14, 1869. 

Then  personally  appeared  the  within  named  Charles  Stott,  and  ac- 
knowledged the  foregoing  instrument  to  be  his  free  act  and  deed, 
before  me.  JOHN  DAVIS, 

Justice  of  the  Peace. 

Middlesex,  ss.,  North  District.  Recorded  March  27th,  1869. 

I.  W.  BEARD,  Register. 

Lowell,  Jan.  23,  1875. 

I hereby  certify  the  within  to  be  true  copies  of  the  records  of  deeds 
recorded  in  North  Middlesex  Registry  of  Deeds. 

Attest : J.  O.  THOMPSON,  Register. 


The  answer  of  City  of  Boston  same  as  in  case  of  Sterling  Mills. 


Mr.  Shattuck.  The  Belvidere  Woollen  Manufacturing 
Company  No.  2,  own,  first,  a mill  on  the  Wamesit  dam, 
which  was  shown  the  other  day.  [Explains  the  boundaries.] 
It  is  admitted  by  General  Butler  that  the  deeds  of  these 
mills  (Parker,  Wilder  & Company)  were  destroyed  in  the 
great  fire  ; and  we  therefore  put  in  an  office  copy.  The  deed 
which  they  hold  is  a deed  from  Mr.  Stott  to  the  Belvidere 
Woollen  Manufacturing  Company.  There  are  two  of  them, 
and  they  are  exactly  alike. 

This  is  a deed  from  Mr.  Stott  to  the  Belvidere  Woollen 
Manufacturing  Company,  set  forth  in  the  petition ; and  the 
original  office  copy  is  •annexed  to  the  petition  for  shortness. 
It  is  dated  December,  1862,  but  the  day  of  December  is  left 
blank;  and  that  deed  seems  to  have  been  confirmed  by 
another,  which  has  the  same  description  exactly,  dated  the 


888 


Belvidere  Mills. 


30th  of  January,  1869  ; but  it  is  immaterial  to  put  them  both 
in.  I suppose  the  other  deed  is  valid.  It  is  a conveyance 
of  the  land  bounded  and  described  as  follows : [Reads 

boundaries  and  the  deed.]  This  is  an  office  copy  of  the 
deed.  This  is  from  Mr.  Stott  to  the  Belvidere  Manufactur- 
ing Company.  Mr.  Stott  is  one  of  the  members  of  the 
company.  I don’t  know  that  the  consideration  is  of  any 
importance. 

Then  as  to  the  other  mill,  the  title  is  much  more  compli- 
cated. This  is  called  Belvidere  No.  2. 

In  the  petition  it  was  alleged  that  we  hold  of  the  sur- 
plus water  in  Concord  river,  after  the  Middlesex  has  taken 
what  it  is  entitled  to,  as  we  have  shown.  They  actually 
owned  t¥o  _ of  the  water  in  Concord  river.  That  is 
more.  And  I may  as  well  give  the  history  of  this 
title  now,  in  order  to  make  it  plain.  In  1821,  Thomas 
Hurd  owned  the  land  at  this  place,  on  both  sides  of 
the  Concord  river.  On  the  31st  day  of  May,  1821,  he  con- 
veyed all  the  land  on  the  east  side  of  the  Concord  river  to 
Winthrop  Howe;  and  by  indenture,  of  the  same  date,  he 
made  an  agreement  by  which  Mr.  Howe,  on  the  east  side, 
became  entitled  to  all  the  water-rights  in  Concord  river  at 
that  place,  subject  to  the  right  to  maintain  and  use  the  water 
to  carry  three  breast-wheels  and  a fulling-mill.  The  lan- 
guage will  be  given  exactly.  By  sundry  mesne  conveyances 
and  by  deed  of  D.  T.  Curtis  to  Warren,  Barry  & Park, 
made  on  the  6th  of  September,  1831,  a part  of  the  land  on 
the  east  side  of  Concord  river  was  conveyed  to  him ; and  by 
deed  dated  January  2d,  1832,  H.  G.  Howe,  the  grantee  of  Win- 
throp Howe,  conveyed  the  other  part  of  the  land,  bounded 
on  the  east  side  of  the  Concord  river,  to  Warren,  Barry  & 
Park.  Under  these  conveyances,  on  the  second  day  of  Jan- 
uary, 1832,  Warren,  Barry  & Park  had  all  the  water-rights 
on  the  east  side  of  the  Concord  river,  which  were  granted 
by  Hurd  to  Winthrop  Howe,  — of  course  the  rights  were  sub- 
ject to  the  Middlesex  right,  as  we  call  it  now,  or  the  Hurd 
right.  Warren,  Barry  & Park  laid  out  the  land  on  a plan 
which  is  recorded  in  the  Registry  of  Deeds,  and  referred  to  ; 
and  of  that  this  is  a copy.  [Showing  copy.]  The  same  day 
that  Warren,  Barry  & Park  acquired  the  title,  they  conveyed 
a lot  to  William  Eager,  and  conveyed  to  him  a right  to  draw 
water  through  an  aperture  ten  inches  in  width  by  2J  inches 
in  height,  which  Mr.  Frizell  has  testified  would  carry 
about  2 1 cubic  feet  water  per  second. • I propose  to  put  this 
plan  in.  It  is  copied  from  the  Registry  copy,  and  it  was 
dated  November,  1831,  — made  by  Alexander  Wadsworth. 
That  was  the  first  conveyance  ; and  we  have  that  under 


Testimony  of  Henry  Parioian. 


889 


mesne  conveyances,  as  I shall  show  you,  — that  Eager 
title. 

Next,  on  the  first  of  March,  1832,  these  same  parties  con- 
veyed to  James  Stewart  ^ of  thef  water.  The  only  descrip- 
tion of  the  water  by  measurement  was  that  made  for  Mr. 
Eager.  After  that  he  described  it  by  twenty-fifths.  The  third 
conveyance,  April  1st,  1832,  conveys  ^ to  Abijah  Brown. 
The  fourth,  May  1st,  1832,  conveyed  to  Hale  Clemeut 
The  fifth,  to  Joseph  G.  Kittredge,  June  12th,  1832,  The 
sixth  was  to  A.  Smith,  dated  October  1st,  1832,  of 
Now  callingthe  Eager  conveyance  as  it  was  undoubtedly 
intended,  if  you  add  all  these  conveyances  together  they 
amount  to 

On  January  24th,  1834  (and  these  were  all  the  con- 
veyances that  they  made  of  this  power),  these  parties 
conveyed  to  Whitwell,  Seaver  & Bond  all  the  remainder  of 
the  land  that  they  acquired  from  Howe  & Curtis,  and  all  the 
remaining  water-rights,  which  amounted  to  as  you  will 
see.  Whitwell,  Seaver  & Bond,  on  the  28th  of  April, 
1835,  conveyed  the  whole  to  Farnsworth,  Baker  & Hall. 
There  was  a flannel-mill  here;  and,  by  the  way,  it  is  not 
very  material  here  now,  but  the  rights  of  this  flannel-mill 
were  always  described  as  coming  first  after  the  Middlesex. 

Mr.  Butler.  So  that  all  these  twenty-fifths  were  subject 
to  the  flannel-mill,  and  that  had  the  first  right. 

Mr.  Shattuck:.  Ten  of  our  twenty-fifths  are  the  first 
ones  ; but  it  is  not  very  material,  as  we  owned  so  much  of  it, 
whether  we  come  first  or  after  the  others.  Then  Farnsworth, 
Baker  & Hall,  owning  conveyed  May  11,  1842,  to  one 
French  and  others,  § of  Then  they  conveyed,  Novem- 
ber 11th,  to  John  Holt,  P of  Then  on  December  5th, 
1842,  they  conveyed  to  J.  O.  Peterson  So  that  we  own 
now  less  That  is  our  exact  title.  It  is 

I have  merely  stated  this  for  the  purpose  of  putting  in  the 
minds  of  the  commissioners  a history  of  the  title.  And  now 
1 propose  to  put  in  our  deeds.  We  being  in  possession  and 
using  the  w^ater,  as  has  been  shown,  I propose  to  put  in 
the  deeds  to  us  which  prove  the  title.  Then  I propose  to 
put  in  these  other  deeds,  for  the  purpose  of  identifying  the 
interest  described  in  our  title. 

Henry  Parkman,  sworn . 

Q.  (By  Mr.  Shattuck.)  Have  you  examined  the  deeds  of 
Daniel  P.  Curtis  to  Warren,  Barry  & Park,  and  of  H.  G.  Howe 
to  the  same,  and  located  the  land  ? 

A.  I have,  sir. 

Q.  Have  you  your  plans  that  you  made  of  it? 


890 


Belvidere  Mills. 


A.  [Produces  plans.] 

Q.  How  does  it  compare  with  the  land  shown  on  these  plans? 

A.  These  two  deeds  convey  different  parcels  of  land,  which, 
when  placed  together,  form,  as  accurately  as  possible,  allowing  for 
two  or  three  feet  difference  in  measurement ; they  are  all  embraced 
in  this  plan. 

Q.  These  deeds  convey  the  land,  i.  e .,  the  land  on  the  easterly 
side  of  the  Concord  river? 

A.  Yes,  sir. 

Mr.  Butler.  One  of  these  deeds  is  dated  the  second  day  of 
Januarjr,  1832,  and  is  from  H.  G-.  Howe  and  his  wife  to  Richard 
Warren,  Samuel  Barry,  and  Thomas  G.  Park,  conveying  a certain 
parcel  of  laud  containing  103  rods,  bounded  as  therein  described, 
“ intending  to  convey  the  same  property  that  was  conveyed  to  me 
ly  Winthrop  Howe.”  ....  That  conveys  certain  land,  but 
no  water.  This  other  deed  is  a deed  from  Daniel  T.  Curtis  to 
Warren.  Barry  & Park,  of  a certain  piece  of  land  called  Belvi- 
dere, bounded  as  set  forth  in  the  deed,  dated  eighth  of  September, 
1831 “ That  conveys  no  water.” 

Q.  (By  Mr.  Shattuck).  Now,  will  you  state,  at  the  time  of 
the  deed  of  Warren,  Barry  & Park  to  Samuel  Whitwell,  dated 
January  24,  1834,  what  conveyances  they  had  made  of  land  and 
water-rights  from  this  lot? 

Mr.  Butler.  I object.  That  must  be  shown  from  the  deeds 
themselves. 

Mr.  Shattuck.  I have  the  deeds.  I produce  the  deeds,  and 
ask  if  he  has  examined  any  others  besides  those? 

The  Witness.  I have  examined  the  records,  and  find  no  other 
deeds  on  record.  Deed  James  Stewart,  William  Eager,  Abijah 
Brown,  Hale  Clement,  Joseph  G.  Kittredge  and  A.  Smith.  These 
are  the  six.  They  are  from  Warren,  Bany  & Park. 

Mr.  Shattuck.  He  says  there  are  no  other  conveyances  from 
Warren,  Barry  & Park  during  that  time  that  he  has  discovered. 

The  Witness.  I would  like  to  amend  that  by  saying  that  I dis- 
covered no  other  deeds  with  relation  to  this  land.  1 will  not 
swear  that  Warren,  Barry  & Park  have  not  made  other  con- 
veyances. 

Q.  Here  is  another  “ Eager,”  and  here  is  one  u Clement,”  and 
here  is  another  to  “ Smith.” 

A.  These  in  my  hand,  which  you  have  just  given  me,  are  the 
six  deeds  relating  to  the  different  parts  of  this  land. 

Mr.  Shattuck.  I will  put  those  in.  I will  read  them  if  you 
would  like. 


Cross-examination  waived. 

Q.  (By  Mr.  Shattuck.)  This  is  a copy  of  the  plan  referred  to 
in  these  deeds?  [The  old  map.] 

A.  Yes,  sir.  It  is  slightly  enlarged,  but  the  measurements  are 
the  same. 

Mr.  Shattuck.  At  this  point  I would  ask  the  permission  of  the 
commissioners  to  call  out  of  the  natural  order  of  the  testimony 


Testimony  of  J.  H.  Shedd. 


891 


Mr.  J.  Herbert  Shedd,  as  a witness,  whose  engagements  require 
him  to  leave  the  city  to-day. 


J.  Herbert  Shedd,  sworn. 

Q.  (By  Mr.  Shattuck.)  What  is  your  occupation? 

A.  That  of  civil  engineer. 

Q.  What  branch,  if  any,  have  you  been  specially  devoted  to? 

A.  More  particularly  to  hydraulic  engineering. 

Q.  What  knowledge  have  you  of  the  Concord  and  Sudbury 
rivers,  and  what  time  have  you  spent  in  the  investigation  of  them? 

A.  I was  one  of  a Board  of  State  Commissioners  appointed  by 
the  government  to  investigate  that  river  in  1861,  and  was  specially 
in  charge  of  the  observations  made  at  that  time.  They  extended 
from  July  until  November. 

Q.  During  that  time,  where  were  you  stationed  and  what  did 
you  do?  State  generally ? 

A.  I had  no  particular  station.  I was  in  charge  of  all  the 
work,  and  we  had  a large  number  of  observers  upon  the  stream. 
Mr.  Storrow  was  a member  of  the  commission.  This  extended 
from  Saxonville  to  Billerica  — to  the  Talbot  and  Faulkner  dam  at 
Billerica.  There  were,  I think,  36  separate  stations  and  observers. 
1 was  there  daily  most  all  the  time. 

Q.  What  knowledge  have  you  of  the  Sudbury  river,  and  of  its 
flow? 

A.  That  was  included  in  the  branch  from  Saxonville,  and  to  the 
junction  of  the  Sudbury  and  Assabet  in  Concord  was  included  in 
this  special  investigation.  I have  special  knowledge  of  the  drain- 
age area  of  the  Sudbury  and  Assabet  from  other  observations. 

Q.  How  does  the  Sudbury  compare  with  the  Concord  as  a river 
to  furnish  power,  or  to  carry  off  the  rainfall? 

A.  I think  there  is  no  great  difference  between  the  Sudbury  and 
Concord  rivers.  In  some  respects  they  may  be  different,  in  one 
way,  and  that  be  balanced  by  differences  in  another  way  ; so  that, 
on  the  whole,  I think  that  the  supply  of  water  for  mill  purposes 
would  be  about  the  same  from  the  Sudbury  and  from  the  Concord. 

Q.  Will  you  state  what  those  advantages  and  disadvantages 
are? 

A.  Both  rivers  are  what  would  be  called  slow  rivers.  In  gen- 
eral, the  Concord  river  is  a slower  river  than  the  Sudbury.  But 
the  amount  of  water  that  would  be  gathered  from  the  Sudbury 
drainage  area  and  utilized  for  manufacturing  purposes  wrould  be 
rather  greater,  I think,  than  from  the  Concord. 

Q.  Why  so? 

A.  Because  the  slopes  are  steeper,  and  the  water  that  falls  upon 
those  slopes  would  be  less  exposed  to  loss  by  evaporation  than  the 
water  that  falls  upon  the  basin  of  the  Concord. 

Q.  In  estimating  the  amount  furnished  from  the  Sudbury  river 
at  the  Wamesit  dam,  what  effect  would  the  evaporation  in  the 
Concord  river  have,  and  how  would  you  get  at  the  amount? 

A.  If  I understand  you,  you  mean  whether  the  evaporation 


892 


Belvedere  Mills. 


from  the  Concord  basin  would  be  different  on  account  of  the  supply 
from  the  Sudbury. 

Q.  Yes,  sir  ; that  is  part  of  it. 

A.  I merely  wish  to  understand  the  question. 

Q.  Yes,  sir  ; that  is  the  direction  in  which  I wish  to  get  light? 

A.  Well,  the  evaporation  from  the  Concord  basin  depends,  of 
course,  largely  upon  the  area  of  water  surface,  and  then  upon  the 
area  of  moist  meadow  surface,  and  some  evaporation,  of  course, 
from  all  the  upland  drainage  area.  The  amount  of  water  that 
would  be  turned  in  from  the  entire  Sudbury  river,  I think,  would 
make  a difference  in  the  elevation  of  the  water  surface,  spreading 
it  over  a greater  surface ; and  the  evaporation  would  be  propor- 
tionally increased ; but  if  you  should  separate  from  that  the 
amount  delivered  from  the  upper  reaches  of  the  Sudbury  river,  I 
think  the  amount  of  the  evaporation  would  not  be  any  greater 
on  account  of  the  amount  supplied  from  the  upper  reaches. 

Q.  The  amount  supplied  above  Farm  pond  would  not  add 
materially  to  the  evaporation? 

A.  I think  not. 

Q.  So  that  if  there  were  288  feet  running  at  the  Wamesit  dam. 
how  would  you  get  at  the  proportion  of  that  furnished  by  the  Sud- 
bury river?  Would  you  add  the  evaporation  before  getting  the 
proportion? 

A.  I should  in  any  way  eliminate  the  subject  of  evaporation 
from  the  question. 

Q.  Should  you  add  the  evaporation  in  the  Concord  river  to  the 
288  feet  in  order  to  get  the  proportion  of  the  water  at  Wamesit 
dam  furnished  by  the  Sudbury  river? 

A.  Yes,  sir  ; I should  do  that  as  a means  of  eliminating  the  ques- 
tion of  evaporation  from  the  estimate  of  the  proportion. 

Q.  From  your  knowledge  of  the  Concord  and  Sudbury  rivers, 
will  you  state  whether  or  not,  in  3Tour  judgment,  in  dry  weather, 
the  Sudbury  river  contributes  a proportion  measured  by  the  pro- 
portions of  ihe  water-shed  to  the  supply  of  Wamesit  dani,  leaving 
out  now  the  matter  of  evaporation  ? 

A.  Taking  the  whole  question,  as  to  whether  the  Sudbury  river 
furnishes  its  fair  quota  and  proportion  from  the  drainage  area  to 
the  water-power  at  that  dam,  I should  say  that  it  did. 

Q.  Whether  the  fact  that  in  measurements  made  at  times  of 
extreme  low  water,  or  low  water  during  the  summer  season,  it 
appeared  on  particular  days,  or  for  several  daj’s  in  succession, 
that  there  was  less  in  that  proportion  in  the  Sudbury  river,  would 
influence  your  judgment  particularly  in  this  matter? 

A.  If  it  -were  confined  to  a limited  time  it  would  not  influence 
my  judgment. 

Q.  Whether  the  aggregate  of  the  flow  of  the  Sudbury  river 
during  the  year  would  not,  in  your  judgment,  more  accurately 
measure  the  proportional  aggregate  of  the  flow  of  the  Sudbury  and 
Concord  would  not  accurately  measure  the  contribution  through 
the  whole  season? 

A.  Yes,  sir  ; I think  it  wrould. 

Q.  Now,  will  you  state  the  reasons  why  3'ou  think  the  average 


Testimony  of  J.  H.  Shedd. 


893 


contribution  of  the  Sudbury  river  is  the  test  of  its  value,  rather 
than  its  contribution  at  the  lowest  points? 

A.  Well,  I should  judge  that  to  be  the  case  from  the  general 
character  of  the  basins  first.  Also  because  those  rivers  are  natur- 
ally well-reservoired  rivers,  and  the  amount  that  falls  upon  the 
drainage  area  of  the  Sudbury  is,  by  reason  of  the  natural  reservoirs 
existing  on  the  stream,  spread  over  a considerable  time ; and  it 
should,  therefore,  be  taken  as  an  average  for  a long  time  in  making 
the  estimate  of  the  amount  delivered.  The  fact  that  it  is  a slow 
river  is  indicated  by  the  amount  delivered  from  the  Sudbury  in 
time  of  freshet.  I find  that  if  you  should  plot  the  amount  delivered 
in  a given  time,  or  discharged  by  the  Sudbury  in  freshets,  on  a 
chart  that  contained  that  of  a large  number  of  rivers  of  various 
sizes,  that  would  be  among  the  slowest  rivers  of  the  entire  number. 
That  indicates  that  it  has  reservoirs  possessing,  either  artificially 
or  naturally,  a large  storage  capacity. 

Q.  Take  the  water  of  the  Sudbury  when  it  comes  into  the  Sud- 
bury meadows. 

A.  You  refer  now  to  the  upper  portion  ? 

Q.  Yes,  sir,  I refer  to  the  upper  portion  of  the  Sudbury  river. 

A.  There  are  a considerable  number  of  reservoirs,  of  natural 
ponds,  and  of  mill-ponds.  I am  not  sure  now  of  the  number,  but 
J think  there  are  about  nine  natural  ponds  and  twenty-three  mill- 
ponds, if  I remember  correct^,  on  the  whole  stream. 

Q.  Now,  take  the  water  of  the  Sudbury.  After  it  gets  into  the 
Sudbury  meadows,  which  extend  to  the  Talbot  dam,  what  becomes 
of  it  when  it  comes  in  there  in  a freshet  after  a dry  time? 

A.  It  is  very  largely  stored  there.  If  the  Concord  river  is  run- 
ning low  between  the  banks,  and  has  run  so  for  a considerable 
time,  it  has  drained  the  adjoining  grounds  for  a long  distance  of 
standing  water.  It  has  withdrawn  water  from  the  banks,  as 
though  it  were  a basin  of  clear  water  free  from  earth.  It  is  of 
very  porous  material,  and  a rise  of  water  in  the  river  is  followed 
by  a rise  of  water  in  this  land, — very  much  as  though  it  were  in  a 
large  pond,  — forming  the  water  table  beneath  the  surface  of  the 
earth.  It  is,  of  course,  not  so  great  in  quantity  as  though  it  were 
an  open  pond,  but  it  is  similar,  and  it  has  a measurable  value  in 
furnishing  storage  for  the  water  that  comes  down  from  the  Sud- 
bury. There  is  a considerable  volume  stored  in  that  way  by  the 
rise  of  the  river.  There  is  a rise  of  water  in  the  ground  coin- 
cident. 

Q.  Do  you  state  that  from  observations  made  by  you? 

A.  I state  that  not  onty  from  general  observations  and  reason- 
ings in  relation  to  this,  but  because  I made  actual  test-pits  during 
this  examination,  and  had  those  test-pits  with  rods  in  them  to 
observe  the  action  of  the  river  as  the  water  rose  and  fell. 

Q.  The  water  table  in  all  the  surrounding  lands? 

A.  In  very  many  places,  extending  for  several  miles  altogether. 

Q.  Then  I understand  you  to  measure  the  storage  basin  of  the 
Concord  river  not  only  by  the  river,  but  by  the  whole  surrounding 
country? 

A,  The  inner  surrounding  country. 


894 


Belyidere  Mills. 


Q.  Going  how  far  back? 

A.  Extending  somewhat,  I think,  bej^ond  what  are  considered 
by  the  people  in  that  country  “ the  meadow  lands.”  I think  it 
extends  beyond  to  some  extent. 

Q.  And  that  is  not  only  a reservoir  when  the  water  is  high  in 
the  river,  but  when  it  is  low? 

A.  Any  increase  of  height  in  the  stream  causes  in  a measure  an 
increased  height  of  the  water  table  in  these  lands. 

Q.  Now,  suppose  we  take  a rainfall  of  two  inches  in  a dry 
time,  and  on  the  Sudbur}’  river,  when  the  Concord  is  low,  is  there 
any  way  of  ascertaining  how  long  a time  elapses  before  that  water 
gets  to  the  Wamesit  dam? 

A.  Observations,  I suppose,  might  be  made  to  determine. 

Q.  Some  of  it  is  stored  in  this  way  ? 

A.  Yes,  sir  ; and  then  it  comes  out  from  its  storage.  We  had  an 
observation  of  the  stream  during  our  experiments,  which  indicates 
very  well  the  relative  storage  capacity  of  the  Sudbury  and  Concord 
rivers.  A storm  occurred  early  in  August,  and  there  was  a rain- 
fall, I think,  of  a little  more  than  three  inches.  (I  have  not  re- 
ferred to  these  reports  for  a long  time.)  The  water  rose  in  both 
those  rivers,  resulting  from  that  storm,  and  continued  to  rise  for 
about  four  days  after  the  storm,  and  then,  on  reaching  its  highest 
point,  began  to  fall,  and  continued  for  many  days  after  that.  The 
highest  rise  occurred  in  the  Concord  river,  and  the  fall  began 
earlier  than  in  the  Sudbuiy  river.  So  far  as  that  indicates  the  com- 
parative value  of  the  two  rivers  for  storage,  that  would  indicate 
that  the  Concord  river  is  not  so  valuable  as  the  Sudbury  for  storage 
purposes,  so  far  as  that  goes.  The  Sudbury  river  was,  as  I re- 
member, nearl}7  a day  later  in  coming  to  its  highest  stage.  Then, 
for  about  eighteen  da}~s  after  the  highest  stage  was  reached,  the 
effect  of  this  storm  was  felt  before  the  river  was  restored  to  its 
original  condition  — in  the  Concord  and  in  the  Sudbury  as  well. 
I think  it  was  about  nineteen  days  in  the  Sudbury.  That  is  a 
reasonable  result. 

Q.  You  mean  now  at  the  entrance  of  the  Sudbury  into  the 
Concord  ? 

A.  I refer  now  to  the  Sudbury  — to  that  which  reached  from 
Wayland  to  Concord  — a distance  of  a great  many  miles.  I have 
forgotten  just  how  many  miles,  but  the  whole  distance  from  the 
dam  is  twenty-five  miles  to  the  point  that  I now  refer  to.  That  is 
a reasonable  result,  I think,  because  the  Assabet  river,  which  joins 
the  Sudbury  at  Concord,  and  makes  part  of  the  Concord  river,  is  a 
quicker  stream  than  the  Sudbury.  The  flow  of  the  Concord  depends 
not  alone  upon  its  own  drainage  area,  but  is  modified  b}^  the  flow 
from  the  Sudbury  and  Assabet ; and  the  flow  of  the  Concord  is 
the  result  of  all  three.  Now,  the  Assabet  being  so  much  quicker 
than  either,  has  its  weight  in  the  Concord  river,  and  causes  that  to 
be  a quicker  stream  really  than  the  Sudbury. 

Q.  Of  course  you  made  no  measurements  up  at  Farm  pond,  I 
suppose  ; but  your  measurements  were  after  the  Sudbury  had  come 
down  through  these  meadows  for  so  many  miles? 

A.  The  upper  station  for  measurement  was  at  Saxonville.  That 


Testimony  of  J.  H.  Shedd. 


895 


is  not  far  from  the  outlet  at  Cochituate.  But  our  examination  ex- 
tended incidentally  over  a considerable  portion  of  the  area. 

Q.  What  is  the  fall,  if  there  is  any,  in  the  water  of  the  Sud- 
bury, between  where  it  goes  to  the  meadow  near  Saxonville  and 
Talbot’s  dam? 

A.  That  I shall  have  to  state  from  recollection  ; but  it  is  pos- 
sible to  make  it  accurate,  if  you  wish. 

Q.  I don’t  care. 

A.  From  Farm  bridge,  the  upper  station  of  the  main  portion  of 
the  meadows,  to  the  dam,  I think,  is  about  twenty-four  or  twenty- 
five  inches  on  the  surface  of  the  pond ; and  the  crest  of  the  dam 
is  higher  than  the  bed  of  the  river  nearly  in  its  entire  length. 

Q.  What  is  the  fall  of  some  of  the  different  miles  in  the  Sud- 
bury river  ? 

A.  In  some  of  them  it  is  very  low  indeed,  as  low  as  one-eighth 
of  an  inch  in  a mile.  The  falls  were  made  largely  at  bars,  or 
places  where  weeds  had  grown  across,  and  those  weeds  acted  to 
retain  the  water  of  the  stream.  It  is  very  well  adapted  for  a regu- 
lating reservoir. 

Q.  That  is  so  in  the  lower  part  of  the  Sudbury  as  well  as  in  the 
Concord  ? 

A.  Yes,  sir.  It  is  so  for  the  entire  reach  from  Farm  bridge. 

Q.  How  many  miles  in  the  Sudbury  ? 

A.  That  I should  have  to  state  in  very  round  numbers  now. 
But  I should  say  it  was  ten  or  twelve  miles. 

Q.  You  remember  the  whole  length  from  the  Talbot  dam  — the 
entire  length  up  to  the  Sudbury  meadows? 

A.  Yes,  sir. 

Mr.  Butler.  That  has  already  been  put  in  and  a plan. 

Mr.  Shattuck.  I know  there  has  been  a statement  made.  It 
was  stated  by  Mr.  Talbot,  but  I understood  him  to  state  it  in  a 
general  way. 

Mr.  Butler.  We  took  it  from  this  witness’s  report. 

The  Witness.  We  made  a survey  of  that  district. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  You  took  no  measurements  above  the 
Saxonville  mills? 

A.  No,  sir ; no  measurements  of  the  stream  above  the  Saxon- 
ville mills. 

Q.  How  far  up  the  Sudbury  did  you  go  with  that  examination 
yourself? 

A.  I was  almost  constantly,  during  the  days  of  the  entire  sea- 
son, on  the  river.  We  had  a boat  that  was  exclusively  for  our 
use.  And  there  was  the  entire  distance  from  Billerica  dam  to  the 
point  in  Wayland  — two  or  three  miles  above  Farm  bridge  — very 
nearly  up  to  Saxonville.  Our  station  No.  1 was  in  the  meadows 
above  the  Bridle  Point  bridge.  I think  the  one  you  speak  of  is 
the  next  one  below  Farm  bridge.  Farm  bridge  and  Saddle  rock 
are  well  known  ; and  this  was  in  Wayland. 


896 


Belvidere  Mills. 


Q.  Did  you  go  over  any  portion  of  Sudbury  river  'above  the 
Saxonville  mills? 

A.  I did  for  examination,  but  not  for  measurement. 

Q.  What  examination  did  you  make,  and  how  many  times  did 
you  go  over  it  above  that  ? 

A.  That  I shall  have  to  state  from  recollection.  But  to  drive 
into  it  from  points  and  make  a general  observation  up  the  river,  I 
should  say  two  or  three  or  perhaps  four  times  in  the  season  — 
in  various  points.  Then  I visited  a number  of  the  large  ponds  and 
reservoirs. 

Q.  What  did  you  find  with  regard  to  the  large  reservoir  up  to 
the  head  built  by  the  city? 

A.  The  Marlborough  reservoir,  I think,  was  on  the  other  branch 
of  the  stream. 

Q.  W as  there  not  one  on  the  Sudbury  ? 

* A.  Yes,  sir,  there  was  one  on  the  Sudbury ; but  that  was  not 
new,  and  not  in  use  at  that  time. 

Q.  And  your  idea  would  be  that  the  mill  capacity  of  the  Sud- 
bury river,  say  below  Farm  pond,  would  be  very  considerably 
increased  by  the  fact  that  there  were  artificial  reservoirs,  and  mill- 
dams  that  were  occupied  in  the  river  above  during  the  dry  season, 
would  it  not?  And  therefore,  that  a stream  which,  like  the  Sud- 
bury, had  these  large  artificial  reservoirs  and  natural  reservoirs, 
and  natural  reservoirs  raised  in  their  storage  capacity  b}'  artificial 
means,  would  deliver  much  more  water  to  the  mill-owners  below 
there  would  be  the  natural  run  of  the  stream  in  the  dry  season, 
supposing  there  were  no  reservoirs  there? 

A.  Yes,  sir. 

Q.  About  what  proportion? 

A.  It  depends  entirety  upon  the  storage  capacity. 

Q.  But  is  it  not  a fact  that  a natural  stream  of  the  size  of  the 
Sudbury  river,  with  steep  banks  like  those  you  have  been  describ- 
ing on  the  Sudbury  river,  above  Saxonville  mills,  runs  off  quickest 
after  it  has  been  filled  up  after  the  spring  rains,  and  in  the  dry 
season  drys  up  much  more  quickly  than  a larger  river? 

A.  Every  river  has  a law  of  its  own.  You  can  only  speak  of 
these  rivers  relatively.  Now,  relatively  to  rivers  in  general,  I 
think  the  Sudbury  river  (I  am  now  keeping  in  mind  the  part  above 
Saxonville) — the  Sudbuiy  river  above  Saxonville  is  naturally  a 
well  reservoired  river.  I don’t  think  it  is  so  artificially.  I wish 
to  be  understood  as  speaking  of  this  as  a naturally  well  reservoired 
river,  so  that  it  is  a slow  river.  Now,  rivers  in  a flat,  sandy  dis- 
trict, are  very  uniform  in  their  flow.  This  of  course  is  less  uniform 
than  in  some  other  places,  but  it  is  relatively  a slow  river  notwith- 
standing. 

Q.  Is  there  a single  natural  reservoir  on  the  Sudbury  river, 
above  the  Saxonville  mills,  that  has  not  been  improved  by  artificial 
means,  for  storage? 

A.  I don’t  know  whether  Whitehall  pond,  which  is  a consider- 
able pond,  has  been  improved  by  artificial  means  or  not.  That  is 
in  Ilopkinton  and  has  a very  large  basin  I don’t  know. 

Q.  Is  not  the  fact  that  a stream  is  well  reservoired  by  having  its 


Testimony  of  J.  H.  Shedd. 


897 


various  natural  reservoirs  (such  as  ponds)  improved,  and  also  hav- 
ing the  low  meadows  improved  b}r  mill-dams,  would  not  the  value 
of  such  a stream  for  mill  purposes  below  be  very  much  improved 
and  very  much  enhanced  from  that  fact? 

A.  It  is  because  it  makes  the  flow  more  uniform. 

Q.  That  is,  if  I understand  you,  when  there  comes  a flow  of 
water,  it  would  flow  right  off  from  a natural  stream  — from  a sum- 
mer rain.  That  would  be  stored  up  and  kept  back  by  these  reser- 
voirs and  these  other  means,  and  allowed  to  come  down  more  slowly 
than  it  otherwise  would  ? 

A.  Yes,  sir. 

Q.  Now,  sir,  I desire  to  put  to  you  this  question  : Did  you  ever 
measure  the  flow  of  the  Sudbur}r? 

A.  It  was  measured  accasionally  during  our  experiments. 

Q.  How? 

A.  Measured  by  vertical  floats,  in  the  manner  used  ordinarily 
at  Lowell.  Of  course  not  so  accurately  as  there,  because  we  could 
find  no  uniform  channel.  We  measured  with  as  much  accuracy  as 
we  could  use  under  the  circumstances  as  we  found  them. 

Q,  You  never  measured  at  Saxonville? 

A.  Yes,  sir,  we  did  measure  at  Saxonville.  What  the  results 
were  at  Saxonville  I cannot  tell  you ; but  they  were  measured  at 
Saxonville. 

Q.  Were  those  results  put  into  your  report? 

A.  No,  sir  ; they  are  in  our  notes. 

Q.  Where  are  those  notes? 

A.  They  are  in  our  office.  I have  not  referred  to  them  in 
fifteen  years.  They  are  in  our  engineering  office. 

Q.  Where  is  your  office? 

A.  It  is  here  in  Court  square.  It  is  at  Barristers’  Hall. 

Q.  I wish  you  would  go  and  get  those? 

A.  I will  if  I can  find  them.  It  will  very  likely  take  con- 
siderable time. 

Q.  Do  so  in  a day  or  two.  Have  you  got  all  your  measurements 
that  you  made  at  that  time  ? 

A.  Yes,  sir : all  the  measurements  made  in  the  experiments  are 
preserved. 

Q.  Then  you  also  measured  the  flow  of  water  at  Billerica,  have 
you  not? 

A.  Yes,  sir. 

Q.  Have  you  got  those  measurements? 

A.  Yes,  sir ; I suppose  so.  I have  not  seen  them.  I have 
them  unless  they  are  lost  by  accident.  Everything  was  carefully 
preserved. 

Q.  So  that  if  we  can  get  those  notes  we  can  tell  what  the  flow 
of  the  Sudbury  was  in  that  year  — in  1861  ? 

A.  No,  sir.  We  can  tell  what  it  was  at  the  time  the  measure- 
ment was  made — just  at  the  time  of  the  measurement. 

Q.  And  you  could  tell  what  the  flow  of  the  Concord  was  at  the 
time  that  measurement  was  made? 

A.  Yes,  sir. 

Q.  How  long  did  the  measurement  continue  at  Concord? 


898 


Belvideke  Mills. 


A.  I should  think,  for  several  hours,  perhaps.  I have  not  that 
very  accurately  in  ;wmind  now ; but  the  observations  were  made 
frequently,  and  the  floats  were  put  in  repeatedly  and  at  different 
lines  in  the  stream. 

Q.  Did  you  write  this  report  ? [Showing  the  report  made  to  the 
House  of  Representatives.] 

A.  I wrote  portions  of  the  report.  The  report  was  put  into 
form  mainly  by  Mr.  Alvord. 

Q.  But  the  data  were  got  from  you,  I suppose? 

A.  Very  largely. 

Q.  Is  this  correct?  [Reads  statement  on  page  21  of  the  re- 
port.] “ Of  course,  any  material  diminution  in  the  water  reduces 
its  level  below  the  ford  way.  The  four  days  commented  upon 
above  followed  after  a long-continued  period  of  dry  weather,  some 
of  it  exceedingly  hot.  . . . There  was  being  discharged  at  the  dam 
about  100  cubic  feet  per  second,  which  is  probably  not  greater 
than  the  ordinary  flow  of  the  river.”  Is  that  a correct  statement 
of  the  condition  of  things  9 

A.  I should  think  so.  You  understand  this  refers  to  the  twenty- 
four  hours.  I know  of  no  reason  why  it  not  correct.  That  was 
the  result  of  careful  experiments  made  as  carefully  as  gentlemen 
who  are  put  upon  a public  work  can  make  them  under  such  cir- 
cumstances— as  carefully  as  was  necessary  under  those  circum- 
stances — not  so  carefully  as  they  could  be  made  in  a smooth,  regu- 
lar canal. 

Q.  Did  you  measure  over  the  weir  of  the  dam? 

A.  No,  sir ; it  was  measured  in  the  channel  just  above  the 
dam — what  we  assumed  to  be  a fair  measurement  of  the  quantity 
flowing  at  that  dam  ? 

Q.  Is  this  map  which  I now  show  you  in  this  report  correct? 

A.  It  is  intended  to  be  entirely  correct.  It  is  a reduction  from 
the  large  map  made  from  the  surveys. 

Q.  This  gives  us  the  Concord  and  Sudbury  rivers  in  1861? 

A.  It  gives  lines  of  several  observations  that  were  selected 
from  the  tables  for  plotting. 

Q.  It  is  meant  to  be  a profile? 

A.  Yes,  sir  — very  much  exaggerated. 

Q.  Was  that  map  which  I now  show  you  from  this  report  your 
survey?  [Showing  map  entitled  “ Map  giving  the  actual  surveys, 
etc.”] 

A.  Yes,  sir. 

Q.  Then  we  can  rely  upon  the  tables  of  this  map  as  being  ac- 
curate measurements? 

A.  They  were  made  with  the  greatest  care,  and  the  greatest 
care  was  taken  in  transcribing  them.  I think  that  report  is  as 
accurate  as  can  be  made  under  ordinary  circumstances.  The 
greatest  care  was  taken  in  checking  every  result,  proving  the 
transcribing  by  re-reading. 

Q.  I desire  to  call  your  attention  to  this  table,  marked  “ C,” 
from  the  report  of  the  commissioners  of  1861. 

A.  These  columns  of  figures  show  the'  heights  on  the  several 
days  marked  against  them,  assuming  the  dam  to  be  ten.  The  line 


Testimony  of  J.  H.  Shedd. 


899 


marked  “ August  7 th,”  or  the  upper  line,  and  the  line  marked 
“ 6th,”  do  show  the  heights. 

Mr.  Butler.  Now,  then,  we  find,  Messrs.  Commissioners,  that 
this  is  the  fact,  from  this  day-book:  August  7th,  water  was  run- 
ning of  a foot  over  the  dam ; that  is  on  the  7th  of  August. 
From  the  7th  to  the  11th  it  was  drawn  down  16 J inches  below  the 
dam  for  the  purposes  of  experiment.  From  the  7th  to  tae  30th  it 
was  kept  33  inches  below  the  dam.  Then,  on  the  6th  of  Septem- 
ber, it  was  running  of  a foot  over  the  dam.  Now,  then,  we 
have  the  effect  of  raising  the  dam  from  the  1st  of  September  to 
the  11th.  You  started  off  with  it  33  inches  below,  and  the  next 
table  shows  the  level  at  16 J inches.  I think  we  had  better  put 
this  in  to  have  it  to  refer  to,  but  not  have  it  printed,  so  that  we 
shall  be  at  liberty  to  refer  to  any  portion  of  the  report. 

Mr.  Shattuck.  If  we  can  get  a copy  of  it,  I have  no  objection 
to  your  referring  to  it.  With  that  understanding,  — that  you  fur- 
nish me  one  for  inspection,  — I make  no  objection. 

Q.  Now,  I suppose  what  you  mean  to  say  is,  that  during  the 
whole  year,  the  areas  of  the  drainage  of  a river,  and  the  amount 
of  water-shed  as  applied  to  rivers,  will  show  the  difference  of 
flow,  as  a rule  taken  during  the  whole  year? 

A.  I am  afraid  I misunderstand  your  question.  If  I under- 
stand it,  it  is  this : That  as  between  two  rivers,  the  area  and  the 
character  of  the  surface  affects  the  amount  of  water  flowing 
through  those  rivers? 

Q.  Yes,  sir. 

A.  Yes,  sir ; in  general  terms  that  is  true. 

Q.  Now,  that  does  not  constitute  the  whole  of  my  question. 
You  know  the  quantity  of  water  that  flows  in  one  river,  and  you 
want  to  get  the  quantity  that  flows  in  another  river.  For  that  you 
would  examine  the  water-shed  to  see  if  there  was  any  special 
difference  between  the  two,  and  then  you  would  assume  as  an 
engineering  fact,  that  if  the  rainfall  was  the  same,  the  quantity  of 
water  which  they  would  produce  would  be  the  same? 

A.  If  we  could  discover  no  differences  we  should  so  assume. 
That,  however,  is  not  true.  It  is  not  according  to  the  area  — the 
quantity  of  water  flowing  at  any  given  time. 

Q.  That  is  what  I was  going  to  ask  you  — whether  you  would 
not  take  it  through  the  year  to  get  at  that.  Now,  you  didn’t  take 
in  that  part  of  my  question. 

A.  I think  it  is  a fair  assumption,  taking  the  year  together, 
that  if  you  can  discover  no  differences  in  the  character  of  the 
water-shed,  that  the  flow  will  be  proportioned  to  the  area,  — that 
is,  within  reasonable  limits? 

A.  Yes,  sir  ; I say  “ substantially  ” — 

Q.  That  is,  that  you  would  expect  to  approximate  to  it. 

A.  Yes,  sir  ; and  use  it  as  a means  of  forming  our  judgment. 

Q.  Does  that  hold  true  in  the  summer  months,  taking  those 
alone  ? 

A.  Under  the  same  conditions,  from  the  same  drainage  area. 

Q.  Well,  of  course  that  cannot  change  very  much  during  the 
year.  Do  not  rivers  separate  very  much  in  the  amount  of  waters 


900 


Belvidere  Mills. 


they  afford  in  the  summer  months,  while  they  might  be  substan- 
tially in  relation  in  the  winter  months? 

A.  They  do  ; but  that  is  dependent  largely  on  the  character  of 
the  drainage  area. 

Q.  And  while,  taking  winter  and  summer  together,  the  charac- 
ter of  the  drainage  area  might  not  affect  the  relative  proportions 
of  water,  yet  when  applied  to  the  dry  time,  they  affect  it  very 
much  ? 

A.  The  difference  in  the  drainage  area  that  would  not  affect  it 
through  the  year  might  materially  affect  it  in  a. dry  time. 

Q.  But  leaving  the  drainage  area  constant  both  winter  and 
summer  in  a river,  my  question  to  you  is,  whether,  whatever  was 
the  difference  in  character  of  the  drainage-water,  take  it  winter 
and  summer,  it  would  substantially  affect  the  difference  in  the  flow 
of  water  — the  average  flow  of  water  during  the  year? 

A.  I am  afraid  I don’t  get  your  question. 

Q.  I will  put  it  again.  Here  are  two  rivers,  with  drainage  areas 
sa}^  of  one  to  four.  Now,  under  ordinary  circumstances  of  the 
character  of  those  drainage  areas,  not  the  extent,  taking  the  whole 
year  together,  would  you  not  expect  to  find  the  flow  of  water 
without  going  into  the  character  of  the  drainage  areas  particularly, 
about  as  one  to  four,  or  approximately  so? 

A.  I should  not  expect  to  find  it  so,  if  we  exclude  the  charac- 
ter of  the  drainage  area. 

Q.  Why  not? 

A.  Because  the  amount  collectable  from  one  drainage  area  is 
very  different  from  that  collectable  from  another  drainage  area ; 
i.  e.,  the  proportion  of  the  rainfall.  I suppose  you  assume  the 
same  depths  of  rain.  Now  the  amount  lost  from  various  causes  is 
very  different  in  one  drainage  area  from  that  in  another  drainage 
area  of  a very  different  character,  throughout  the  year.  On  some 
of  the  tributaries  of  the  Mississippi,  it  has  been  found  to  vary,  if 
I remember,  from  15  to  93  per  cent.  The  percentage  of  rainfall 
collectable  is  found  to  vary  often. 

Q.  How  collectable? 

A.  The  amount  that  is  received  into  the  stream,  or  can  be 
measured  as  flowing  into  the  stream  during  the  whole  year.  That 
depends  upon  the  character  of  the  drainage  area  of  each  partic- 
ular territory. 

Q.  Then  there  must  be  some  extraordinary  circumstances  to 
make  that  difference? 

A.  Yes,  sir. 

Q.  I mean  in  the  ordinary? 

A.  The  difficulty  in  my  mind  is  in  limiting  the  word  “ ordi- 
nal.” If  the  results  begin  to  change,  I cannot  tell  where  the 
limit  is. 

Q.  Is  it  not  the  fact  that  the  difference  would  not  be  nearly  as 
observable,  taking  the  year  through,  as  it  would  be  taking  the  dry 
months  onl}r? 

A.  Why,  yes,  sir.  I think  that  a difference  in  the  character  of 
the  drainage  area  that  would  not  affect  the  yearly  discharge,  might 
materially  affect  the  summer  discharge,  or  the  winter  discharge. 
That  is  true. 


Testimony  of  J.  H.  Shedd. 


901 


Q.  Yes,  sir  ; that  is  supposed  to  be  so.  Now,  sir,  you  spoke  of 
the  tributaries  of  the  Mississippi,  and  that  brings  me  to  a question  : 
Is  it  not  a fact  that  the  waters  collectable  on  the  area,  with  the 
drainage  area  the  same,  and  the  rainfall  the  same,  is  much  more 
considerable  in  the  dry  season  from  large  rivers  than  small  ones,  in 
proportion  ? 

A.  I think  the  discharge  ordinarily  from  a large  river  is  more 
uniform  during  the  dry  season. 

Q.  I am  talking  about  the  dry  season.  Could  you  not  put  it  a 
little  stronger  than  that,  Mr.  Shedd?  Is  it  not  a rule  in  hydraulic 
engineering  that  the  larger  the  river  is,  the  more  water  is  collected 
in  the  river,  in  proportion  to  its  drainage  area  and  the  water-shed  — 
more  in  proportion  collectable  in  a small  river? 

A.  Well,  I think  you  may  state  that  as  a general  rule,  that  the 
flow  from  a very  large  drainage  area  is  a little  more  uniform  than 
that  from  a small  one.  From  my  own  knowledge  I should  not  be 
willing  to  put  it  stronger  than  that. 

Q.  Take  the  Merrimack,  for  instance,  and  compare  it  with  the 
Spicket.  Do  you  know  that  river  ? 

A.  No,  sir. 

Q.  Compare  it  with  the  Sudbury  above  Saxonville,  Which  do 
you  think  would  allow  to  be  collected,  in  proportion,  the  most 
water,  the  Merrimack  or  the  Sudbury,  in  a dry  season? 

A.  Well,  I should  expect  to  find  the  flow  in  the  Merrimack 
during  a drought,  greater  in  proportion  to  its  area,  than  I should 
the  seventy  miles  above  Farm  pond. 

Q.  I am  speaking  about  that.  Looking  at  as  small  a stream  as 
you  know  about,  do  you  mean  to  say  “ considerably  greater  flow 
in  the  Merrimack  during  the  dry  season  than  in  the  Sudbury 
relatively  ” ? 

A.  1 should  prefer  to  say  “larger”  rather  than  “ considerably 
greater.” 

Q.  Would  you  say  that  it  was  a fair  proportion  at  all,  and  will 
you  say  that  you  can  testify  with  an}r  degree  of  confidence  from 
the  mere  fact  that  the  drainage  area,  say  of  the  Sudbury  above 
Saxonville,  was  TXT  part  of  the  drainage  area  of  the  Merrimack,  — 
that  in  a dry  season  the  Sudbury  would  furnish  part  of  the 
water  of  the  Merrimack? 

A.  On  the  assumption  that  this  is  the  relative  proportion  of  the 
area,  in  the  absence  of  any  knowledge,  1 can  only  state  my 
opinion, — that  I think  the  flow  in  the  Sudbury  would  not  be  so 
great  as  the  proportion  of  the  area. 

Q.  Now  is  it  not  a fact,  Mr.  Shedd,  that  it  is  very  difficult,  taking 
the  dry  months  of  the  year,  to  ascertain  what  will  be  the  flow  of  a 
river  from  the  water-shed  alone,  and  the  rain-gauge? 

1 O o 

A.  Yes,  sir,  it  is  an  uncertain  problem. 

Q.  A very  uncertain  problem,  is  it  not? 

A.  Well,  there  are  more  uncertain  problems,  I think;  but  still 
this  may  be  classed  as  an  uncertain  problem. 

Q.  The  question  of  the  eternal  salvation  of  a given  man 
may  be  one,  — and  there  is  no  other  more  uncertain  problem,  is 
there  ? 


902 


Belyidere  Mills. 


A.  The  various  uncertainties  of  life  do  not  occur  to  me  particu- 
larly just  at  this  moment. 

Q.  Now  suppose  you  had  the  measurement  of  the  Sudbury 
through  the  dry  season  of  one  year,  and  the  exact  measurement  of 
the  Concord  through  the  same  season  of  the  same  year,  — take  the 
three  diy  months  of  July,  August  and  September,  — you  could 
ascertain  thereby,  could  you  not,  substantially  what  proportion  the 
Sudbury  furnished  to  the  Concord  ? 

A.  Well,  3*011  could  ascertain  the  amount  delivered  at  that  time. 
There  may  be  circumstances  tending. 

Q.  I mean  that  you  could  ascertain  at  that  time,  what  amount 
in  the  aggregate  the  Sudbury  furnished  to  the  Concord  during 
those  days? 

A.  If  you  had  exact  measurements  of  the  flow  of  each  river  you 
could  compare  them. 

Q.  Would  not  that  be  an  exact  measurement  of  what  each  one 
contributed  to  each  other? 

A.  It  might  not  be  for  another  time  — not  for  another  year. 

Q.  I am  not  coming  to  that  now.  When  I do,  I will  put  it  to 
you  so  that  you  can  understand  it  thoroughly.  I am  now  speaking 
about  those  three  months.  Would  it  not  be  the  best  and  most 
accurate  means  of  ascertaining  what  water  the  one  contributed  to 
the  other  during  those  three  months  — the  best  and  most  accurate 
means  known  to  engineering  science? 

A.  If  fairly  measured. 

Q.  I am  assuming  that  it  is  fairly  measured.  If  it  was  honestly 
and  fairly  measured,  how  much  would  run  in  the  Concord  after  the 
Sudbury  joining,  and  how  much  would  run  in  the  Sudbury  before 
it  joined  the  Concord,  — and  those  were  measured  over  weirs  and 
through  flumes  in  the  most  approved  methods  of  modern  science 
during  the  three  summer  months  in  the  year,  — should  you  not  say 
that  was  the  best  means  known  to  science  of  ascertaining  the 
amount  of  water  contributed  through  the  year  by  the  Sudbury  to 
the  Concord? 

A.  I would  like  to  say,  in  a common  way,  that  the  actual  meas- 
urement is  the  best  means  of  ascertaining  the  amount  contributed 
by  the  Sudbury  to  the  Concord. 

Q I wanted  to  find  out  if  water  was  a different  thing  from  an}'- 
thing  else  in  that  respect. 

A.  Actual  measurement  would  be  the  best,  if  made  at  the  right 
place. 

Q.  Now,  then,  would  }*ou  not  expect,  with  the  same  rainfall  in 
another  year,  during  those  same  three  months,  to  find  substantially 
the  same  amount  of  water  in  the  two  rivers. 

A.  Well,  I should  want  to  know  what  had  been  done  in  those 
seasons  with  the  dams,  — what  mill-owners  were  doing  with  their 
wheels  and  with  their  ponds. 

Q.  Assuming  that  the  ponds  were  the  same. 

A.  Assuming  that  all  the  conditions  were  the  same,  then  the 
results  would  be  expected  to  be  the  same. 

Q.  That  is  what  I want  to  get  at  — all  the  known  conditions  to 
be  the  same.  Suppose,  then,  that  for  a series  of  twenty  years, 


Testimony  of  J.  H.  Shedd. 


903 


taking  the  rainfall  on  the  two  rivers,  would  you  not  expect  to  find 
that  quantity  of  water  maintaining  relatively  the  same  proportions 
as  shown  during  the  measurements  during  the  years? 

Mr.  Shattuck.  Do  you  mean  the  rainfall  to  fall  on  the  same 
days,  or  the  same  amount  of  rainfall  ? 

Mr.  Butler.  I take  the  same  amount  of  rainfall  between  the 
first  day  of  July  and  the  first  day  of  October  for  each  year. 

Mr.  Shattuck.  Without  reference  to  its  distribution  ? 

Mr.  Butler.  When  I want  you  to  put  my  questions  I will  send 
you  notice  through  the  newspapers. 

Mr.  Shattuck.  I shall  not  wait  for  any  such  notice  on  your 
part  when  I want  to  understand  your  meaning. 

Q.  Now  I want  to  call  your  attention  to  this : Assuming  the 
same  amount  of  rainfall  between  the  first  of  July  and  the  first  of 
October,  on  the  same  area,  in  the  same  river,  the  Sudbury  and  the 
Concord  in  a given  number  of  years,  without  any  known  difference 
in  the  way  of  using  the  water  by  the  dam  and  reservoir,  would 
not  you  expect  the  same  relative  results  ? 

A.  No,  sir  ; I should  not. 

Q.  Why  not? 

A.  Because  the  flow  of  water  in  a stream  is  made  up  from  two 
sources ; that  which  falls  immediately  during  the  time  that  you 
are  making  the  observation,  and  that  which  is  supplied  from  gen- 
eral drainage  throughout  the  territory  into  the  river.  Now  if  that 
storage  basin  that  is  beneath  the  surface  of  the  earth  is  high  in  one 
season,  the  flow  from  the  river  will  be  great.  If  it  is  low  in  one 
season  the  flow  from  the  river  will  be  small.  The  rainfall  may  be 
precisely  the  same.  All  the  other  differences  you  have  named  will 
be  precisely  the  same.  There  will  be  the  difference  in  the  flow  of 
the  stream. 

Q.  Would  you  not  expect  an  average  result  from  those  years? 
Is  there  any  reason  why,  on  an  average,  that  basin  below  the  earth 
should  be  different  one  year  from  another  ? 

A.  You  have  prevented  our  taking  that  into  account.  As  I 
understand  it,  you  have  limited  it. 

Q.  Not  at  all.  Let  me  go  back  a little.  Do  you  assume  that 
that  storage  basin  which  is  under  the  earth,  where  water  is  held  by 
the  earth  in  a substantially  constant  quantity  in  the  same  river  in 
the  same  year,  dependent  on  the  rainfall  ? 

A.  It  is  dependent  upon  the  rainfall  for  a considerable  anterior 
period  ; for  some  time  before  the  time  that  you  observe. 

Q.  Would  you  not  expect  it  in  a dry  season  to  show  itself  in 
three  months  in  each  year  ? 

A.  No,  sir ; I should  not.  I think  the  effect  of  the  under- 
ground drainage  is  distributed  over  a much  longer  time  than  that. 

Q.  Well,  suppose  the  amount  not  only  in  the  three  months 
should  be  the  same,  but  the  substantial  amount  of  rainfall  in  the 
year  should  be  the  same,  should  you  not  expect  then  the  storage 
to  be  substantially  a constant  quantity  ? 

A.  I think  that  is  dependent  somewhat  upon  the  quality  of 
the  material.  It  would  be  the  same,  perhaps,  in  some  drainage 
areas,  but  it  might  not  be  in  others. 


904 


Belvidere  Mills. 


Q.  I am  talking  of  drainage  area  in  the  same  river,  in  the  same 
place,  with  the  same  rainfall  upon  it? 

A.  Yes,  sir.  You  misunderstood  me,  also.  I am  talking  of 
the  same  drainage  area  in  the  same  river.  What  might  be  true  in 
one  drainage  area,  which  was  the  same  in  these  various  years  you 
are  considering,  might  not  be  true  in  another. 

Q.  Compare  the  same  drainage  area  in  the  same  river,  would  it 
not  remain  a constant  quantity  with  the  same  amount  of  water  fall- 
ing each  year? 

A.  I think  not  necessarily,  i.  e.,  the  time  in  one  drainage  area 
might  extend  beyond  the  year,  when  in  another  it  would  not. 

Q.  That  may  be  true  ; but  take  the  same  drainage  area? 

A.  I do  take  the  same  drainage  area. 

Q.  No,  no  ; you  and  I don’t  understand  each  other.  I take  the 
Concord  river,  and  in  twenty  years  the  same  rainfall  in  each  year 
on  its  drainage  area.  Do  you  expect  it  to  deliver  the  same  quan- 
ta of  water? 

A.  Yes,  sir.  If  I understand  your  question  now,  I should  ex- 
pect the  same  drainage  area  with  the  same  rainfall,  distributed  the 
same,  in  the  same  time,  and  in  the  same  manner  in  each  year  for 
twenty  years.  I should  expect  the  discharge  to  be  the  same. 

Q.  Would  you  not  expect  the  same  discharge  of  this  basin? 

A.  If  the  rain  was  distributed  in  the  same  time.  If  it  fell  at 
different  times,  I should  expect  the  discharge  to  be  different. 

Q.  You  would  expect  the  whole  amount  to  be  different? 

A.  Not  the  whole  amount,  but  the  amount  that  flows  during 
this  dry  season  that  we  are  talking  about. 

Q.  I am  trying  to  get  at  the  year,  but  you  put  me  off  with  the 
dry  season  ! 

A.  I have  no  disposition  to  evade  your  question. 

Q.  I want  to  get  at  what  should  make  a difference  in  this 
storage  basin  in  different  years  — the  same  storage  basin  in  the 
same  river  in  different  years  — so  that  it  would  make  different  re- 
sults in  each  year.  If  you  can  tell  me  anything,  tell  me  what 
it  is. 

A.  Yon  have  the  same  drainage  area,  and  you  have  the  same 
annual  rainfall  upon  it.  Now,  of  the  rainfall,  which  we  will 
assume  to  be  40  inches  in  each  year,  if  20  inches  occurred  before 
Jul}r  in  one  jTear,  you  would  have  one  discharge,  and  if  30  fell 
before  July  you  would  have  another  discharge. 

Q.  Precisely  so.  How  much  do  you  think  that  discharge  would 
be  affected? 

A.  It  is  a question  of  fact  that  belongs  to  each  case. 

Q.  Assume  that  you  have  30  inches  in  one  }’ear  between 
January  and  July,  and  the  other  3'ear  }*ou  have  20  inches,  and  the 
water  has  run  off  in  the  spring,  as  it  usually  does.  How  much 
difference  do  you  suppose  it  would  make?  Would  it  be  \ differ- 
ence, or  £ difference,  or  4 difference? 

A.  That  depends  upon  the  particular  drainage  area. 

Q.  Take  the  same  drainage  area.  Take  the  Concord,  which 
you  know  about. 

A.  I don’t  think  I am  sufficiently  acquainted  with  the  under- 


Testimony  of  J.  H.  Shedd. 


905 


ground  territory  there  to  give  you  a definite  formula  for  a propor- 
tion. It  is  a question  of  fact  that  requires  accurate  knowledge, 
and  I do  not  possess  sufficiently  accurate  knowledge  in  reference 
to  that  territory  to  give  such  a result. 

Q.  Now,  would  you  not  value  more  as  a result,  in  reference  to 
the  ascertaining  of  the  relative  amount  of  water  which  one  stream 
affords  another,  to  have  in  a dry  time  an  accurate  measurement  of 
both  streams,  and  to  know  just  what  one  puts  into  the  other,  and 
then  reason  from  that  as  to  how  it  would  be  the  next  year,  and  the 
next,  and  for  the  average  number  of  years,  than  3rou  would  any 
other  means  of  getting  at  it? 

A.  No,  sir.  It  would  be  a valuable  indication  to  have  an  accu- 
rate measurement  of  the  sort  you  describe.  But,  if  that  indication 
was  different  from  what  you  had  derived  by  general  acquaintance 
with  the  subject  and  with  the  territory ; if  that  result  was  con- 
trary  to  what  you  would  expect  from  the  knowledge  that  had  been 
obtained  from  numerous  other  cases  — I should  say  there  was  some 
peculiarity  in  that  measurement,  and  that,  therefore,  it  was  not 
worthy  of  great  confidence,  and  that  it  should  extend  over  a 
greater  time  in  order  to  furnish  a fair  basis  for  estimate. 

Q.  The  only  peculiarity  you  would  find  would  be  the  shortness 
of  it? 

A.  Largely  the  shortness  of  it. 

Q.  Suppose  }rou  had  it  for  three  3rears? 

A.  That  would  increase  its  value. 

Q.  Suppose  we  had  the  exact  measurement  of  the  Sudbur3T,  and 
the  exact  measurement  of  the  Concord,  if  it  were  possible,  for  a 
period  of  three  years,  what  would  you  say  as  to  that  as  being 
more  valuable? 

A.  The  value  of  that  observation  would  be  very  much  increased 
over  that  for  one  year. 

Q.  Don’t  you  think  that  under  such  circumstances  that  would 
be  the  most  accurate  means  of  determining  the  amount  of  water 
the  Sudbury  gave  to  the  Concord  in  the  dry  season  ? 

A.  That  is  a question  of  comparison.  I don't  think  I can  say 
now  which  I should  regard  as  the  most  important.  That  is  cer- 
tainly valuable  information,  and  would  be  entitled  to  a great  deal 
of  credit. 

Q.  And  more  so  if  you  were  confident  that  the  measurements 
were  accurate^  made? 

A.  Certainly  ; I should  rely  upon  its  being  accurate^  made  to 
entitle  it  to  any  confidence  at  all.  But  still  if  there  was  a conflict 
between  that  and  general  information  upon  the  subject,  I should 
wish  to  make  a careful  consideration  of  the  whole  matter  before  I 
relied  upon  it  for  any  important  enterprise. 

Q.  Now,  then,  assume  this,  Mr.  Shedd,  that  the  measurement 
of  the  Sudbury  had  shown  in  such  a ratio  to  the  rainfall  for  three 
years  on  the  territory.  Would  not  you  expect  that  that  would  be 
substantially  constant  in  the  Sudbury? 

A.  Well,  no,  I think  not. 

Q.  Why  not? 

A.  Well,  the  Cochituate  basin  is  a part  of  the  Sudbury  basin. 


906 


Belvidere  Mills. 


The  measurements  that  have  been  made  there  show  that  the  per- 
centage of  water  collectable  in  that  basin  has  varied  from  60  per 
cent,  of  the  rainfall,  as  I remember  it,  down  to  25  per  cent.  In 
one  year  there  has  been  only  25  per  cent,  of  that  rainfall  col- 
lectable into  the  Cochituate.  Now  you  might  select  three  con- 
tinuous years  that  would  be  very  unreliable,  and  would  not  be  a 
fair  average. 

Q.  Is  there  ai^  continuous  three  years  of  that  sort? 

A.  I have  not  made  an  examination  that  I remember,  so  that  I 
can  answer  that  question ; but  I presume  that  there  may  be  three 
continuous  years  selected.  That  would  not  be  a fair  average  for 
a long  period. 

Q.  Then  you  must  infer  that  there  is  something  very  curious 
about  the  water-shed  of  the  Cochituate  ? 

A.  No,  sir ; I think  that  the  water-shed  of  the  Cochituate  has 
only  the  same  degree  of  curiousness  that  many  water-sheds  have. 
They  are  all  curious. 

Q.  That  is,  they  are  so  different  from  one  another,  that  it  is 
very  difficult  predicting  upon  them  what  they  will  do  in  the  way  of 
collecting  water,  I suppose? 

A.  Well,  there  are  variations,  of  course  ; and  when  you  wish  to 
engage  upon  an  investigation  of  how  much  it  would  yield,  all  the 
considerations  must  be  taken  into  account ; and  when  you  have 
made  up  a judgment,  it  is  only  an  approximate  one,  but  it  may 
be  a reasonably  approximate  one. 

Q.  Finding  that  the  Cochituate  varies  with  the  rainfall,  — varies 
from  25  to  60  per  cent.,  — and  finding  that  as  a part  of  the  Sudbury 
rainfall,  you  might  well  conclude  that  the  Sudbury  would  do  the 
same,  might  you  not? 

A.  Other  portions  of  the  Sudbury  might  not  be  of  the  same 
character  as  the  19  miles  that  are  drained  into  the  Cochituate.  It 
would  depend  somewhat  on  the  character  of  the  territory. 

Q.  But  if  you  should  find  this : that  there  had  been  a sub- 
stantially uniform  percentage  of  water  yielded  to  the  Sudbury 
river  from  the  rainfall  each  year,  — yon  would  assume,  without 
knowing  any  other  thing  about  it,  that  that  would  continue  for  the 
average  of  years? 

A.  The  longer  you  continued  these  experiments,  the  more 
valuable  it  would  be  as  a general  indication. 

Q.  But  you  would  assume  that  three  years  would  give  a valua- 
ble average? 

A.  That  would,  as  I say,  be  a valuable  indication  of  what  the 
average  would  be. 


Re-direct. 

Q.  (By  Mr.  Shattuck.)  Do  you  know  an}r  other  reason  for  a 
higher  minimum  in  a large  stream  than  in  a small  one,  than  that 
its  contributions  come  from  a larger  area,  and  therefore  furnish  a 
higher  average? 

A.  No,  sir  ; no  more  than  that  on  the  larger  area  you  have  the 
various  different  characteristics  of  drainage  area  blended  together; 


Testimony  or  John  Stott. 


907 


so  that  where  you  would  have  a loss  in  one  you  would  make  it  up 
by  a gain  in  another,  so  that  the  average  would  be  more 
uniform. 

Mr.  Shattuck.  You  stated  to  the  commissioners,  Mr.  Butler, 
that  these  two  deeds  that  you  examined  didn’t  contain  any  water 
privileges.  But  on  looking  them  through  you  will  see  that  they 
do  contain  water  privileges  and  mill  privileges. 


John  Stott,  sworn . 

Q.  (By  Mr.  Shattuck.)  I should  like  to  ask  you  with  refer- 
ence to  the  use  of  steam  in  your  mill  — the  Belvidere  No.  1. 
What  do  you  manufacture  there? 

A.  Blankets. 

Q.  You  have  an  engine  there? 

A.  Yes,  sir. 

Q.  Whether  you  use  that  exhaust  steam"  from  the  engine  for 
dyeing? 

A.  Yes,  sir. 

Q.  Whether  you  have  ever  attempted  to  use  the  exhaust  steam 
for  dyeing  purposes  ? 

A.  When  we  put  in  this  new  so-called  Harris-Corliss  steam  en- 
gine, the  builder  made  us  believe  we  could  use  the  exhaust  steam 
for  dyeing  purposes,  and  we  put  in  an  arrangement  which  he  pro- 
vided for  that  purpose ; but  we  didn’t  use  it  more  than  one  day 
before  we  pronounced  it  a failure. 

Q.  Why?  Would  it  not  work? 

A.  Because  the  greater  portion  of  our  goods  we  dye  scarlet,  and 
we  have  found  that  the  condensed  steam  — the  extra  length  of  time 
the  cloth  is  to  be  in  the  vat  to  dye  scarlet  before  it  was  dyed — the 
condensed  steam  would  so  condense  the  cochineal  and  dyestuff, 
as  to  materially  alter  the  state  of  the  scarlet. 

Q.  So  where  you  dye  scarlet  you  cannot  use  the  steam  from  the 
exhaust,  but  must  have  it  from  the  boiler  ? 

A.  Yes,  sir  ; that  is  our  experience.  I don’t  mean  to  say  that 
the  exhaust  might  not  be  used  for  wood  colors,  but  not  for 
cochineals,  for  that  requires  a greater  heat,  and  exhaust  steam  does 
not  produce  the  greater  heat  that  is  produced  for  scarlet;  and  so  in 
scouring  wool  the  exhaust  steam  is*  not  hot  enough,  and  it  puts  so 
much  condensed  steam  into  the  kettle  for  boiling  wools,  that  it 
materially  reduces  the  strength  of  the  liquids. 

Q.  How  as  to  using  it  in  your  mill  for  heating  purposes  ? Have 
you  used  it  for  that? 

A.  We  came  to  the  conclusion  that  it  would  require  as  much 
more  pressure  on  the  boiler  to  work  the  back-pressure  occasioned 
by  using  the  exhaust  steam  in  the  mill  for  heating  purposes,  that 
we  should  not  be  any  the  gainer  by  it  in  a mill  of  that  size  and 
that  construction  for  heating  purposes,  i.  e.,  the  steam-pipes  being 
all  so  small  that  we  considered  that  it  requires  from  twenty-five  to 
thirty  pounds  pressure  on  the  boiler  at  any  rate  to  get  the  steam 
through,  and  we  should  have  to  get  so  much  more  pressure  on  the 


908 


Belvidere  Mills. 


boiler  to  work  the  back-pressure,  if  we  had  any  exhaust  steam  to 
use. 

Q.  You  find,  then,  that  with  a mill  of  your  size,  and  applied  to 
your  business,  you  could  not  use  exhaust  steam  for  dyeing  the 
wool,  washing  or  heating? 

A.  That  is  our  experience,  and  we  don’t  use  it. 

Q.  How  much  have  you  used  of  your  auxiliary  power  during 
the  last  three  months  generally  — during  the  time  since  the  taking 
of  the  water  by  the  city? 

A.  Well,  unless  it  has  been  after  a rainfall  — a rainfall  affects 
the  Concord  river,  so  that  it  would  last  perhaps,  according  to  the 
rainfall,  three  or  four  days.  Perhaps  we  might  not  use  the  engine 
at  all  for  that  period,  and  then  when  it  falls  away,  we  shall  have 
to  be  prepared  to  use  the  engine,  and  have  to  use  it  an  hour  or 
two  in  the  morning  and  an  hour  or  two  in  the  forenoon,  or  the 
greater  part  of  the  afternoon. 

Q.  That  has  been  so  for  the  last  three  months  ? 

A.  Yes,  sir. 

Q.  I should  like  to  ask  you  as  to  Belvidere  No.  1.  In  the  pur- 
chase in  1832  they  purchased  land  and  water? 

A.  Yes,  sir ; it  was  conveyed  to  Mr.  Stott.  It  was  bought 
ostensibly  for  the  Belvidere  Company.  It  was  bought  by  him  and 
conveyed  to  the  company.  That  was  the  intention  at  the  time. 
The  Belvidere  Company  took  possession  of  it.  It  was  bought  by 
Charles  Stott  with  the  intention  of  conveying  to  the  Belvidere 
Company. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  Your  uncle,  Charles  Stott,  bought  the 
site  and  built  the  mill,  didn’t  he? 

A.  No,  sir.  If  my  recollection  serves  me  right,  the  convey- 
ance was  made  before  the  mill  was  built — the  land  and  the  water 
privilege. 

Q,  Do  you  know  what  he  paid  for  the  land  and  water  privi- 
lege? 

Mr.  Shattuck.  I object  to  that. 

Mr.  Butler.  I insist  upon  the  question. 

A.  I could  not  say. 

Mr.  Shattuck.  It  is  too  remote  to  be  of  any  value. 

Q.  What  did  it  cost  to  build  the  mill? 

A.  I could  not  tell  y'ou  that  without  referring  to  my  books. 

Q.  You  can  tell  by  referring  to  the  books,  can’t  you? 

A.  I can  give  }tou  an  approximation.  There  are  one  or  two 
contracts  that  are  specified  ; but  I don’t  think  we  could  get  at  the 
exact  cost  of  everything. 

Q.  Within  how  near  can  you  get  at  it? 

A.  You  mean  of  the  mill  No.  2 alone,  without  the  land  and  ma- 
chinery and  water  privilege? 

Q.  Yes,  sir  ; I think  you  could  get  at  that  pretty  near  what  it 
cost.  I guess  you  remember  near  enough  for  my  purpose. 

A.  I would  not  undertake  to  say,  General. 


Testimony  of  John  Stott. 


909 


Q.  I wish  you  would  let  me  know,  if  you  have  the  means.  Did 
it  cost  over  eleven  thousand  dollars  to  build  it? 

A.  Yes,  sir. 

Q.  How  much  more? 

A.  1 will  not  undertake  to  give  the  figures.  I don’t  propose  to 
give  the  figures,  because  I have  not  charged  my  mind  with  them, 
and  it  is  a good  many  years  ago,  and  I should  have  to  refer  to  my 
books  to  give  anything  like  the  exact  figures. 

Q.  Give  me  the  exact  figures  of  the  cost  of  the  mill  alone,  and 
bring  them  down  when  we  meet  here  again.  Now,  how  many  days 
in  the  year  do  you  run  your  engine,  or  did  you  when  you  put  it  in, 
before  the  water  was  taken,  during  the  last  five  years,  in  No.  1 
mill? 

A.  It  was  put  in  there  on  account  of  short  water,  although  it 
has  never  been  run. 

Mr.  Shattuck.  He  has  answered  that  once. 

A.  For  how  long  a period  do  you  mean  — for  one  y^ear  back? 

Q.  No,  no  ! Before  the  water  was  taken, — say  before  1872, — 
how  much  on  an  average  did  you  run  your  engine  for  No.  1 mill 
before  1872, — before  the  water  was  taken  at  all  by  the  city?  The 
first  water  taken  was  in  1872.  Now  will  you  answer  the  ques- 
tion ? 

A.  That  is  back  four  years  from  this.  Well,  I should  say,  with- 
out being  obliged  to  give  exact  figures,  as  near  as  my  recollection 
serves, — I know  there  was  a period  along  there  of  several  years, 
for  five  or  six  years  back,  that  the  water  had  been  so  abundant 
that  it  excited  remark  from  those  interested  there. 

Q.  Just  give  me  the  reason  for  it.  How  much  time  was  it? 

A.  Perhaps  a month  during  the  year. 

Q.  When  did  you  put  in  the  new  Corliss  engine? 

A.  In  1871  or  ’72.  It  was  when  Mr.  Stott  was  gone  to  En- 
gland, I know.  I forget  whether  it  was  1871  or  ’72. 

Q.  The  old  gentleman  is  well,  I trust? 

A.  Yes,  sir;  for  an. old  geutleman. 

Q.  Bright  and  smart? 

A.  Yes,  sir. 

Q.  He  built  all  the  mills,  and  knows  all  about  it,  does  he  not? 

A.  Yes,  sir  ; I presume  so. 

Q.  And  is  a practical  manufacturer,  and  uses  steam,  and  knows 
a good  deal  more  about  it  than  you  do? 

A.  I presume  he  does. 

Q.  Do  you  know  any  reason  why  they  don’t  call  him  down  here 
to  testify  ? 

A.  No,  sir,  I do  not.  It  was  because  they  did  not  want  him,  I 
guess. 

Q.  That  is  the  very  reason,  I guess ; you  and  I hit  it  exactly 
alike.  And  do  you  take  your  steam  for  heating  out  of  one  of  the 
boilers  that  runs  the  engine? 

A.  Yes,  sir. 

Q . Under  what  pressure  do  you  use  your  steam  for  heating 
purposes  when  the  engine  is  not  on,  and  when  you  are  not  likely 
to  use  the  engine? 


910 


Belvidere  Mills. 


A . Thirty  or  forty  pounds  of  steam,  or  forty-five  pounds.  It 
may  vary  ten  or  fifteen  pounds  during  the  day.  It  may  run  up  to 
fifty  pounds,  probably,  at  some  periods  of  the  day.  It  depends 
upon  the  weather  also.  In  cold  weather  we  run  up  to  sixty 
pounds. 

Q.  Under  what  pressure  do  you  run  your  engine  ? 

A.  Seventy  or  eighty  pounds. 

Q.  Is  the  amount  of  that  pressure  necessary  to  force  the  heat 
through  your  steam-pipes  ? 

A.  Not  to  force  the  heat  through  the  steam-pipes.  Any  man 
would  know  that. 

Q.  To  force  your  steam  through  and  get  the  requisite  quantity 
of  heat  ? 

A.  No,  sir  ; it  does  not  require  seven t}^  pounds  pressure  to  force 
steam  through  the  pipes  for  regular  heating  purposes. 

Q.  I asked  you  what  pressure  you  run  when  using  steam  for 
heating? 

A.  I say  when  the  engine  is  not  on  it  varies  from  thirty-five  to 
fifty  pounds. 

Q.  Undoubtedly ; and  do  you  use  it  in  that  way  because  it  is 
necessary  to  use  it  so? 

A.  Well,  you  have  to  have  steam  for  d}^eing  purposes.  It  is  all 
used  from  one  place.  The  steam  is  drawn  for  dyeing  purposes  and 
heating  purposes  and  for  dressing  purposes. 

Q.  I am  coming  to  that.  You  don’t  first  take  your  steam 
through  the  heating  apparatus  for  dyeing  purposes,  but  take  it 
direct^  from  the  boiler? 

A.  Yes,  sir. 

Q.  Suppose  you  are  not  dyeing,  but  only  heating,  does  it  make 
any  difference  ? 

A.  Yes,  sir:  there  would  be  some  difference.  We  should  not 
keep  so  high  a pressure  of  steam  on. 

Q.  Then  you  require  that  high  pressure  for  dyeing?  Is  that  so? 

A.  I said  we  should  not  keep  so  high  a pressure  if  we  were  not 
using  the  steam  for  dyeing  purposes. 

Q.  And  the  high  pressure  you  do  use  is  for  the  purpose  of 
dyeing? 

A.  We  put  it  up  to  a higher  pressure  than  we  should  if  we  were 
not  dyeing  with  the  steam.  You  can  draw  }Tour  own  inference 
from  that. 

Q.  You  and  I understand  each  other  perfectly  upon  that.  Very 
well,  now,  your  scarlet  dye,  I suppose,  is  made  with  a liquid  in 
water  ? 

A.  Yes,  sir. 

Q.  And  you  cannot  heat  that  water  with  the  exhaust  steam  hot 
enough  you  say  ? 

A.  That  is  what  I have  said. 

Q.  How  many  degrees,  about,  do  you  have  to  get  the  dye  up 
to? 

A.  Well,  we  leave  that  entirely  with  the  d3Ter. 

Q.  I understand  that  you  do ; but  how  many  degrees  of  heat 
does  he  want? 


Testimony  of  John  Stott. 


911 


A.  Well,  I cannot  say  — not  to  be  exact  about  it. 

Q.  State  nearly. 

A.  Somewhere  in  the  neighborhood  of  200  degrees  F ahrenheit.  I 
should  say  that  it  may  be  more  or  less  than  that.  I would  not  say 
positively. 

Q.  And  you  say  the  exhaust  steam  will  not  heat  up  to  that? 

A.  I said  that  was  our  experience  on  that.  I said  we  had  tried 
it,  and  1 remember  it. 

Q.  Now  another  thing.  Your  scarlet  dye  is  the  same  as  that 
used  in  bunting.  Is  the  scarlet  that  is  required  for  flannel  and 
what  they  require  for  bunting  the  same? 

A.  I have  nothing  to  do  with  their  requisites  for  bunting.  It 
may  require  a stronger  heat  for  bunting  than  for  flannel.  I pre- 
sume it  does. 

Mr.  Shattuck.  Is  the  dye  the  same  for  bunting  as  for  flannel? 

Mr.  Butler.  They  are  both  made  of  wool  — the  bunting  of  a 
little  coarser  wool  than  the  flannel. 

Q.  The  Corliss  people  recommended  you  to  use  the  exhaust 
steam,  didn’t  they? 

A.  Mr.  Harris  did.  It  is  a Corliss  engine  built  by  Mr.  Harris. 

Q.  And  you  did  use  the  exhaust  steam  for  dyeing  for  a while, 
or  attempted  to  use  it,  but  you  could  not  use  it  for  heating  at  all. 
Well,  was  not  your  trouble  that  you  had  very  little  occasion  to  run 
37our  engine,  — so  that  you  would  have  your  exhaust  steam  for  only 
a very  few  days  in  the  year,  while  you  wanted  the  heat  for  nine 
months  in  the  year  ? 

A.  The  exhaust  steam  was  not  to  be  depended  upon  to  heat  the 
mill  with.  There  would  be  some  days  when  we  would  not  use  the 
engine  at  all,  and  we  would  still  want  to  heat  the  mill. 

Q.  That  is  why  I asked  you  how  you  run  it.  You  would  heat 
the  mill  nine  months  in  the  year. 

Re-direct. 

Q.  (B}r  Mr.  Shattuck.)  What  is  about  the  value  of  the  No.  1 
Belvidere  property  — the  whole  of  it  there — dependent  on  the 
water-power  ? 

Mr.  Butler.  I object.  I don’t  think  he  has  the  requisite 
knowledge  to  testify  about  that.  I will  not  object  to  the  old  gen- 
tleman’s testifying  if  he  is  called. 

Q.  How  old  is  the  old  gentleman  ? 

A.  Seventy-six. 

Q.  On  these  matters  which  you  have  testified  about,  you  under- 
stand that  his  views  are  not  different  from  3rours  in  any  way? 

A.  I don’t  know  how  they  can  be. 

Q.  He  is  very  likely  to  talk  a good  deal,  and  if  examined  by 
Gen.  Butler  would  start  off  and  talk? 

A.  I mean  to  say  that  I don’t  know  why  he  and  I would  be 
inclined  to  think  differently  with  regard  to  Belvidere.  I don’t 
know  what  his  thoughts  are,  I am  sure. 

Q.  (By  Mr.  Butler.)  The  difference  is  that  he  built  it,  and 
you  didn’t? 


912 


Belvidere  Mills. 


A.  No,  sir ; there  are  other  parties  concerned  with  building  it 
whom  you  do  not  get  hold  of. 

Q.  (By  Mr.  Shattuck.)  I press  the  question.  I think  that 
upon  the  whole  this  witness  knows  as  much  about  the  rules  of  it 
as  any  one? 

Mr.  Butler.  I don’t  think  he  is  competent  to  testify  about  it 
at  all. 

Q.  How  long  have  you  been  there? 

A.  Fifteen  years. 

Q.  You  know  about  the  business  done  in  the  mill,  do  you? 

A.  Yes,  sir. 

Q.  You  understand  in  regard  to  the  financial  exhibits?  So  far 
as  they  are  concerned,  you  know  as  much  as  any  one,  don’t  you? 

A.  The  General  thinks  I do  not. 

Q.  I didn’t  ask  the  General’s  opinion,  but  yours? 

A.  I should  not  presume  to  say  that  I know  as  much  as  any 
one  else. 

Q.  You  were  brought  up  in  the  mill? 

A.  Yes,  sir. 

Q.  You  take  charge  of  this  whenever  it  is  necessary? 

A.  Yes,  sir. 

Q.  You  have  watched  the  building  of  mills? 

A.  Yes,  sir. 

Q.  You  have  been  there  over  twenty  years  ? 

A.  About  twenty-four  years,  on  and  off. 

Q.  I suppose  mills  have  hardly  ever  been  bought  and  sold  there, 
have  they? 

A.  Not  much,  under  my  knowledge.  Mills  do  not  very  often 
change  hands  there. 

Q.  This  is  owned  by  a corporation,  I understand,  and  not  by  an 
individual.  Can  you  tell  us  about  the  fair  value  of  that  first  Bel- 
videre property? 

Mr.  Butler.  This  is  not  in  answer  to  any  part  of  my  cross- 
examination. 

Q.  Will  you  state  the  value? 

A.  In  that  question  I understand  }rou  to  mean  the  value  of  the 
property  dependent  upon  this  mill  machinery  and  privilege.  There 
is  other  property  in  the  same  yard  which  is  Belvidere  property. 
All  the  adjacent  property  owned  by  the  company  that  depends 
upon  this  mill,  or  is  rather  the  outgrowth  of  this  mill,  is  what  you 
mean.  Oh,  it  would  be  somewhere  in  the  vicinity  of  $100,000  — 
take  it  all. 

Q.  Now  take  Belvidere  No.  2,  and  all  the  property  and  machin- 
ery connected  with  it.  What  is  the  value  of  that? 

Mr.  Butler.  I will  object  to  that. 

Mr.  Shattuck.  I thought  you  wanted  to  know  about  it  a minute 
ago. 

Mr.  Butler.  I persist  in  objecting  that  you  persist  in  putting 
in  evidence  when  I want  to  go  away. 

Mr.  Shattuck.  I have  nothing  more  to  ask.  I will  put  in  the 
deeds. 


Testimony  of  John  Stott. 


913 


Re-cross. 

Q.  (By  Mr.  Butler.)  What  is  the  property  taxed  for? 

Mr.  Shattuck.  I object. 

Commissioner  Russell.  As  a substantive  fact  the  tax  value 
is  not  admissible ; but  I cannot  say  that  General  Butler  should 
not  ask  that  question  on  cross-examination. 

Mr.  Shattuck.  Can  he  ask  this  witness  in  cross-examination 
what  another  man  thinks  of  his  property  ? 

Commissioner  Russell.  The  witness  having  given  an  opinion 
as  to  the  value  of  a piece  of  property,  we  think  it  is  within  the 
limits  of  cross-examination  for  the  counsel  to  ask  him  what  the 
tax  value  is. 

Mr.  Shattuck.  I appeal  to  the  chairman  to  say  whether  that 
was  ever  known  in  the  trial  of  these  land  cases,  to  allow  either 
directly  or  indirectly  the  tax  value  of  property  to  be  got  in.  1 
never  knew  it  to  be  got  in  in  cross-examination  or  otherwise.  I 
am  speaking  of  practice  within  my  own  knowledge,  and  that  of  the 
chairman,  whether  it  is  not  one  of  those  things,  within  the  discre- 
tion of  the  court  undoubtedly,  but  which  will  have  such  a tendency 
to  influence  the  minds  of  the  jury  by  getting  in  incompetent  evi- 
dence, that  counsel  are  never  allowed  to  ask  them? 

Commissioner  Russell.  It  would  not  have  the  slightest  influ- 
ence upon  my  mind  in  showing  the  real  value  of  the  property  ; but 
the  answer  might  have  some  influence  to  show  the  capacity  of  the 
witness. 

Q.  What  is  it  taxed  for? 

A.  I don’t  know. 

Mr.  Shattuck.  That  is,  it  is  not  taxed  by  Lowell,  but  by  the 
State  of  Massachusetts.  Now  I will  proceed  to  prove  this  title,  if 
I can. 

Q.  (By  Mr.  Shattuck.)  They  were  in  possession  of  these 
mills  — I mean  the  Belvidere  No.  1 Company — and  have  been  for 
some  time? 

A.  Mr.  Stott  has  been  owner  there  somewhere  in  the  vicinity, 
for  forty  years. 

Q.  How  far  back  have  you  known  their  relationship  to  it? 

A.  This  so-called  company  was  chartered  in  1853.  They  were 
in  possession  of  this  property  at  that  time  — not  all  of  the  prop- 
erty. What  I testified  to  in  relation  to  the  $100,000  was  not  all 
in  at  that  time. 

Mr.  Shattuck.  I first  put  in  the  deed  of  Walter  Farnsworth  to 
Charles  Stott  and  the  Belvidere  Company,  bearing  date  the  15th 
day  of  November,  1853  ; the  original  lias  been  burned,  but  this  is 
good  enough.  It  is  twenty  years  old.  Mill  No.  1.  This  contains 
a description  of  some  lots  of  land,  which  are  immaterial,  because 
they  do  not  carry  any  water ; and  they  are  a little  back,  and  I 
don’t  care  to  read  them.  The  first  description  is  of  a certain  other 
lot  of  land,  situated  in  said  Lowell,  on  the  east  side  of  Concord 
river,  with  a stone  building  thereon.  [Reads  description.]  Now, 


914 


Belvidere  Mills. 


I propose  before  describing  the  other  parts  of  the  deed,  to  put  in 
the  deed  of  Warren  and  Alpheus  Smith. 

Mr.  Butler.  Pardon  me,  I think  we  had  better  have  one  deed 
at  a time. 

Mr.  Shattuck.  [Reads  rest  of  the  deed.]  The  Eager  lot  is 
the  one  where  the  measurement  was  — the  first  one  sold  to  Warren, 
Barry  & Park.  Then  we  have  beside  that  all  the  real  estate 
comprehended  in  the  fourth  clause  of  the  descriptive  part  of  the 
deed  of  Farnsworth  to  Stott,  u subject  to  all  the  restrictions  in 
said  deed  contained,  with  all  buildings  now  standing  on  said  real 
estate,  and  all  propert}^  covered  by  said  descriptive  deed,”  etc., 
etc.  Those  three,  therefore,  contain  \\  less  2\  — 

Mr.  Butler.  I object  to  this  continual  statement  of  the  case. 

Commissioner  Russell.  I understand  Mr.  Shattuck  to  mean 
that  by  this  description  he  proposes  to  show  that  such  property 
is  intended  to  be  included  bjr  [such  description]  the  reference  in 
the  deed. 

Mr.  Shattuck.  I have  read  all  the  parts  that  are  material 
bearing  upon  this  water-power.  If  the  gentleman  wants  to  read 
other  parts  he  can  do  so.  The  deed  will  be  printed. 

Mr.  Butler.  In  consideration  of  $10,000  to  them  paid  by  the 
Belvidere  Company,  not  only  all  the  water-power  that  they  have, 
but  all  the  buildings  and  a large  quantity  of  other  land  is  con- 
veyed. If  the  deed  is  printed  I am  content. 

Mr.  Shattuck.  It  was  conveyed  to  a corporation,  in  which 
Mr.  Stott  took  stock.  In  the  next  place,  I put  in  the  deed  of 
Joseph  Church,  Leonard  Church,  and  George  Ripley  to  the  Belvidere 
Company,  bearing  date  September  22d,  1864.  It  conveys  lots  2, 
3,  4 and  5,  and  part  of  lot  6,  on  this  land,  which  I now  indicate  on 
this  plan.  [Reads  the  descriptive  part  of  the  deed,  and  explains 
the  location  from  the  plan.]  Now,  to  show  what  the  water  con- 
nection with  that  is,  I refer  to  the  same  land  as  described  in  the 
deed  from  Warren,  Barry  & Park  to  Clement.  The  works  are 
also  described.  The  same  description  of  the  land  is  given,  and 
with  it  is  conveyed  ^ part  of  the  water  in  Concord  river.  We 
put  in  a deed  of  a certain  mill,  and  its  privileges  and  appurten- 
ances. Then  we  find  the  same  land  previousl}’-  conveyed  b}r  a deed, 
recorded,  in  which  the  same  property  is  described  ; and  the  appur- 
tenances, so  far  as  the  water  is  concerned,  is  described  as  and 
that,  in  the  absence  of  evidence  to  the  contrary,  is  evidence  tend- 
ing to  show  the  appurtenances. 

Mr.  Butler.  For  the  purpose  of  showing  what  is  conveyed  in 
another  deed,  to.  show  that  another  person  conve}Ted  to  somebody 
else  a certain  thing ! I never  heard  of  that  being  put  in  in  such  a 
case  before. 

Mr.  Shattuck.  This  deed  is  in  our  chain  of  title. 

Mr.  Butler.  Whenever  the  chain  is  made,  I don’t  care  to  ob- 
ject to  it. 

Mr.  Shattuck.  We  have  put  in  now  a warranty  deed,  and  we  also 
prove  possession  under  it,  and  that  makes  out  a title,  prima  facie. 
Now  those  deeds,  — some  of  them  direct^  and  some  indirectly,  — 
refer  to  other  deeds  for  the  identification  of  the  land.  And  I pro- 


Testimony. 


915 


pose  to  put  in  some  deeds  here,  which  are  in  the  chain  of  title,  and 
in  which  that  land  is  described,  for  the  sole  purpose  of  identif}dng 
the  land,  and  also  for  the  purpose  of  defining  that  conveyance, 
without  putting  in  the  whole  chain  of  title. 

Mr.  Butler.  I have  no  further  interest  in  this  title,  if  this  can 
be  done. 

Commissioner  Russell.  Why  not  put  in  the  whole  chain  of 
title  ? 

Mr.  Shattuck.  There  is  no  difficulty  except  in  the  quantity  of 
deeds.  We  have  a list  of  all  the  deeds  here. 

Mr.  Butler.  The  difficulty  is  that  nobody  knows  where  this 
title  is.  We  have  got  to  pay  somebody,  and  after  we  have  paid 
you,  under  the  presumption  that  you  own  T9^V.  Then  the  Nesmith 
heirs  and  Mr.  Holt  and  another  gentleman  will  come  in  here  and 
prove  just  as  clear  as  light  that  they  own  about  A 5 and  then  the 
Middlesex  will  come  in  and  insist  that  they  own  29^-.  Well,  we 
don’t  want  to  pay  it  more  than  once.  Therefore  1 want  you  to 
prove  your  title.  I prefer  to  have  you  make  up  your  case,  rather 
than  to  have  to  make  it  up  myself. 

Commissioner  Russell.  The  difficulty  is,  Mr.  Shattuck,  that 
ordinarily  proof  of  a conveyance,  and  of  possession  under  it,  is 
prima  facie  proof  of  title,  and  that  when  you  undertake  to  show  a 
conveyance  which  does  not  specify  the  amount  of  water,  or  the 
proportionate  amount  of  water,  that  goes  with  the  land,  your 
proof  of  possession  does  not  tend  to  show  the  possession  of  any 
specific  or  any  proportionate  quantity  of  water,  and  therefore 
does  not  make  out  your  title  to  your  water-rights  — although  it 
may  make  out  your  title  to  your  land. 

Mr.  Butler.  And  we  have  not  touched  your  land.  Therefore 
I admitted  the  land  and  denied  the  water.  I knew  you  owned  the 
land,  and  I did  not  want  to  interfere  ; but  I did  not  know  that  you 
owned  the  water,  and  I wanted  you  to  prove  it. 

Mr.  Shattuck.  Then  we  will  go  on  and  prove  the  title. 

The  first  deed  is  Farnsworth  to  Stott  and  the  Belvidere,  marked 
“ 1 ; ” the  second  is  Church  and  others  to  the  Belvidere,  marked 
“ 2.”  Now,  I put  in  the  deed  marked  “ 3,”  referred  to  in  the  first 
description,  being  the  same  lot  of  land  conveyed  by  Richard  War- 
ren and  others  to  Alpheus  Smith  — the  deed  dated  October  1st, 
1832.  Now,  I will  put  that  deed  in.  In  the  description  there  is 
a reference  to  this  deed.  [Reads  the  descriptive  part  and  explains 
from  the  plan.] 

Now,  for  convenience,  I may  as  well  put  in  the  deed  marked 
“ 4,”  of  Thomas  Heard,  of  Chelmsford,  to  Winthrop  Howe,  bear- 
ing date  the  first  day  of  May,  1821.  [Reads  the  descriptive  part 
of  the  deed.] 

Know  all  men  by  these  Presents , That  I,  Thomas  Hurd,  of 
Chelmsford,  in  the  County  of  Middlesex  and  Commonwealth  of 
Massachusetts,  gentleman,  in  consideration  of  two  thousand  five 
hundred  dollars,  paid  by  Winthrop  How,  of  the  same  Chelmsford, 
clothier,  the  receipt  whereof  I do  hereby  acknowledge,  do  hereby 
give,  grant,  sell  and  convey  unto  the  said  Winthrop  How,  his  heirs 


916 


Belvidere  Mills. 


and  assigns,  a certain  tract  of  land,  with  the  buildings  thereon, 
situate  in  Tewksbury,  in  said  county,  near  the  mouth  of  Concord 
river,  containing  ten  acres  (be  the  same  more  or  less),  bounded, 
beginning  at  the  northeast  corner  at  said  Concord  river,  by  the 
land  of  Edward  St.  Loe  Livermore,  Esq.  ; thence  running  south 
5°  east  twenty-nine  rods  of  the  land  of  said  Livermore  twenty- 
nine  rods  to  the  road  leading  to  Tewksbury  : thence  crossing  said 
road  to  the  end  of  the  fence  ; thence  south  7°  east  five  rods  ; thence 
south  1 west  thirteen  rods  ; thence  south  16J°  west  nine  rods  and 
five-tenths ; thence  south  66°  west  five  rods  and  eight-tenths  ; 
thence  south  29°  east  five  rods  and  two-tenths,  to  said  Con- 
cord river ; thence  down  said  river  to  the  bounds  first  men- 
tioned, with  the  privileges  thereunto  belonging,  excepting  the 
mill  privilege  where  the  old  saw-mill  now  stands,  the  said  Hurd 
reserving  to  himself,  his  heirs  and  assigns  a right  to  erect  and 
maintain  a dam  across  said  river,  above  said  saw-mill,  where  the 
dam  now  stands ; and  also  a right  to  draw  and  use  the  whole  of 
the  water  of  said  river  above  said  dam,  at  his  the  said  Hurd’s  fac- 
tory, on  the  west  side  of  said  river.  To  have  and  to  hold  the 
aforegranted  premises  to  the  said  Winthrop  How,  his  heirs  and 
assigns,  to  his  and  their  use  and  behoof  forever.  And  I do  cove- 
nant with  the  said  Winthrop  How,  his  heirs  and  assigns,  that 
I am  lawfully  seized  in  fee  of  the  afore-granted  premises,  that 
they  are  free  from  all  incumbrances,  that  I have  good  right  to  sell 
and  convey  the  same  to  the  said  Winthrop  How.  And  that  I will 
warrant  and  demand  the  same  premises  to  the  said  Winthrop  How, 
his  heirs  and  assigns  forever,  against  the  lawful  claims  and 
demands  of  all  persons. 

In  witness  whereof,  I,  the  said  Thomas  Hurd,  have  hereunto  set 
my  hand  and  seal,  this  thirty-first  day  of  May,  in  the  }Tear  of  our 
Lord  one  thousand  eight  hundred  and  twenty-one.  Thomas  Hurd 
and  seal. 

Signed,  sealed  and  delivered  in  presence  of  us,  Nathaniel  Wright, 
Levi  Felton. 

Middlesex,  ss.  June,  19,  1821. 

Then  the  above-named  Thomas  Hurd  acknowledged  the  above 
instrument  to  be  his  free  act  and  deed.  Before  me, 

NATHANIEL  WRIGHT, 

Justice  of  the  Peace. 

Middlesex,  ss.,  Oct.  15,  1822.  Received  and  recorded  by 

WM.  F.  STONE,  Reg . 

A true  cop}'  of  record,  book  243,  page  324. 

Attest : CIIAS.  B.  STEVENS,  Reg. 

This  was  a conveyance  of  property  on  the  east  side,  Heard 
reserving  to  himself  the  right  to  erect  and  maintain  a dam  across 
the  river  above  the  old  saw-mill.  That  seems  to  give  him  all  the 
water  of  the  river,  and  the  right  to  build  a saw-mill.  That  I will 
put  in. 


Testimony. 


917 


Here  is  an  indenture  of  the  same  date  as  the  last,  between 
Thomas  Heard  and  Winthrop  Howe,  dated  the  31st  day  of  May, 
1821.  That  is  marked  k‘  5.” 


This  indenture,  made  this  thirty-first  dajr  of  May,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  twenty-one,  between 
Thomas  Hurd  of  Chelmsford,  in  the  County  of  Middlesex  and 
Commonwealth  of  Massachusetts,  gentleman,  of  the  one  part,  and 
Winthrop  How  of  the  same  Chelmsford,  clothier,  of  the  other  part, 
witnesseth  that  the  said  Thomas  Hurd,  in  consideration  of  the 
sum  of  one  thousand  dollars  to  him  paid  by  the  said  Winthrop, 
the  receipt  whereof  the  said  Thomas  Hurd  doth  hereby  acknowl- 
edge, hath  given,  granted,  bargained,  and  sold,  and  by  these 
presents  doth  give,  grant,  sell,  and  convey  unto  the  said  Winthrop 
How,  his  heirs  and  assigns,  forever  a right  to  build  any  mill  or 
mills  on  the  east  side  of  Concord  river  below  the  milldam  running 
from  said  Hurd  factory  on  the  west  side  of  said  river  to  the  east- 
erly side  thereof ; also  a privilege  to  draw  and  use  the  water  from 
the  mill-pond  above  said  dam  for  the  purpose  of  carrying  said  mill 
or  mills,  the  said  Hurd  reserving  to  himself,  his  heirs  and  assigns, 
the  first  and  exclusive  right  to  the  use  of  sufficient  water  from  said 
pond  to  carry  a fulling-mill  and  three  bust-wheels,  each  twelve 
feet  in  diameter  and  fifteen  feet  in  length,  with  the  machinery  and 
works  that  may  be  attached  to  or  connected  with  the  same.  To 
have  and  to  hold  the  aforegranted  premises  to  him,  the  said  Win- 
tbrop  How,  his  heirs  and  assigns.  And  the  said  Thomas  Hurd 
does,  for  himself,  his  heirs  and  assigns,  covenant  and  agree  with 
the  said  Winthrop  Howr,  his  heirs  and  assigns,  that  he  will  always 
hereafter  maintain  and  keep  in  good  repair  the  aforesaid  milldam 
at  his,  the  said  Hurd’s,  own  expense,  and  at  his  own  expense  erect 
a flume  ten  feet  in  length  and  eight  feet  wide,  near  the  east  end  of 
said  milldam,  and  keep  the  same  in  repair.  And  the  said  Win- 
throp How  does  for  himself,  his  heirs  and  assigns,  covenant  and 
agree  with  the  said  Thomas  Hurd,  his  heirs  and  assigns,  that  he 
or  they  will  not  draw  or  use  any  of  the  water  from  the  aforesaid 
mill-pond  when  there  is  not  sufficient  head  of  water  in  said  pond 
to  carry  a fulling-mill  and  three  bust-wheels  as  aforesaid,  or  in  any 
way  deprive  the  said  Hurd  of  the  first  and  exclusive  right  to  the 
use  of  the  water  in  said  mill-pond  as  hereinbefore  reserved. 

In  witness  whereof  the  said  partis  have  hereunto  set  their  hands 
and  seals  the  day  and  year  above  written.  Thomas  Hurd,  and  seal, 
Winthrop  How,  and  seal. 

Signed,  sealed,  and  delivered  in  presence  of  us : Nathaniel 

Wright,  Levi  Felton. 

Middlesex,  ss.  June  19,  1821. 

Then  the  above-named  Thomas  Hurd  acknowledged  the  above 
instrument  to  be  his  free  act  and  deed.  Before  me, 

NATHANIEL  WRIGHT, 
Justice  of  the  Peace. 


918 


Belvidere  Mills. 


Middlesex,  ss. 

Received  and  recorded  by 


Oct.  15,  1822. 
WM.  F.  STONE,  Reg. 


A true  copy  of  record,  book  243,  page  325. 


Attest : 


CHAS.  B.  STEVENS,  Reg. 


Mr.  Butler.  The  reservation  of  the  saw-mill  still  stands,  with 
the  privilege  thereof. 

Mr.  Shattuck.  That  is  a question  of  law,  which  we  can  dis- 
cuss at  any  time. 

Commissioner  Russell.  You  claim  that  the  title  to  the  water  is 
in  you,  under  this  indenture? 

Mr.  Shattuck.  Yes,  sir  ; I have  no  doubt  about  it  in  my  own 
mind.  Then  I put  in  a deed  marked  “ 6,”  from  W.  Howe  and  H. 
G.  Howe : — 

Know  all  men  by  these  presents , That  I,  Winthrop  How,  of 
Tewksbury,  in  the  County  of  Middlesex  and  Commonwealth  of 
Massachusetts,  yeoman,  in  consideration  of  four  thousand  dollars 
paid  me  by  Harrison  G.  How,  of  the  same  Tewksbury,  manufac- 
turer, the  receipt  whereof  I do  hereby  acknowledge,  do  hereby, 
give,  grant,  sell,  and  convey  unto  the  said  Harrison  G.  How  a cer- 
tain piece  or  parcel  of  land,  with  the  buildings  thereon  situate,  in 
said  Tewksbuiy,  containing  one  acre  and  one  hundred  and  three 
rods,  bounded  as  follows,  viz. : beginning  at  the  southeasterly 
corner  thereof  at  a stake  and  stones  at  Concord  river,  thence  run- 
ning north  forty-seven  degrees  west  four  rods  and  nineteen  links 
to  a stake  and  stones ; thence  north  thirteen  degrees  west  four 
rods  and  twenty-two  links  on  land  of  Daniel  T.  Curtis,  to  a stake 
and  stones  ; thence  north  eleven  degrees  west  seven  rods  and  five 
links  on  the  said  Curtis’  land  to  a stake  and  stones  ; thence  north 
three  degrees  west  six  rods  and  twenty  links  on  land  of  Windsor 
How,  to  a stake  and  stones ; thence  north  eighty-six  and  one-half 
degrees  west  eight  rods  and  one  link  on  said  Winthrop  How’s 
other  land  to  a stake  and  stones ; thence  south  twelve  and  one- 
half  degrees  west  twenty-three  rods  and  five  links  on  said  Win- 
throp’s  other  land  to  the  mill-dam  ; thence  easterly  to  the  bound 
first  mentioned,  together  with  the  mill  privilege  and  all  other  priv- 
ileges and  appurtenances  to  the  same  belonging.  To  have  and  to 
hold  the  afore-granted  premises  to  the  said  Harrison  G.  How,  his 
heirs  and  assigns,  to  his  and  their  use  and  behoof  forever ; and  I 
do  covenant  with  the  said  Harrison  G.  How,  his  heirs  and  assigns, 
that  I am  lawfully  seized  in  fee  of  the  afore-granted  premises,  that 
they  are  free  of  all  incumbrances,  that  I have  good  right  to  sell 
and  convey  the  same  to  the  said  Harrison  G.  Howe ; and  that  I 
will  warrant  and  defend  the  same  premises  to  the  said  Harrison 
G.  How,  his  heirs  and  assigns,  forever,  against  the  lawful  claims 
and  demands  of  all  persons. 

In  witness  whereof,  1,  the  said  Winthrop  How,  and  Lydia,  the 


Testimony. 


919 


wife  of  the  said  Winthrop,  who  hereby  releases  all  right  to  dower 
in  said  premises,  have  hereunto  set  our  hands  and  seals  this 
twenty -third  day  of  October,  in  the  year  of  our  Lord,  one  thou- 
sand eight  hundred  and  twenty-eight.  Winthrop  How,  and  seal, 
Lydia  Howe,  and  seal. 

Signed,  sealed  and  delivered  in  the  presence  of  us:  Nathaniel 

Wright,  Luther  Marshall,  Christopher  Flanders,  Freeman  Howe. 

Middlesex,  ss.  October  23d,  1828. 

Then  the  above-named  Winthrop  How  acknowledged  the  above 
instrument  to  be  his  free  act  and  deed  before  me. 

NATHANIEL  WRIGHT, 
Justice  of  Peace. 

Middlesex,  ss.,  Dec,  5,  1828.  Received  and  recorded  by 

WM.  F.  STONE,  Reg. 

A true  copy  of  record,  book  285,  page  62. 

Attest:  CHAS.  B.  STEVENS,  Reg. 

Mr.  Butler.  I should  like  to  have  the  descriptive  parts  of 
these  deeds  printed. 

Mr.  Shattuck.  In  each  deed  let  such  portions  as  either  coun- 
sel desires  to  have  printed,  be  marked. 

Here  is  the  Curtis  deed.  [Reads  description.] 

If  we  are  obliged  to  locate  these  deeds,  I shall  have  to  ask  Mr. 
Parkman  to  give  me  his  plan,  so  that  I can  locate  them  again. 

Commissioner  Russell.  Can’t  you  get  the  deeds  for  this  whole 
chain  of  title  before  the  next  meeting? 

Mr.  Shattuck.  We  have  references  to  all  the  deeds  — showing 
the  whole  chain  of  title.  If  Gen.  Butler  prefers  to  have  them,  we 
can  produce  them. 

[. Adjourned  to  Wednesday , Oct.  25 , at  9 J o'clock,  A.  M.~\ 


920 


Bel  vide  re  Mills. 


Continuation  of  Title  of  Belvedere  Mills. 

Know  all  men  by  these  Presents , That  I,  Harrison  G.  Howe,  of 
Tewksbury,  in  the  County  of  Middlesex  and  Commonwealth  of 
Massachusetts,  manufacturer,  in  consideration  of  twenty  thousand 
dollars  to  me  paid  by  Richard  Warren,  Samuel  F.  Barry  and 
Thomas  B.  Park,  all  of  Boston,  in  the  County  of  Suffolk  and 
Commonwealth  aforesaid,  merchants,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  give,  grant,  bargain,  sell  and  convey 
unto  the  said  Richard  Warren,  Samuel  F.  Barry  and  Thomas  B. 
Park  and  their  heirs  and  assigns  forever,  a certain  piece  or  parcel 
of  land  with  the  buildings  thereon,  situated  in  said  Tewksbur}', 
containing  one  acre  and  one  hundred  and  three  rods,  bounded  as 
follow's,  viz.  : Beginning  at  the  southeasterly  corner  thereof  at  a 
stake  and . stones  at  Concord  river ; thence  running  N.  47°  W. 
four  rods  and  nineteen  links  to  a stake  and  stones  ; thence  N.  13° 
W.  four  rods  and  twenty-two  links  on  land  of  Daniel  T.  Curtis, 
now  or  formerly  to  a stake  and  stones;  thence  N.  11°  W.  seven 
rods  and  five  links  on  land  now  or  formerly  of  said  Curtis  to  a 
stake  and  stones ; theuce  N.  3°  W.  six  rods  and  twenty  links  on 
land  now  or  formerly  of  Windsor  Howe,  to  a stake  and  stones ; 
thence  N.  86 J°  W.  eight  rods  and  one  link  on  the  land  now  or 
late  of  Mr.  Winthrop  Howe,  to  a stake  and  stones ; thence  S. 
12J°  W.  twenty-three  rods  and  five  links  on  land  now  or  formerly 
of  said  Winthrop  Howe  to  the  milldam  ; thence  easterly  to  the 
bound  first  mentioned,  together  with  the  mill  privilege  and  all  other 
rights , easements,  privileges  and  appurtenances  to  the  same  belong- 
ing; intending  hereby  to  convey  the  same  property  which  was  con- 
veyed to  me  by  Winthrop  Howe  bjT  his  deed  recorded  with 
Middlesex  Deeds,  book  285,  page  63.  The  premises  are  subject 
to  a mortgage  given  to  secure  the  payment  of  three  thousand 
dollars  made  by  me  to  Winthrop  Howe,  on  the  third  day  of 
December,  A.  D.  1828,  and  recorded  as  aforesaid,  book  285, 
page  64,  the  amount  due  on  said  mortgage  forming  a part  of  the 
consideration  of  this  conve3Tance.  To  have  and  to  hold  the  above- 
granted premises  to  the  said  Richard,  Samuel  and  Thomas,  and 
their  heirs  and  assigns,  to  their  use  and  behoof  forever.  And  I, 
the  said  Harrison,  for  myself  and  my  heirs,  executors  and  admin- 
istrators, do  covenant  with  the  said  Richard,  Samuel  and  Thomas, 
and  their  heirs  and  assigns,  that  I am  lawfully  seized  in  fee  of  the 
afore-granted  premises ; that  the}T  are  free  from  all  incumbrances 
except  said  mortgage  to  Winthrop  Howe  ; that  I have  good  right 
to  sell  and  convey  the  same  to  the  said  Richard,  Samuel  and 
Thomas,  and  their  heirs  and  assigns  forever  as  aforesaid  ; and  that 
I will,  and  my  heirs,  executors  and  administrators  shall  warrant 
and  defend  the  same  to  the  said  Richard,  Samuel  and  Thomas, 
and  their  heirs  and  assigns  forever,  against  the  lawful  claims  and 
demands  of  all  persons  except  those  claiming  under  said  mortgage 
to  Winthrop  Howe. 

In  witness  whereof  I,  the  said  Harrison  G.  Howe,  together  with 
Caroline  Howe,  my  wife,  who  executes  these  presents  in  token  of 


Belvidere  Mills. 


921 


her  relinquishing  all  right  of  dower  in  the  premises,  have  here- 
unto set  our  hands  and  seals  this  second  day ‘of  January,  in  the 
year  of  our  Lord  eighteen  hundred  and  thirty-two.  H.  Gr.  Howe 
(seal),  Caroline  Howe  (seal). 

Signed,  sealed  and  delivered  in  presence  of  us : Samuel  F. 
Haven,  Samuel  S.  Lawrence. 

Commonwealth  of  Massachusetts.  Middlesex,  ss. 

Lowell,  January  3,  1832. 

Then  personally  appeared  the  above-named  H.  G-.  Howe  and 
acknowledged  the  above  instrument  to  be  his  free  act  and  deed 
before  me, 

WM.  HILLIARD,  Jr., 

Justice  of  the  Peace. 

Middlesex,  ss.  January  3,  1832. 

Received  and  recorded  by 

WM.  F.  STONE,  Reg. 

A true  copy  of  record,  book  310,  page  51. 

Attest:  CHAS.  B.  STEVENS,  Reg. 


Lib.  269,  fol.  211. 

Dated  April,  3d,  1826.  Rec.  July  25th,  1826. 

Winthrop  Howe  to  Abraham  Howe.  $1,000. 

“ A piece  of  land  in  Belvidere  Village,  in  Tewksbury  aforesaid, 
bounded  : Beginning  at  a stake  and  stones,  thence  running  twenty- 
one  feet  southerly,  to  a stake  and  stones ; thence  easterly  about 
four  rods,  to  a stake  and  stones ; thence  northerly  twenty-one 
feet,  to  a stake  and  stones ; thence  westerly  four  rods  to  the  first 
bound. 

“ Also  another  piece  situate  in  Belvidere  Village  : Beginning  at  a 
stake  and  stones,  thence  running  one  hundred  and  two  feet  south- 
erly, to  a stake  and  stones ; thence  easterly  fifty  feet,  to  a stake 
and  stones  ; thence  northerly  eighty-five  feet,  to  a stake  and 
stones ; thence  westerly  thirty-six  feet,  to  the  first  bound,  with 
the  building  thereon,  with  a privilege  or  use  to  the  water  in  case 
there  shall  be  more  than  sufficient  to  carry  my  factory  or  wheels,  as 
they  now  are,  and  the  grist-mill.” 

Hab.  in  fee.  Full  warranty. 

Lib.  269,  212.  April  3d,  1826.  July  25th,  1826. 

Winthrop  Howe  to  Windsor  and  Jeroboam  Howe.  $2,000. 

u A piece  of  land  situate  in  Belvidere,  in  Tewksbury  aforesaid, 
bounded  : Beginning  at  a stake  and  stones  at  land  of  William 
Wyman,  thence  westerly  four  rods,  to  a stake  and  stones ; thence 
southerly  seventy-one  feet,  to  a stake  and  stones ; thence  easterly 
about  four  rods,  to  a stake  and  stones  ; thence  northerl}’-  seventy- 
one  feet,  to  the  first  bound. 

“ Also  another  piece  in  Belvidere  aforesaid  : beginning  at  an 
old  stump  about  sixteen  feet  from  the  northeast  corner  of  the 


922 


Belvideke  Mills. 


mill,  thence  northerly  on  land  of  James  Smith  and  J.  G.  Kit- 
tredge,  as  the  fenc4  now  stands,  eleven  rods  and  eighteen  links,  to 
a stake  and  stones ; thence  westerly  four  rods,  to  an  apple-tree  ; 
thence  northerly  about  twelve  feet  to  a stake  and  stones,  to  land  I 
have  this  day  conveyed  to  Abraham  Howe  ; thence  westerly  about 
four  rods,  on  land  of  said  Abraham,  to  a stake  and  stones ; thence 
south  about  twelve  rods  to  land  I have  this  day  conveyed  to  said 
Abraham ; thence  easterly  thirty-six  feet,  to  a stake  and  stones ; 
thence  southerly  eighty-five  feet,  to  a stake  and  stones ; thence 
westerly  fifty  feet,  to  a stake  and  stones  ; thence  southeasterly 
about  ten  rods,  to  a stake  and  stones  ; thence  northerly  nine  rods 
and  fourteen  links,  to  the  first  bound,  with  the  building  thereon, 
including  the  grist-mill  and  barn,  with  a privilege  to  the  water 
when  there  is  more  than  enough  to  carry  my  factory  wheels,  as 
they  now  are.” 

Hab.  in  fee.  Full  warranty. 

Lib.  280,  470.  May  12th,  1828.  May  13th,  1828. 

Abraham  Howe  to  Daniel  T.  Curtis.  $125. 

“ A piece  of  land  situated  in  Tewksbury  aforesaid,  in  Belvidere 
Village  so  called,  bounded  as  follows  : Beginning  at  a stake  at  the 
northwest  corner  of  the  premises  which  makes  the  southwest  of  a 
lot  of  land  now  owned  by  Windsor  and  Jeroboam  Howe,  thence 
running  nearly  south  twenty  feet,  to  the  inside  of  the  north  wall 
of  the  sluiceway  leading  from  the  grist-mill ; thence  running  east- 
erly by  said  wall,  as  it  now  stands,  thirty-eight  feet,  to  a stake ; 
thence  running  north  fifteen  feet,  to  a stake  by  land  of  said  Wind- 
sor and  Jeroboam ; thence  westerly,  by  land  of  said  Windsor  and 
Jeroboam  to  the  bound  first  mentioned,  together  with  the  build- 
ing, used  as  a blacksmith’s  shop,  on  the  premises,  be  the  same 
more  or  less.” 

Hab.  in  fee,  with  all  privileges  and  appurtenances. 

Lib.  280,  471.  May  12th,  1828.  May  13th,  1828. 

Abraham  Howe  to  Daniel  T.  Curtis.  $1,500 

“ A piece  of  land  lying  and  situate  in  Belvidere  Village,  in  said 
Tewksbury,  bounded  as  follows : Beginning  at  the  northwest 
corner  of  the  premises  to  be  conveyed,  making  the  southwest 
corner  of  a lot  of  land  conveyed  to  me  this  day  by  said  Abraham, 
thence  running  easterly  to  a stake  and  stones,  thirty-eight  feet ; 
thence  running  southerly,  by  land  conveyed  to  me  this  da}7  by 
Windsor  and  Jeroboam  Howe,  to  a stake  seventy  feet;  thence 
westerly,  as  by  deed  of  said  Windsor  and  Jeroboam,  fifty  feet  to  a 
stake  and  stones  ; thence  north  eighty-two  feet  to  the  first  bound, 
said  distance  from  bound  to  bound,  be  the  same  more  or  less,  with 
the  buildings  thereon,  together  with  the  privilege  of  drawing  water, 
as  conveyed  to  me  by  deed  of  Winthrop  Howe,  dated  April  3d, 
1826,  and  recorded  with  Middlesex  Deeds,  lib.  269,  fol.  211.” 

Hab.  in  fee.  Full  warranty. 

Lib.  280,  fol.  474.  May  12th,  1828.  May  13th,  1828. 

Windsor  and  Jeroboam  Howe  to  Daniel  T.  Curtis.  $1,800. 

“ A certain  tract  or  parcel  of  laud  lying  in  Tewksbury  aforesaid, 


Belvidere  Mills. 


923 


and  situated  in  Belvidere  Village,  so  called,  bounded  as  follows,  to 
wit : Beginning  at  a stake  at  the  northwest  corner  of  the  premises 
which  makes  the  southwest  corner  of  land  of  said  Windsor  and 
Jeroboam,  thence  running  south  one  hundred  and  one  feet  to  a 
stake,  by  land  conveyed  to  me  this  day,  by  Abraham  Howe  ; thence 
running  easterly,  thirty-six  feet,  to  a stake  ; thence  running  south, 
by  land  of  said  Abraham  Howe,  eighty-five  feet,  to  a stake  ; thence 
westerly,  by  said  Abraham  Howe’s  land,  fifty  feet,  to  a stake ; 
thence  southerly,  eighty  feet,  to  a stake ; thence  southeasterly, 
seventy-eight  feet,  to  a stake  and  stones  by  land  of  Captain 
Nathan  Hunting;  thence  running  by  said  Hunting’s  land,  and  land 
of  James  Smith,  one  hundred  and  sixty  feet,  to  an  old  oak  stump ; 
thence  running  northerty  by  land  of  J.  G-.  Kittredge,  and  on  the 
bank  of  what  is  high-water  mark,  one  hundred  and  eighty-two  feet, 
to  a stake  and  stones  by  land  of  said  Windsor  and  Jeroboam  ; 
thence  running  westerly,  by  land  of  said  Windsor  and  Jeroboam, 
one  hundred  and  thirty -five  feet  to  the  bound  first-mentioned,  said 
distance  from  bound  to  bound,  be  the  same  more  or  less,  together 
with  the  grist  mill,  and  all  other  buildings  standing  on  said  prem- 
ises, with  the  privilege  of  using  the  water,  as  conveyed  to  us  by 
Winthrop  Howe,  by  deed  dated  April  3d,  1826,  and  recorded  lib. 
269,  fol.  212.” 

Hab.  in  fee,  with  all  appurtenances  and  privileges. 

Lib.  308,  fol.  486.  Sept.  6th,  1831.  Dec.  31st,  1831. 

Daniel  T.  Curtis  to  Richard  Warren,  S.  F.  Barry,  and  Thomas 
B.  Park.  $7,000. 

u A certain  piece  of  land,  situated  in  that  part  of  Tewksbury 
called  Belvidere,  bounded  as  follows,  viz. : Beginning  at  the  north- 
west corner  of  the  premises  herein  granted,  at  the  point  where  the 
same  joins  the  land  of  Abraham  Howe  on  one  side,  and  Harrison 

G.  Howe  on  the  other,  at  a stake  and  stones  ; thence  running 
south  three  degrees  east  one  hundred  and  sixteen  feet,  by  land  of 

H.  G.  Howe ; thence  south  eight  degrees  east  sixteen  and  a-half 
feet,  by  land  of  said  Howe  ; thence  south  ten  and  a half  degrees, 
east  by  land  of  said  Harrison,  sixty-seven  feet ; thence  south 
seventeen  degrees  east  eight}^-one  feet,  by  land  of  said  Harrison  ; 
thence  south  forty-eight  and  a quarter  degrees  east  seventy-six  feet, 
by  land  of  said  Harrison  ; thence  turning  and  running  north  six 
degrees  west  one  hundred  and  fifty-four  feet,  on  land  of  Charles 
Barber,  H.  G.  Howe,  and  Joseph  Upton  ; thence  north  fifty-two 
and  a quarter  degrees  east  nineteen  feet,  on  land  of  Howe  and 
Upton ; thence  north  twelve  and  a quarter  degrees  east  one 
hundred  and  fifty-four  and  a half  feet,  on  land  of  Hale  Clements, 
and  J.  G.  Kittredge ; thence  turning  and  running  north  eighty- 
three  and  three-quarter  degrees,  west  one  hundred  and  thirty-two 
feet,  on  land  of  said  Abraham  Howe,  to  the  point  begun  at,  mean- 
ing hereby  to  convey  the  same  land  heretofore  by  me  purchased  of 
Abraham  Howe,  and  of  Windsor  and  Jeroboam  Howe,  by  their 
three  deeds  dated  the  12th  May,  1828,  with  all  the  privileges, 
rights,  and  appurtenances  to  said  premises  belonging,  and  how- 
ever the  same  may  be  bounded,  and  be  the  same  more  or  less.” 

Hab.  in  fee.  Full  warranty. 


924 


Belvidere  Mills. 


Belvidere  Mills. 


925 


WINTHROP  HOWE 


H.  G.  HOWE. 


OCTOBER  2 3 1828. 


II  . G . IIOWE 


WARREN,  BARRY  & PARKE, 


January  2,  1832 


926 


Belvidere  Mills. 


Lib.  334,  fol.  9.  Jan.  24th,  1834.  July  1st,  1834. 

Richard  Warren,  Samuel  F.  Barry  and  Thomas  B.  Parke,  to 
Samuel  Whitwell,  George  Bond,  Benjamin  Seaver  and  George 
William  Bond. 

Hab.  in  fee.  Full  warranty,  $25,000. 

“ The  flannel  factory  of  us  the  said  Warren,  Barry  & Park,  with 
the  water  wheels  and  gearing  thereof.  Also  a two-story  red 
building,  lying  southerly  of  said  factory  ; also  a small  bleaching- 
house,  lying  northerly  of  said  factory  ; also  a drjdng  and  dye 
house  on  Mechanic  street,  lying  westerly  of  the  factory,  together 
with  all  the  land  under  and  belonging  to  said  factory,  and  other 
buildings,  intending  to  include  the  land  between  Concord  street 
and  Mechanic  street,  southerly  of  a lot  of  land  formerly  sold  by  us 
to  William  Eager,  together  with  a right  to  draw  and  use  the  water 
of  Concord  river  for  the  purpose  of  carrying  the  works  of  said 
factory  ; but  this  right  is  to  be  exercised  only  when  there  is  suffi- 
cient water  for  the  Middlesex  Company’s  rights.  Also  a two-story 
wooden  dwelling-house,  and  the  land  under  and  belonging  to  the 
same,  situated  on  or  near  Concord  street.  For  a more  full  and 
accurate  description  and  understanding  of  the  premises  hereby  in- 
tended to  be  conveyed,  reference  is  to  be  had  to  a plan  of  property 
of  said  Warren,  Barry  & Park,  drawn  by  A.  Wadsworth,  and 
recorded  with  Middlesex  Deeds,  on  or  about  the  twenty-sixth  day 
of  May,  A.  D.  1832,  which  said  plan  is  hereby  made  a part  of 
these  presents.  Also  the  lots  of  land  in  said  Tewksbury,  repre- 
sented and  numbered  on  said  plan  as  follows,  viz.  : Lot  No.  one, 
containing  about  eleven  thousand  square  feet ; Lot  No.  twelve, 
containing  2,942  square  feet ; Lot  No.  thirteen,  containing  3,869 
square  feet ; and  lots  numbered  respectively  sixteen,  seventeen, 
and  eighteen,  each  containing  thirty-five  hundred  square  feet,  to- 
gether with  all  the  rights,  easements,  privileges,  and  appurten- 
ances to  the  aforesaid  premises  belonging,  meaning  by  these 
presents  to  convey  to  the  said  Whitwell,  Bond,  Seaver  & Bond, 
all  the  right , title  and  interest  ice  have  in  and  to  the  real  estate 
situated  as  aforesaid,  which  we  have  heretofore  purchased  of  H.  G. 
Howe  and  Daniel  T.  Curtis,  and  which  has  not  heretofore  been 
sold,  together  with  the  water  privileges , and  cdl  other  privileges  con- 
nected thereto  not  heretofore  conveyed .” 

Lib.  314,  fol.  347.  March  1st,  1832.  June  18th,  1832. 

Warren,  Barry  and  Parke  to  James  Stewart  and  King  D. 
Stewart.  $1,265.75. 

“ A certain  piece  of  land  in  that  part  of  said  Tewksbury  called  Belvidere 
Village,  bounded  as  follows  : Northerly  by  a lot  numbered  thirteen  on  a 
plan  of  land  belonging  to  said  Warren,  Barry  and  Park,  drawn  by  Alexan- 
der Wardsworth  and  dated  on  the  twrenty-sixth  day  of  May,  eighteen  hun- 
dred and  thirty-two,  to  be  recorded  in  the  records  of  the  Registry  of 
Deeds  for  said  County  of  Middlesex,  on  the  day  of  the  record  hereof; 
easterly  by  Concord  street,  so  called ; southerly  in  part  by  Brown  street 
and  partly  by  lot  numbered  fifteen  on  said  plan ; and  westerly  by  land 
now  or  formerly  of  Winthrop  Howe.  The  premises  hereby  granted  com- 
pose the  lot  numbered  fourteen  on  said  plan  and  contain  four  thousand 
and  sixty-three  square  feet  of  land,  more  or  less,  together  with  a right  to 


Belvidere  Mills. 


927 


use  one  twenty-fifth  part  of  the  water  of  Concord  river  in  common  with 
said  Warren,  Barry  and  Park,  their  heirs  and  assigns  ; but  this  right  is 
to  be  exercised  subject  to  the  rights  following,  that  is  to  say,  only  when 
there  is  sufficient  water  for  the  Middlesex  Company’s  right,  and  also 
for  the  works  of  the  flannel  factory  and  fulling-mill  owned  by  said 
Warren,  Barry  and  Park,  near  the  premises,  as  said  works  now  are,  or 
with  the  substitution  of  an  iron  wheel  similar  to  that  in  the  Middlesex 
Company’s  wooden  building ; and  also  for  the  works  of  Holmes’  card 
and  whip  factory,  together  with  all  the  privileges  and  appurtenances 
to  the  premises  belonging;  reserving,  however,  to  Warren,  Barry  and 
Park  aforesaid,  their  heirs  and  assigns,  a right  to  carry  and  maintain 
two  canals  through  the  premises  wherever  convenient  to  them,  by 
covering  them  up  securely  if  required.” 

Hab.  in  fee. 

Lib.  312,  fol.  540.  April  1st,  1832.  May  19th,  1832. 

Warren,  Barry  & Parke  to  Abijah  Brown,  Samuel  Garland  and 
Jeremiah  Garland.  $990.94. 

“A  certain  piece  of  land,  with  the  buildings  thereon,  situated  in 
that  part  of  said  Tewksbury  called  Belvidere  Village,  bounded  and 
described  as  follows,  viz. : Beginning  at  the  northeast  corner  of 
said  piece,  thence  running  north  eighty-eight  and  one-quarter  de- 
grees west,  on  land  sold  to  Stewart,  seventy-one  feet  and  three 
inches ; south  twelve  and  one-half  degrees  west,  on  land  now  or  late 
of  Winthrop  Howe,  fifty  feet ; south  seventy-six  and  one-half  degrees 
east,  on  land  of  the  grantors,  seventy-feet ; and  thence  running  north 
thirteen  degrees  east,  on  Mechanic  and  Brown  streets,  so  called,  sixty- 
three  feet  and  three  inches, — or  however  otherwise  bounded, — contain- 
ing three  thousand  nine  hundred  and  sixty-three  and  three-quarters 
square  feet,  more  or  less,  being  lot  number  fifteen  on  a plan  of  the 
premises  drawn  by  A.  Wadsworth,  with  all  the  privileges  and  appurte- 
nances thereof;  also  a right  to  use  the  water  of  Concord  river  in  com- 
mon with  twenty-four  other  equal  privileges ; but  this  right  is  to  be 
exercised  only  when  there  is  sufficient  water  for  the  Middlesex  Com- 
pany’s right,  and  also  for  the  works  of  the  neighboring  flannel  factory 
and  fulling-mill  as  they  now  are,  or  with  the  substitution  of  an  iron 
wheel  similar  to  that  in  the  Middlesex  Company’s  wooden  building, 
and  when  there  is  also  sufficient  water  for  the  card  factory  near  the 
premises.  But  we  do  reserve  to  ourselves,  and  our  heirs  and  assigns, 
the  unmolested  right  forever  to  have  a canal  running  through  the 
premises,  the  same  with  or  similar  to  that  now  running  under  the 
building  on  the  land  hereby  conveyed.” 

Hab.  in  fee. 


Lib.  314,  fol.  351.  June  12th,  1832.  June  18th,  1832. 

Warren,  Barry  & Parke  to  Joseph  G.  Kittredge.  $1,350. 

“A  certain  piece  or  parcel  of  land  situated  in  that  part  of  said  Tewks- 
bury called  Belvidere  Village  ; said  lot  or  piece  of  land  contains  fifty-four 
hundred  square  feet,  more  or  less,  and  is  the  same  lot  which  is  numbered 
nineteen  upon  a plan  of  the  premises  and  other  land  belonging  to  said 
Warren,  Barry  and  Park,  drawn  by  Alexander  Wadsworth,  which  plan 
is  dated  on  the  twenty-sixth  day  of  May,  eighteen  hundred  and  thirty- 
two,  and  is  recorded  in  the  records  of  the  Registry  of  Deeds  for  said 
County  of  Middlesex,  on  the  day  of  the  recording  hereof,  together 
with  a right  to  use  two  twenty-fifth  parts  of  the  water  of  Concord  river 
at  the  premises,  in  common  with  said  Warren,  Barry  and  Park,  their 
heirs  and  assigns,  but  this  right  is  to  be  exercised  subject  to  the  rights 


928 


Belvidere  Mills. 


following : that  is  to  say,  only  when  there  is  sufficient  water  for  the 
Middlesex  Company’s  right,  and  also  for  the  works  of  the  flannel  fac- 
tory and  fulling-mill  owned  by  said  Warren,  Barry  and  Park,  near  the 
premises,  as  said  works  now  are,  or  with  the  substitution  of  an  iron 
wheel  similar  to  that  in  the  Middlesex  Company’s  wooden  building, 
and  also  for  the  works  of  Holmes’  card  and  whip  factory,  together 
with  all  other  the  privileges  and  appurtenances  to  the  premises  belong- 
ing; said  Warren,  Barry  and  Park  reserving  a right  to  themselves  to 
take  stone  from  said  lot  to  finish  Mechanic  street  with,  and  to  build  the 
underpinning  for  their  dry-house  on  said  street.” 

Hab.  in  fee. 

Note. — W.,  B.  and  P.  had  previously  conveyed  — 

May  1st,  1832  — Lots  2,  3,  4,  and  5,  to  Hale  Clements,  with  ^ 
Oct.  1st,  1832  — Lots  6,  7,  8,  9,  10,  11,  to  Alpheus  Smith, 

with  ..........  ^6¥ 

Mar.  1st,  1832 — Lib.  314,  fol.  347,  Lot  14,  to  James  Stewart, 

et  al .,  with  . . . . . . . . • 2V 

April  1st,  1832  — Lib.  312,  fol.  540,  Lot  15,  to  Abijah 

Brown,  et  at.,  with.  . . • • • • S'V 

June  12th,  1832  — Lib.  314,  fol.  351,  Lot  19,  to  J.  G.  Kit- 
tredge,  with  ......... 

Jan.  2d,  1832  — Holmes’  card  factory,  to  William  Eager, 

with  10  X . . . . . . . • 2V 

Total 

Lib.  353,  fol.  326.  April  28th,  1835.  June  30th,  1836. 

Whitwell,  Bond  et  al.  to  Walter  Farnsworth,  Eliphalet  Baker 
and  George  Hill.  One  undivided  third  to  each.  $7,366.66. 

Same  premises  as  in  334.9. 

Hab.  in  fee,  with  all  privileges  and  appurtenances  thereto. 

Note.  — For  rest  of  title,  see  deed  of  Farnsworth  et  al.  to  Hart, 
lib.  582,  fol.  176,  given  post. 

Holmes’  Card  and  Whip  Factory. 

Lib.  310,  fol.  103.  Jan.  2d,  1832.  Jan.  23d,  1832. 

Warren,  Barry  & Park  to  William  Eager.  $3,000. 

Hab.  in  fee.  Full  warranty. 

“ A piece  of  land  in  that  part  of  Tewksbury,  in  the  County  of  Mid- 
dlesex and  Commonwealth  aforesaid,  called  Belvidere  Valley,  with 
the  buildings  thereon,  consisting  of  a card  and  whip  factory,  and 
bounded  as  follows,  viz. : Beginning  at  the  southeast  corner  thereof 
and  running  north  87J°  west,  fifty-nine  feet  and  eight  inches  to 
Mechanic  street,  so  called  ; thence  on  said  street  north  13J°  east, 
sevent}T-six  feet  and  seven  inches  to  Brown  street,  so  called  ; thence 
on  said  street  south  87°  east,  four  feet  ten  inches  to  Concord  street ; 
thence  south  2°  west,  seventy-four  feet  and  nine  inches  on  said 
street  to  the  point  of  beginning.  Containing  3.916  square  feet, 
more  or  less,  as  laid  out  on  a plan  drawn  by  A.  Wadsworth,  and 
re-measured  by  John  Bennett,  surveyor,  together  with  a privilege 
to  use  water  from  Concord  river  to  the  amount  of  twenty-four 


Belvidere  Mills. 


929 


square  inches  under  the  present  head  of  water  at  the  place  where 
the  wheel  in  Holmes’  card  factory  now  stands,  meaning  to  grant 
no  more  water  than  will  run  through  said  Holmes’  present  gate 
(which  is  ten  inches  wide)  when  the  same  is  lifted  or  open  two  and 
a half  inches  and  no  more.  But  said  Eager,  his  heirs  and  assigns, 
are  to  have  this  right  only  when  there  is  sufficient  water  for  the 
Middlesex  Company’s  right,  and  also  for  the  works  of  the  flannel 
factory  and  fulling-mill  adjoining  the  premises  as  they  now  are  or 
with  the  substitution  of  an  iron  wheel  similar  to  that  in  the  Mid- 
dlesex Company’s  wooden  building.  The  premises  are  a part  of 
the  property  conveyed  to  us  by  H.  G.  Howe.  We  do  hereby 
reserve  to  us  and  to  our  heirs  and  assigns  the  right  to  have  a canal 
running  through  the  land  or  under  the  building  aforesaid,  the  same 
with  or  similar  to  that  now  running  through  the  premises,  without 
the  hindrance  or  molestation  of  said  Eager  or  his  heirs  or  assigns 
forever.” 

Lib.  811,  fol.  230.  Jan.  2d,  1832.  Feb.  17th. 

Wm.  Eager  to  Warren,  Barry  & Parke.  $2,500. 

Mortgage  of  same  premises. 

Lib.  388,  fol.  546.  Jan.  10th,  1834.  Dec.  27th,  1839. 

Warren,  Barry  & Parke  to  Whitwell,  Bond,  Seaver  & Bond. 

Assignment  of  the  above  mortgage. 

Lib.  422,  fol.  527.  Dec.  5th,  1842.  Jan.  12th,  1843. 

Wm.  Sturgis  to  Walter  Farnsworth,  E.  Baker  and  George  Hill. 

Same  premises  by  similar  description. 

“And  I hereb}'  assign  to  the  said  Farnsworth,  Hill  & Baker 
all  my  right  and  interest  in  and  to  the  said  premises  under  and  by 
virtue  of  a mortgage  made  by  William  Eager  to  Warren,  Barry  & 
Parke,  by  said  Warren,  Barry  and  Parke  assigned  to  White  well, 
Bond  & Co.,  and  by  Whitewell,  Bond  & Co.  assigned  to  me, 
Sturgis,  and  all  benefit  of  possession  and  judgment,  for  the  purpose 
of  foreclosing. 

Hab.  in  fee. 

Lib.  420,  fol.  601.  \ Aug.  17th,  1842. 

Wm.  Eager  became  bankrupt,  and  his  right  of  redemption  from 
the  above  mortgage  was  sold  by  his  assignee  at  public  auction  and 
oought  by  Eager  for  $5. 

Lib.  422,  fol.  526.  Dec.  5th,  1842.  Jan.  12th,  1843. 

William  Eager  to  Farnsworth,  Hill  & Baker.  One  barleycorn 
Q.  C.  of  the  above  described  premises,  in  order  to  perfect  the  title. 

Note.  — For  rest  of  title  see  deed  of  Farnsworth  to  Hart,  lib. 
582,  fol.  176,  given  post. 

Lots  6,  7,  8,  9,  10,  11. 

Lib.  318,  fol.  499.  Oct.  1st,  1832.  Dec.  31st,  1832. 

Warren,  Barry  & Parke  to  Alpheus  Smith,  $3,500. 

Hab.  in  fee.  Full  warrant}7. 

“ Six  pieces  of  land  in  that  part  of  said  Tewksbury  called  Bel- 
videre Village.  Said  lots  or  pieces  of  land  are  numbered  respect- 


930 


Belvidere  Mills. 


ively,  six,  seven,  eight,  nine,  ten,  eleven,  on  a certain  plan  of 
land  belonging  to  us,  drawn  by  Alexander  Wadsworth,  and  bear- 
ing date  on  the  twenty-sixth  day  of  Ma}'  last  and  recorded  with 
Middlesex  Deeds,  to  which  plan  reference  is  to  be  had  for  the 
boundaries  and  dimensions  of  the  premises.  The  above  lots  con- 
tain in  all  fifteen  thousand  seven  hundred  and  sixty-eight  square 
feet  of  land,  more  or  less,  with  all  the  privileges  and  appurtenances 
to  the  premises  belonging,  particularly  the  right  to  use  six  twenty- 
fifth  parts  of  the  water  of  Concord  river  at  the  premises  in  common 
with  said  Warren,  Barry  and  Park,  their  heirs  and  assigns,  but 
this  right  is  to  be  exercised  subject  to  the  previous  rights  follow- 
ing, that  is  to  say,  only  when  there  is  sufficient  water  for  the  Mid- 
dlesex Company’s  right,  and  also  for  the  works  of  the  flannel 
factory  and  fulling-mill  owned  by  us  near  the  premises,  as  said 
works  now  are,  or  with  the  substitution  of  an  iron  wheel  similar  to 
that  in  the  Middlesex  Company’s  wooden  building,  and  also  for 
the  works  of  Holmes’  card  and  whip  factory.  Reserving,  never- 
theless, to  us  and  our  heirs  and  assigns  the  unmolested  right  for- 
ever to  have  a canal  running  through  the  premises,  the  same  with, 
or  similar  to,  the  present  canal  there.  It  is  also  further  provided 
that  said  Smith,  his  heirs  or  assigns,  will  not  suffer  any  iron  water- 
wheel to  be  used  at  the  premises,  but  that  the  wheels  shall  corre- 
spond with  those  used  by  others  having  equal  privileges  near  the 
premises,  and  that  we,  or  our  heirs  or  assigns,  owning  the  flannel- 
mill  aforesaid  shall  have  the  right  to  stop  the  wheels  which  majr  be 
used  at  the  premises  whenever  there  shall  not  be  sufficient  water  in 
Concord  river  for  the  previous  water-rights  aforesaid.  And  also 
said  Smith,  his  heirs  or  assigns,  shall  not  build,  or  suffer  to  be 
built,  any  buildings  on  said  lots  numbered  six,  seven  and  eight, 
within  ten  feet  of  the  easterly  line  of  Concord  street,  it  being, 
however,  agreed  that  we  and  our  heirs  and  assigns  shall  have  the 
right  to  keep  our  flannel  factory  standing  where  it  now  is.” 

Lib.  331,  fol.  159.  Oct.  1st,  1832.  April  5th,  1834. 

Alpheus  Smith  to  Hazen  Elliot.  6727.25. 

“ A certain  piece  of  land  situated  in  said  Tewksbury,  in  Bel- 
videre  Village,  containing  2,911  square  feet,  and  thus  bounded,  to 
wit : Beginning  at  a street  called  Concord  street,  at  the  corner  of 
land  belonging  to  Hale  Clements,  and  thence  running  east  on  said 
Clements’  land  95  feet  3 inches,  thence  southerty  30  feet,  thence 
westerty  parallel  with  the  first-described  bound  about  99  feet  to  the 
street  first  mentioned,  thence  northerly  on  said  street  30  feet  to 
the  point  of  beginning,  with  l-25th  part  of  the  water  in  Concord 
river,  subject,  however,  to  the  restrictions  and  reservations  contained 
in  a deed  of  said  premises  and  other  lands  made  to  me  by  Messrs. 
Warren,  Barry  and  Parke,  bearing  even  date  with  these  presents. 
Said  premises  contain  the  lot  numbered  six  and  about  l-5th  of 
the  lot  number  seven  on  a plan  of  said  premises,  bearing  date 
May  26th,  1832,  recorded  with  the  deeds  of  Middlesex,  to  which 
reference  is  to  be  had  and  allowed.” 

Hab.  in  fee,  with  all  privileges  and  appurtenance^. 


Belvidere  Mills. 


931 


Lib.  341,  fol.  483.  May  25th,  1835.  May  26th,  1835. 

Hazen  Elliot  to  John  Nesmith.  $2,500. 

The  premises  above-described,  with  l-25th  of  the  water.  Hab. 
in  fee. 

Lib.  380,  fol.  311.  Feb.  12th,  1839.  Feb.  27th,  1839. 

John  Nesmith  to  the  Whitney  Mills.  $2,000.21. 

“A  certain  lot  of  land  situated  in  Lowell,  on  the  easterly  side 
of  Concord  river,  with  part  of  a stone  building  standing  thereon, 
being  part  of  the  same  estate  which  was  conveyed  to  Alpheus 
Smith  by  Warren,  Barry  & Park,  by  their  deed  dated  October 
1st,  1832.  The  premises  intended  to  be  included  in  this  convey- 
ance being  lots  No.  6 and  part  of  No.  7,  as  drawn  upon  a lot  of 
lands  belonging  to  Messrs.  Warren,  Barry  & Parke,  drawn  by 
Alexander  Wadsworth,  May  26th,  1832,  recorded  with  Middlesex 
Deeds,  being  the  same  premises  which  Alpheus  Smith  conveyed  to 
Hazen  Elliot,  by  deed  dated  October  1st,  1832,  and  which  said 
Elliot  conveyed  to  me,  by  deed  dated  May  25th,  1835,  subject  to  a 
covenant  with  said  Smith,  dated  May  28tli,  1835,  respecting  the 
unobstructed*  passage  of  water  from  the  wheel  in  said  building 
through  said  premises.” 

Hab.  in  fee,  with  all  privileges  and  appurtenances. 

Lib.  348,  fol.  190.  Nov."28th,  1835.  Rec’d,  ditto. 

Alpheus  Smith  to  Seth*Ames  and  George  Brown.  $10,000. 

Smith  convej^ed  all  his  real  estate,  and  amongst  it  “ another  lot 
of  land  in  said  Belvidere,  near  Concord  river,  with  all  the  water 
privileges  and  appurtenances  belonging  thereto,  and  having  a 
large  stone  building  thereon,  being  the  same  premises  which  were 
conveyed  to  me  in  October,  1832,  by  Warren,  Barry  & Parke, 
except  so  much  thereof  as  I have  heretofore  conveyed  to  Hazen 
Elliot  and  Abner  Ball,  said  estate  being  subject  to  a mortgage 
from  myself  to  said  Warren,  Barry  & Parke,  to  secure  the  sum 
of  $2,800.” 

Hab.  in  fee,  in  trust  nevertheless  for  creditors. 

Lib.  354,  fol.  378.  May  10th,  1836.  July  22d,  1836. 

Seth  Ames  and  George  Brown  to  Josiah  Brown.  $2,200. 

As  assignees  of  Alpheus  Smith,  and  in  pursuance  of  assignment, 
“lot  conveyed  to  Smith  by  Warren,  Barry  & Parke,  with  all 
mill-rights,  privileges,  and  appurtenances,  except  so  much  of 
northerly  part  as  was  conveyed  by  Smith  to  Hazen  Elliot,  and 
by  said  Elliot  to  John  Nesmith.”  Subject  to  mortgage,  etc. 

Hab.  in  fee. 

Lib.  377,  fol.  432.  * Dec.  10th,  1838.  Jan.  2d,  1839. 

B.  F.  Varnum,  adm’t’r  Josiah  Brown,  to  Joel  Stone.  $47. 

Administrator’s  deed  to  pay  debts  pursuant  to  license.  “All 
that  lot  of  land,  with  the  buildings  thereon,  situate  in  said  Lowell, 
in  Belvidere  Village,  at  and  near  Concord  river,  formerly  belonging 
to  Alpheus  Smith,  being  the  same  premises  that  were  conveyed  to 


932 


Belvidere  Mills. 


said  deceased  by  Seth  Ames  and  George  Brown,  assignees  of  said 
Smith,  by  their  deed  dated  May  12th,  1836.  For  a further  descrip- 
tion thereof,  and  all  the  privileges,  water-rights,  easements,  condi- 
tions, restrictions  and  appurtenances  belonging  thereto,  reference 
is  to  be  had  to  said  deeds.” 

Hab.  in  fee,  “ in  the  same  manner  and  upon  the  same  condi- 
tions as  the  same  were  held  by  said  deceased,” 


Lib.  377,  fol.  433.  Dec.  10th,  1838. 

Release  of  dower  by  Phoebe  V.  Brown,  widow  of  Josiah  Brown, 
in  the  above-described  premises.  $10. 


Lib.  377,  fol.  433.  Dec.  10th,  1838.  Jan.  2d,  1839. 

Joel  Stone  to  Seth  Ames.  $53. 

“ The  same  premises  which  were  conveyed  by  Seth  Ames  and 
George  Brown,  as  assignees  of  Alpheus  Smith,  to  Josiah  Brown, 
by  deed,  dated  May  12th  1836,  and  which  were  ^his  day  sold  at 
public  auction  by  B.  F.  Varnum,  as  administrator  upon  the  estate 
of  said  Brown,  now  deceased,  and  pursuant  to  a license  of  the 
Probate  Court  of  this  county,  for  a description  of  the  premises, 
and  of  water-privileges,  easements,  conditions,  and  restrictions 
incident  or  belonging  thereto,  reference  may  be  had  to  said  deed, 
and  also  to  all  other  deeds  referred  to  in  either  of  the  same.” 

Hab.  in  fee. 


Lib.  380,  fol.  309.  Feb.  12th,  1839.  Feb.  27th,  1839. 

Seth  Ames  to  the  Whitney  Mills.  $1,350.58. 

All  of  the  lots  conveyed  by  Warren,  Barry  & Parke  to  Alpheus 
Smith,  except  so  much  as  was  conve}red  to  Hazen  Elliot,  viz. : 
lots  9,  10,  11,  8,  and  part  of  lot  7,  on  Alex.  Wadsworth’s  plan, 
with  water-privileges,  as  in  deed  to  Smith ; and  reference  may  be 
had  to  said  deeds  and  plan  for  a more  particular  description  of  the 
premises,  and  of  the  water  privileges,  etc.” 

Hab.  in  fee.  Warranty  against  all  persons  claiming  under 
Smith. 


Lib.  445,  fol.  178.  April  19th,  1844.  June  20th,  1844. 

The  Whitney  Mills  to  Baker,  Hill  & Farnsworth. 

The  blanket  factor}^,  i.  e.,  same  lot  of  land  as  was  conveyed  by 
Warren,  Barry  & Park  to  Alpheus  Smith,  by  deed  dated  Oct.  1st, 
1832,  excepting  so  much  of  said  lot  as  lies  on  the  north  side  of  a 
line  drawn  across  the  same,  parallel  to  the  north  side  of  said 
building,  and  distant  from  the  same  four  feet ; with  all  the 
privileges,  appurtenances,  water-rights,  et(^,  as  in  said  deed  to 
Smith,  subject  to  right  of  J.  D.  Sturtevant  in  water  and  canal 
across  said  land,  as  conv^ed  to  him  by  deed,  dated  April  2d, 
1844. 

Hab.  in  fee.  Full  warranty. 


Belvidere  Mills. 


933 


Lib.  563,  fol.  509.  May  14th,  1850.  May  21st,  1850. 

Eliphalet  Baker  to  Walter  Farnsworth.  $10,000. 

One  undivided  third  of  the  property  described  in  next  deed. 
Similar  description. 

Hab.  in  fee. 

Lib.  582,  fol.  176.  Nov.  26th,  1850.  Nov.  30th,  1850. 

Walter  Farnsworth  to  Henry  Brown  Hart.  $4,564.54. 

“ Two  undivided  thirds  of  the  following  described  lots  or  parcels  of 
real  estate,  to  wit : A certain  lot  of  land  situated  in  Lowell,  in  the 
County  of  Middlesex  and  said  Commonwealth,  bounded  and  de- 
scribed as  follows,  viz.  : Beginning  at  the  northwest  corner  of  the 
premises  at  land  conveyed  to  me  the  said  Farnsworth,  one  George 
Hill  and  one  Eliphalet  Baker,  by  Samuel  Bond,  George  Bond,  Ben- 
jamin Seaver  and  George  W.  Bond,  being  lot  No.  1 on  the  plan 
hereinafter  mentioned,  and  at  land  now,  or  late,  of  John  Nesmith ; 
thence  running  easterly  about  fifty  feet  to  Fayette  street;  thence 
running  southerly  on  said  street,  on  the  westerly  side  thereof,  about 
thirty-five  feet,  to  land  conveyed  by  Joseph  G.  Kittredge  to  Wilson 
& Coffin,  by  deed  dated  May  9th,  1842  ; thence  running  westerly 
on  said  Wilson  & Coffin’s  land  about  fifty  eight-feet  to  said  Farns- 
worth, Baker  and  Hill’s  land ; thence  running  northerly  on  the  last- 
mentioned  land,  about  thirty-five,  to  the  point  of  beginning.  In- 
tending hereby  to  convey  to  the  said  Hart  two  undivided  third 
parts  of  the  same  premises  conveyed  to  the  said  Baker,  Hill  and 
myself,  b}r  Joseph  G.  Kittredge,  by  deed  dated  May  9th,  1842, 
recorded  in  the  Registry  of  Deeds  for  said  County  of  Middlesex, 
book  420,  page  529.  Also  a certain  other  lot  of  land  situated  in 
said  Lowell,  on  the  east  side  of  Concord  river,  with  a stone  build- 
ing thereon,  formerty  occupied  as  a blanket  factory  by  the  Whitney 
Mills,  being  the  same  lots  of  land  that  were  conveyed  by  Richard 
Warren,  Samuel  F.  Barry  and  Thomas  B.  Park  to  Alpheus  Smith, 
by  deed  dated  October  1st,  1832,  except  so  much  of  said  lot  as  lies 
on  the  north  side  of  said  building,  and  distant  from  the  same  four 
feet,  with  the  privileges,  appurtenances,  and  water-rights  and  priv- 
ileges, and  subject  to  all  the  conditions,  limitations  and  restrictions 
that  are  set  forth  at  large  in  said  deed  to  said  Smith,  to  which,  as 
the  same  is  found  at  large  recorded,  reference  is  to  be  had,  and 
subject  also  to  the  right  J.  D.  Sturtevant,  his  heirs  and  assigns,  in 
the  water  of  said  river  and  in  the  canal  across  said  lot  of  land  to 
the  extent  of  his  portion  of  the  water  as  conveyed  by  said  Whitney 
Mills  to  him,  by  deed  dated  April  3d,  1844.  Intending  hereb}"  to 
convey  to  the  said  Hart  two  undivided  third  parts  of  the  same 
premises,  appurtenances,  and  water-rights  conveyed  by  the  Whit- 
ney Mills  to  said  Baker,  Hill  and  m}Tself,  by  deed  dated  April 
19th,  1844,  recorded  in  Middlesex  Registry  of  Deeds,  book  445, 
page  178.  Also  a certain  other  lot  of  land,  with  the  buildings 
thereon,  situated  in  said  Lowell,  and  thus  bounded  and  described, 
to  wit : Beginning  at  the  northwest  corner  of  the  premises,  at  the 
intersection  of  the  easterly  line  of  Mechanic  street  with  the  south 
line  of  Brown  street ; thence  running  easterly  on  said  Brown  street 
forty-four  feet  to  a street  former!}"  called  Concord  street,  now 


934 


Belyi dere  Mills. 


Howe  street ; thence  southerly  to  said  Howe  street,  sevent}T-four  feet 
and  nine  inches  ; thence  westerly  fifty-nine  feet  and  eight  inches  to 
said  Mechanic  street ; thence  northerly  on  said  Mechanic  street, 
seventy-six  feet  and  seven  inches  to  the  point  of  beginning.  In- 
tending hereby  to  convey  to  the  said  Hart  two  undivided  third 
parts  of  the  premises  conveyed  to  the  said  Baker,  Hill  and  myself, 
by  William  Sturgis,  b}rdeed  dated  Dec.  5th,  1842,  recorded  in  said 
Register  of  Deeds,  book  422,  page  527.  Also  two  undivided 
third  parts  of  the  following  described  real  estate  situated  in 
said  Lowell : “ The  flannel  factory,”  in  that  part  of  said  Lowell 
called  Belvidere,  formerly  the  property  of  the  said  Warren,  Barry 
& Parke,  with  the  water-wheels  and  gearing  thereof.  Also  a two- 
story  red  building  lying  south  of  said  factory.  Also  a small 
bleaching-house  lying  northerly  of  said  factory.  Also  a dyeing  and 
dye-house  on  Mechanic  street,  lying  westerly  of  said  factory, 
together  with  all  the  land  under  and  belonging  to  said  factoiy,  and 
other  buildings,  intending  to  include  the  land  between  Concord 
street,  now  called  Howe  street,  and  Mechanic  street,  southerly  of 
a lot  of  land  formerly  sold  by  said  Warren,  Barry  & Parke,  to 
William  Eager,  being  the  third  lot  above  described,  to  with  a 
right  to  draw  and  use  the  water  of  Concord  river  for  the  purpose 
of  carrying  the  wheels  of  said  factory,  but  this  right  is  to  be  used 
only  when  there  is  sufficient  water  for  the  Middlesex  Co.’s  rights. 
Also  a two-story  wooden  dwelling-house  and  the  land  under  and 
belonging  to  the  same,  situated  on  or  near  said  Howe  street. 
For  a more  full  and  accurate  description  of  the  premises  hereb}r 
intended  to  be  conveyed,  reference  is  to  be  had  to  a plan  of 
property  of  said  Warren,  Barry  &Park,  drawn  b}T  Alexander  Wads- 
worth and  recorded  in  said  Registry  of  Deeds  at  the  end  of  book 
314.  Which  plan  on  the  said  record  thereof  is  hereby  made  part 
of  these  presents.  Also  the  lots  of  land  in  said  Lowell  represented 
and  numbered  in  said  plan  as  follows,  viz.  : No.  12,  containing 
2,942  square  feet,  and  lot  No.  1,  containing  1,489  feet.  Also 
a lot  of  land  bounded  and  described  as  follows,  to  wit : Beginning 
at  the  northwest  corner  thereof  at  land  of  Thomas  Nesmith  and 
land  of  heirs  of  H.  Davidson,  thence  running  easterly  on  said  Nes- 
mith’s land  seventy  feet  to  said  Mechanic  street ; thence  running 
southerly  on  said  Mechanic  street  about  seventy-eight  feet  to  land 
of  Middlesex  Co.  ; thence  running  westerly  on  said  Middlesex 
Co.’s  land  sevent}’  feet  to  said  heirs’  land,  thence  running  northerly 
on  said  heirs’  land  about  seventy-eight  feet  to  the  point  of  begin- 
ning, being  a part  of  lots  sixteen  and  seventeen  on  said  plan. 
Together  with  all  the  rights,  easements,  privileges  and  appurte- 
nances to  the  same  belonging,  and  all  the  mill-wheels  and  gearing 
belonging  thereto.  The  water-power  hereby  granted  is  subject  to 
the  prior  rights  of  Thomas  Hurd,  his  heirs  and  assigns,  to  the  use 
of  sufficient  water  from  the  mill-pond  above  the  dam  to  carry  a 
fulling-mill  and  three  breast-wheels,  each  twelve  feet  in  diameter 
and  fifteen  feet  in  length,  with  the  machinery  and  works  that  may 
be  attached  to  or  connected  with  the  same.  The  premises  are  also 
conveyed  subject  to  the  respective  rights  of  Abijah  Brown,  of 
Samuel  and  Jeremiah  Garland,  of  James  and  King  B.  Stewart,  of 


Belvedere  Mills. 


935 


Joseph  G.  Kittredge  and  H.  Clements,  and  of  their  respective 
heirs  and  assigns,  under  conveyance  of  sundry  parcels  of  real 
estate  made  to  them  respectively  by  said  Warren,  Barry  & 
Parke  ; to  which  conveyances,  as  the  same  are  recorded  in  said 
Registry,  reference  is  hereby"  made.  Intending  hereby  to  convey 
to  the  said  Hart  two  undivided  third  parts  of  the  same  premises 
conveyed  by  the  said  Warren,  Barry  & Park  to  the  said  Whit- 
well,  Bond,  Seaver  & Bond,  by  deed  dated  January  24th,  1834, 
recorded  in  said  Registry,  book  334,  page  9,  and  by  said  Whitwell, 
Bond,  Seaver  & Bond  conveyed  to  the  said  Hill,  Baker  and  my- 
self, b}T  deed  dated  April  28th,  1835,  recorded  in  said  Registry, 
book  353,  page  326,  except  so  much  thereof  as  Hill,  Baker  and 
myself  have  heretofore  jointly  conveyed  to  sundry  persons  ; intend- 
ing to  convey  to  the  said  Hart  all  my  right,  title  and  interest  in 
and  to  the  above-described  real  estate,  it  being  understood  that 
my  said  right,  title  and  interest  is  two  undivided  third  parts 
thereof.” 

Subject  to  mortgage  for  $5,000. 

Subject  to  lease  to  Charles  Stott. 

Hab.  in  fee. 

Lib.  582,  fol.  180.  Nov.  27th,  1850.  Nov.  30th,  1850. 

George  Hill  to  H.  B.  Hart.  $2,282.27. 

One  undivided  third  of  the  above-described  premises. 

Hab.  in  fee. 

Lib.  592,  fol.  235.  March  22d,  1851.  April  22d,  1851. 

Henry  Brown  Hart  to  Benjamin  Loring.  $15,000. 

“ A certain  lot  of  land  situated  in  Lowell,  in  the  County  of  Middle- 
sex and  Commonwealth  of  Massachusettes,  bounded  and  described 
as  follows,  viz. : Beginning  at  the  northwest  corner  of  the  premises 
at  land  conveyed  to  one  Walter  Farnsworth,  one  George  Hill  and 
one  Eliphalet  Baker,  by  Samuel  Whitwell,  George  Bond,  Benjamin 
Seaver  and  George  W.  Bond,  being  lot  numbered  1 on  the  plan 
hereinafter  mentioned,  and  at  land  now  or  late  of  John  Nesmith ; 
thence  running  easterly  about  fifty  feet,  to  Fayuette  street ; 
thence  running  southerly  on  said  street,  on  the  westerly  side  there- 
of, about  thirty-five  feet,  to  land  conveyed  by  Joseph  G.  Kittredge 
to  Wilson  and  Coffin,  by  deed  dated  May  9th,  A.  D.  1842  ; thence 
running  westerly  on  said  Wilson  and  Coffin’s  land  about  fifty-eight 
feet,  to  said  Farnsworth,  Hill  and  Baker’s  land  ; thence  running 
northerly  on  the  last-mentioned  land  about  thirty-five  feet  to  the 
point  of  beginning.  Intending  to  convey  to  the  said  Loring  the 
same  premises  conveyed  to  me  by  the  said  Farnsworth  and  Hill, 
by  their  several  deeds  dated  November  27th,  A.  D.  1850,  and  No- 
vember 26th,  1850,  recorded  in  the  Registry  of  Deeds  for  Middle- 
sex County,  book  582,  page  180  and  page  176.  tAlso  a certain 
other  lot  of  land  situate  in  said  Lowell,  on  the  east  side  of  Concord 
river,  with  a stone  building  thereon,  formerly  occupied  as  a blanket 
factory  by  the  Whitney  Mills,  being  the  same  lot  of  land  that  was 
conveyed  by  Richard  Warren,  Samuel  F.  Barry,  and  Thomas  B. 
Park,  to  Alpheus  Smith,  by  deed  dated  October  1st,  A.  D.  1832, 


936 


Belvidere  Mills. 


except  so  much  of  said  lot  as  lies  on  the  north  side  of  said  build- 
ing, and  distant  from  the  same  four  feet,  with  the  privileges,  ap- 
purtenances, and  water-rights  and  privileges,  and  subject  to  all  the 
conditions,  limitations,  and  restrictions  that  are  set  forth  at  large 
in  said  deed  to  said  Smith,  to  which,  as  the  same  is  found  at  large 
recorded,  reference  is  to  be  had,  and  subject  also  to  the  right  of  S. 
D.  Sturtevant,  his  heirs  and  assigns,  in  the  water  of  said  river, 
and  in  the  canal  across  said  lot  of  land,  to  the  extent  of  his  pro- 
portion of  the  water-power,  as  conveyed  by  the  said  Whitney  mills 
to  him,  by  deed  dated  April  3d,  A.  D.  1844.  Intending  hereby  to 
convey  to  the  said  Loring  the  same  premises,  appurtenances,  and 
water-rights  conveyed  to  me  by  Walter  Farnsworth  and  George 
Hill,  by  several  deeds  dated  November  27th,  A.  D.  1850,  and  No- 
vember 26th,  1850,  recorded  in  the  Registry  of  Deeds  for  Middlesex 
County,  book  582,  page  180  and  page  176.  Also  a certain  other 
lot  of  land  with  the  buildings  thereon,  situated  in  said  Lowell,  and 
thus  bounded  and  described,  to  wit : Beginning  at  the  northwest 
corner  of  the  premises  at  the  intersection  of  the  easterly  line  of 
Mechanic  street  with  the  south  line  of  Brown  street ; thence  run- 
ning easterly  on  said  Brown  street  forty-four  feet,  to  a street  for- 
merly called  Concord  street,  now  Howe  street ; thence  southerly 
on  said  Howe  street  seventy-four  feet  and  nine  inches ; thence 
westerly  fifty-nine  feet  and  eight  inches  to  said  Mechanic  street ; 
thence  northerly  on  said  Mechanic  street  seventy-six  feet  and 
seven  inches  to  the  point  of  beginning.  Intending  hereby  to  con- 
vey to  the  said  Loring  all  the  premises  conveyed  to  me  by  Walter 
Farnsworth  and  George  Hill,  by  several  deeds  dated  November 
27th,  1850  and  November,  26th,  1850,  recorded  in  the  Registry  of 
Deeds  for  Middlesex,  book  582,  page  180  and  page  176.  Also 
the  following  described  real  estate  situated  in  said  Lowell,  viz. : 
“ The  flannel  factory,”  in  that  part  of  said  Lowell  called  “ Belvi- 
dere,”  formerly  the  property  of  the  said  Warren,  Barry  and  Park, 
with  the  water-wheels  and  gearing  thereof ; also  a two-story  red 
building  lying  south  of  said  factory  : also  a small  bleaching-house 
lying  northerly  of  said  factory ; also  a dyeing  and  dye-house  on 
Mechanic  street,  lying  westerly  of  said  factory,  together  with  all 
the  land  under  and  belonging  to  said  factory  and  other  buildings. 
Intending  to  include  the  land  between  Concord  street,  now  called 
Howe  street,  and  Mechanic  street,  southerly  of  a lot  of  land 
formerly  sold  by  said  Warren,  Barry  and  Park  to  William  Eager, 
being  the  third  lot  above-described,  together  with  a right  to  draw 
and  use  the  water  of  Concord  river  for  the  purpose  of  carrying  on 
the  works  of  said  factory ; but  this  right  is  to  be  used  only  when 
there  is  sufficient  water  for  the  Middlesex  Company’s  right.  Also 
a two-story  wooden  dwelling  house,  and  the  land  under  and  be- 
longing to  same,  situated  on  or  near  said  Howe  street.  For  a 
more  full  and  accurate  description  and  understanding  of  the  prem- 
ises hereby  intended  to  be  conveyed,  reference  is  to  be  had  to  a 
plan  of  property  of  said  Warren,  Barry  and  Park,  drawn  by 
Alexander  Wadsworth,  and  recorded  in  said  Registry  of  Deeds  at 
the  end  of  book  314,  which  plan  on  the  said  record  thereof  is  here- 
by made  a part  of  these  presents ; also  the  lots  of  land  in  said 


Belvidere  Mills. 


937 


Lowell  represented  and  numbered  on  said  plan  as  follows,  viz.  : 
number  twelve,  containing  twenty-nine  hundred  and  forty-two 
square  feet,  and  lot  numbered  one,  containing  eleven  thousand 
four  hundred  and  eighty-nine  square  feet  ; also  a lot  of  land 
bounded  and  described  as  follows,  to  wit  : Beginning  at  the 
northeast  corner  thereof,  at  land  of  Thomas  Nesmith  and  land  of 
heirs  of  H.  Davidson,  thence  running  easterly,  on  said  Nesmith’s 
land,  seventy  feet,  to  Mechanic  street ; thence  running  southerly, 
on  said  Mechanic  street,  about  seventy-eight  feet,  to  land  of  Mid- 
dlesex Company ; thence  running  westerly,  on  said  Middlesex 
Company’s  land,  seventy  feet,  to  said  heirs’  land  ; thence  running 
northerly,  on  said  heirs’  land,  about  seventy-eight  feet,  to  the 
point  of  beginning,  being  a part  of  lots  numbered  sixteen  and 
seventeen  on  said  plan,  together  with  all  the  rights,  easements, 
privileges  and  appurtenances  to  the  premises  belonging,  and  all 
the  mill-wlieels  and  gearing  belonging  thereto.  The  water-power 
hereby  granted  is  subject  to  the  prior  rights  of  Thomas  Hurd,  his 
heirs  and  assigns,  to  the  use  of  sufficient  water  from  the  mill-pond 
above  the  dam  to  carry  a fulling-mill  and  three  breast-wheels,  each 
twelve  feet  in  diameter  and  fifteen  feet  in  length,  with  the  ma- 
chinery and  works  that  may  be  attached  to  or  connected  with  the 
same.  The  premises  are  also  conveyed  subject  to  the  rights  of 
Abijah  Brown,  of  Samuel  and  Jeremiah  Garland,  of  James  and 
King  B.  Stewart,  of  Joseph  G.  Kittredge  and  H.  Clements,  and  of 
their  respective  heirs  and  assigns,  under  conveyance  of  sundry 
parcels  of  real  estate  made  to  them  respectively  by  said  Warren, 
Barry  and  Parke,  to  which  conveyances,  as  the  same  are  recorded 
in  said  Registry  of  Deeds,  reference  is  hereby  made.  Intending 
hereby  to  convey  to  the  said  Loring  the  same  premises  conveyed 
by  the  said  Warren,  Barry  and  Park  to  the  said  Wliitwell,  Bond, 
Seaver  and  Bond,  by  deed  dated  January  24th,  A. D.  1834,  recorded 
in  said  Registry,  book  334,  page  9,  and  by  said  Whitwell,  Bond, 
Seaver  and  Bond  conveyed  to  said  Farnsworth,  Hill  and  Baker,  by 
deed  dated  April  28th,  A.D.  1835,  and  recorded  in  said  Registry, 
book  353,  page  326,  and  by  said  Hill  and  Farnsworth  conveyed  to 
me,  by  several  deeds  dated  November  27th,  A.D.  1850,  and  No- 
vember 26th,  1850,  and  recorded  in  said  Registry,  book  580,  page 
180  and  page  176,  except  so  much  thereof  as  said  Farnsworth, 
Hill  and  Baker  have  heretofore  conve}^ed  to  sundry  persons.  In- 
tending to  convey  to  said  Loring  all  my  right,  title  and  interest  in 
and  to  the  above-described  real  estate.  And  this  conveyance  is 
made  subject  to  the  right  granted  by  the  said  Farnsworth,  Hill 
and  Baker  to  the  Proprietors  of  Locks  and  Canals  on  Merrimack 
river  to  flow,  and  subject  also  to  a certain  mortgage  made  by  said 
Farnsworth,  Hill  and  Baker  to  Charles  Stott,  dated  February  2d, 
A.D.  1837,  recorded  in  said  Registry  of  Deeds,  book  359,  page 
472,  for  the  sum  of  five  thousand  dollars,  and  subject  also  to  a 
lease  made  to  the  said  Stott,  dated  August  29th,  1850.” 

II ab.  in  fee. 


938 


Belvidere  Mills. 


Lib.  642,  fol.  90.  July  20th,  1852.  Oct.  26th,  1852. 

Benjamin  Loring  to  Walter  Farnsworth.  87,500. 

One  undivided  half  of  certain  premises,  describing  them  exactly 
as  in  deed  from  Hart  to  Loring.  “ Intending  to  convey  to  the 
said  Farnsworth  one-half  of  the  same  premises  conveyed  to  me  by 
Henry  Browm  Hart,  by  deed  dated  the  22d  March,  1851,  and  re- 
corded in  Registry  of  Deeds  for  Middlesex  County,  book  592, 
page  235.” 

Hab.  in  fee. 

Lib.  642,  fol.  193.  July  20th,  1852.  Nov.  12th,.  1852. 

Benjamin  Loring  to  Charles  Stott.  $7,500. 

One  undivided  half  of  certain  premises,  describing  them  exactly 
as  in  deed  from  Hart  to  Loring.  “ Intending  to  convey'  to  the 
said  Stott  one-half  of  the  same  premises  conveyed  to  me  by  Henry 
Brown  Hart  by  deed  dated  the  22d  day  of  March,  1851,  and  re- 
corded in  Registry  of  Deeds  for  Middlesex  County,  book  592,  page 
235.” 

Hab.  in  fee. 

Lib.  673,  fol.  75.  Nov.  15th,  1853.  No.v.  19th,  1853. 

Walter  Farnsworth  and  Charles  Stott  to  Belvidere  Woollen  Man- 
ufacturing Co.  $10,000. 

Hab.  in  fee. 

The  following  described  lots  or  parcels  of  real  estate  being  the 
same  described  in  two  deeds  b}T  Benjamin  Loring  to  the  present 
grantors  severally,  viz. : Benjamin  Loring  to  Walter  Farnsworth, 
dated  July  20th,  A.  D.  1852,  recorded  with  Middlesex  Deeds  at 
book  642,  page  90,  and  Benjamin  Loring  to  Charles  Stott,  dated 
July  20th,  A.  D.  1852,  recorded  with  Middlesex  Deeds  at  book  642, 
page  193  ; each  of  said  deeds  conveying  to  the  grantees  therein 
named  one  undivided  half  of  the  said  lots  or  parcels  of  real  es- 
tate, and  the  said  lots  or  parcels  are  by  this  present  instrument 
conveyed  whole  and  entire  to  said  corporation,  and  they  are  de- 
scribed as  follows,  that  is  to  say  : A certain  lot  of  land  in  said 

Lowell,  bounded  and  described  as  follows,  viz.  : Beginning  at  the 
northwest  corner  of  the  premises  at  land  conve3~ed  to  one  Walter 
Farnsworth  and  others  by  Samuel  Whitwell  and  others,  being  lot 
numbered  1 on  the  plan  hereinafter  mentioned,  and  at  land  now  or 
late  of  John  Nesmith  ; thence  running  easterly  about  fifty  feet  to 
Fayette  street ; thence  running  southerty  on  said  street,  on  the 
westerty  side  thereof,  about  thirty-five  feet  to  land  conveyed  by 
Joseph  G.  Kittredge  to  Wilson  and  Coffin  by  deed  dated  May  9, 
A.  D.  1842  ; thence  running  westerly  on  said  Wilson  and  Coffin’s 
land  about  fifty-eight  feet  to  land  of  said  Farnsworth  and  others  ; 
thence  running  northerly  on  the  last  mentioned  land,  about  thirty- 
five  feet  to  the  point  of  beginning ; it  being  the  same  lot  described 
first  in  the  said  deeds  by  said  Loring  to  said  Stott  and  to  said 
Farnsworth.  Also  a certain  other  lot  of  land  situated  in  said 
Lowell  on  the  east  side  of  Concord  river,  with  a stone  building 
thereon,  formerly  occupied  as  a blanket  factory  by  the  Whitne}T 


Belyidere  Mills. 


939 


mills,  being  the  same  lot  of  land  that  was  conveyed  by  Richard 
Warren  and  others  to  Alpheus  Smith  by  deed  dated  October  1st, 
A.  D.  1832,  except  so  much  of  said  lot  as  lies  on  the  north  side 
of  said  building,  and  distant  from  the  same  four  feet,  with  the 
privileges  and  appurtenances  and  water-rights  and  privileges,  and 
subject  to  all  the  conditions,  limitations  and  restrictions  that  are 
set  forth  at  large  in  said  deed  to  said  Smith,  to  which,  as  the  same 
is  found  at  large  recorded,  reference  is  to  be  had,  and  subject  to 
all  the  right  of  S.  D.  Sturtevant,  his  heirs  and  assigns,  in  the  water 
of  said  river  and  in  the  canal  across  said  lot  of  land  to  the  extent 
of  his  proportion  of  the  water-power,  as -conveyed  by  said  Whitney 
mills  to  him  by  deed  dated  April  3d,  A.  D,  1844  ; it  being  the  same 
lot  described  secondly  in  said  deeds  by  Benjamin  Loring  to  the 
said  Farnsworth  and  Stott.  Also  a certain  other  lot  of  land  with 
the  buildings  thereon,  situated  in  said  Lowell,  and  thus  bounded 
and  described,  to  wit : Beginning  at  the  northwest  corner  of  the 
premises  at  the  intersection  of  the  easterly  line  of  Mechanic  street 
with  the  south  line  of  Brown  street ; thence  running  easterty  on 
said  Brown  street  forty-four  feet  to  a street  formerly  called  Con- 
cord street,  now  Howe  street ; thence  southerly  on  said  Howe 
street  seventy-four  feet  and  nine  inches  ; thence  westerly  fifty-nine 
feet  and  eight  inches  to  said  Mechanic  street ; thence  northerly  on 
Mechanic  street  seventy-six  feet  and  seven  inches  to  the  point  of 
beginning  ; it  being  the  same  lot  described  thirdly  in  said  deeds  by 
Benjamin  Loring  to  the  said  Farnsworth  and  Stott.  Also  all  the 
real  estate  comprehended  in  the  fourth  clause  of  the  descriptive 
part  of  the  said  deeds  to  Farnsworth  and  Stott,  with  all  the  rights, 
privileges  and  appurtenances,  or  easements,  and  subject  to  all  the 
restrictions  in  said  deeds  mentioned  and  contained,  with  all  the 
buildings  now  standing  on  said  real  estate,  and  all  property  covered 
by  the  said  descriptive  clause,  which  is  as  follows,  viz.  : “ The 
flannel  factory  in  that  part  of  Lowell  called  Belvidere,  formerly  the 
property  of  said  Warren,  Barry  & Park,  with  the  water-wheels 
and  gearing  thereof ; also  a two-story  red  building  lying  south  of 
said  factory ; also  a small  bleaching-house  lying  northerly  of  said 
factory ; also  a dyeing  and  dye  house  on  Mechanic  street,  lying 
westerly  of  said  factory,  together  with  all  the  land  under  and  be- 
longing to  said  factory  and  other  buildings,  intending  to  include  the 
land  between  Concord  street,  now  called  Howe  street,  and  Me- 
chanic street,  southerly  of  a lot  of  land  formerly  sold  by  said 
Warren,  Barry  & Park  to  William  Eager,  being  the  third  lot  above 
described,  together  with  a right  to  draw  and  use  the  water  of  Con- 
cord river  for  the  purpose  of  carrying  the  works  of  said  factory ; 
but  this  right  is  to  be  used  only  when  there  is  sufficient  water  for 
the  Middlesex  Company’s  right.  Also  a two-story  wooden  dwelling- 
house  and  the  land  under  and  belonging  to  the  same,  situated  on 
or  near  said  Howe  street.  For  a more  full  and  accurate  description 
and  understanding  of  the  premises  hereby  intended  to  be  convej’ed, 
reference  is  to  be  had  to  a plan  of  property  of  said  Warren,  Barry 
& Park,  drawn  by  Alexander  Wadsworth,  and  recorded  in  said 
Registr}^  of  Deeds  at  the  end  of  book  314,  which  plan  on  the  said 
record  thereof  is  hereby  made  a part  of  these  presents ; also  all 


940 


Belvidere  Mills. 


the  several  lots  of  land  in  said  Lowell  represented  and  numbered 
in  said  plan  as  follows,  viz.  : Number  twelve,  containing  twenty- 
nine  hundred  and  forty-two  square  feet,  and  lot  numbered  one, 
containing  eleven  thousand  four  hundred  and  eighty-nine  square 
feet.  Also  a lot  of  land  bounded  and  described  as  follows,  to  wit : 
Beginning  at  the  northwest  corner  thereof  at  land  of  Thomas  Nes- 
mith and  land  of  heirs  of  H.  Davidson ; thence  running  easterly 
on  said  Nesmith’s  land  seventy  feet  to  said  Mechanic  street ; 
thence  running  southerly  on  said  Mechanic  street  seventy-eight 
feet  to  land  of  Middlesex  Company ; thence  running  westerly  on 
said  Middlesex  Company’s  land  seventy  feet  to  said  heirs’  land  ; 
thence  running  northerly  on  said  heirs’  land  about  seventy-eight 
feet  to  the  point  of  beginning.  Being  a part  of  lots  numbered 
sixteen  and  seventeen  on  said  plan,  together  with  all  the  rights, 
easements,  privileges  and  appurtenances  to  the  premises  belong- 
ing, and  all  the  mill-wheels  and  gearing  belonging  thereto.  The 
water  power  hereby  granted  is  subject  to  the  prior  rights  of 
Thomas  Hurd,  his  heirs  and  assigns,  to  the  use  of  sufficient  water 
from  the  mill-pond  above  the  dam  to  carry  a fulling-mill  and  three 
breast-wheels,  each  twelve  feet  in  diameter  and  fifteen  feet  in 
length,  with  the  machinery  and  works  which  may  be  attached  to 
or  connected  with  the  same.  The  premises  are  also  conveyed  sub- 
ject to  the  rights  of  Abijah  Brown,  of  Samuel  and  Jeremiah  Gar- 
land, of  James  and  King  B.  Stewart,  of  Joseph  G.  Kittredge  and 
H.  Clements,  and  of  their  respective  heirs  and  assigns,  under  con- 
veyance of  sundry  parcels  of  real  estate  made  to  them  respectively 
by  said  Warren,  Barry  & Park,  to  which  convejmnces,  as  the  same 
are  recorded  in  said  Registry  of  Deeds,  reference  is  hereb}"  made  ; 
and  this  conveyance  is  made  subject  to  the  right  granted  by  Wal- 
ter Farnsworth,  George  Hill  and  Eliphalet  Baker  to  the  Proprie- 
tors of  locks  and  canals  on  Merrimack  river  to  flow.  Meaning 
and  intending  to  convey  by  this  deed  all  the  real  estate  and  prop- 
erty described  in  and  conveyed  to  us  severally  by  the  above-men- 
tioned deeds  of  Benjamin  Loring  to  us,  the  said  Walter  Farnsworth 
and  Charles  Stott,  severally,  as  aforesaid. 

Note.  — By  deeds  of  Farnsworth  & Hill,  lib.  582,  fol.  176  and 
180,  they  convey  the  premises  conveyed  by  Warren,  Barry  & Park 
to  Whitwell,  Bond  & Co.,  and  by  Whitwell,  Bond  & Co.  to  them- 
selves, “ except  so  much  as  we  have  previously  sold.”  Their 
previous  deeds  are  : — 

Lib.  420,  fol.  530.  Dec.  5th,  1842.  Jan.  9th,  1943. 

Eliphalet  Baker,  Walter  Farnsworth,  and  George  Hill  to  Jas.  0. 
Patterson.  $831. 

Hab.  in  fee,  with  all  appurtenances. 

“ The  following  described  premises,  in  said  Lowell,  to  wit : Be- 
ginning on  the  west  side  of  Mechanic  street,  as  laid  down  on 
Wadsworth’s  plan,  at  land  of  said  Patterson;  thence  running 
northerlj’  on  the  west  side  of  said  street  fifty-nine  feet  and  five 
inches ; then  turning  a right  angle  and  running  westerly  seventy 
feet  to  land  of  Hamilton  Davidson  ; then  turning  a right  angle 


Belvidere  Mills. 


941 


and  running  southerly  by  said  Davidson’s  land  fifty-nine  feet  and 
five  inches  to  land  of  said  Patterson  ; then  turning  a right  angle 
and  running  easterly  b}7  said  Patterson’s  land  seventy  feet  to  the 
point  of  beginning,  with  the  right  or  privilege  of  using  one  twenty - 
Jifth  part  of  the  surplus  water  of  the  Concord  river,  which  remains 
after  the  full  supply  of  the  water  for  the  Middlesex  Company,  and 
also  for  the  full  supply  of  water  for  the  flannel-mill  establish- 
ment of  the  grantors,  said  part  of  the  surplus  water  to  be  taken 
from  the  penstock  at  the  premises  ; reserving  to  said  grantors  and 
their  successors  the  right  to  rest  the  ends  of  timbers  on,  or  to 
enter  them  into,  the  wall  which  now  runs  across  the  north  end  of 
the  premises,  but  in  such  a manner  as  not  to  obstruct  the  use  of 
said  wall  and  premises  by  the  grantee.  But,  if  said  grantor  takes 
the  water  from  said  penstock,  he  shall  pay  his  proportion  of  the 
expense  of  keeping  the  same  in  repair  in  front  of  said  Patterson’s 
premises  ; and  said  Patterson  shall  pay  one-half  of  the  expense  of 
keeping  said  street  in  repair  where  said  street  bounds  on  said 
premises.  But  this  conveyance  is  made  subject  to  all  the  restric- 
tions and  reservations  contained  in  the  deed  to  these  grantors  from 
Samuel  Whitwell  and  others.” 

Lib.  425,  fol.  283.  May  11th,  1842.  Feb.  23d,  1843. 

“ A covenant  and  agreement  made  and  entered  into  this 
eleventh  day  of  May,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  forty-two,  by  and  between  Walter  Farnsworth,  George 
Hill  and  Eliphalet  Baker,  all  of  Boston,  in  the  County  of  Suffolk 
and  Commonwealth  of  Massachusetts,  merchants,  of  the  one  part, 
and  Elias  S.  French  and  William  L.  Dustin,  both  of  Lowell,  in 
the  County  of  Middlesex  and  Commonwealth  aforesaid,  mechanics, 
of  the  other  part,  as  follows,  to  wit : The  said  Farnsworth,  Hill 
and  Baker,  in  consideration  of  four  hundred  and  thirty-eight 
dollars  and  fifty  cents,  to  be  paid  to  them  by  the  said  French  and 
Dustin,  as  hereinafter  mentioned  and  expressed  ; and  when  thirty 
per  cent,  of  the  pui chase-money,  together  with  interest  on  the 
whole,  shall  be  so  paid,  do  hereby  covenant  and  agree  with  the 
said  French  and  Dustin  that  they  the  said  Farnsworth,  Hill  and 
Baker  shall  and  will  at  any  time  after  the  said  thirty  per  cent,  and 
interest  shall  be  paid,  and  on  request  or  demand  of  said  French 
and  Dustin,  or  either  of  them,  their  heirs,  executors,  adminis- 
trators or  assigns,  convey  to  them,  the  said  French  and  Dustin,  or 
their  legal  representative,  by  a quitclaim-deed,  the  undivided 
easterly  two  third  parts  of  the  following-described  lot  or  piece  of 
land  situate  in  said  Lowell,  in  that  part  called  Belvidere,  it  being 
Lot  No.  13  on  plan  of  Alexander  Wadsworth,  of  land  formerly 
owned  by  Warren,  Barry  & Park,  the  whole  lot  containing  three 
thousand  eight  hundred  and  sixty-nine  feet,  more  or  less,  and 
computed  at  seventeen  cents  per  foot,  and  bounded  as  follows, 
viz.  : Easterly  on  Howe  street,  so  called  ; northerly  by  a court  and 
Lot  No.  12  on  said  plan  ; westerly  by  land  of  Hamilton  Davidson  ; 
and  southerly  by  land  now  owned  and  occupied  by  said  French  and 
Dustin,  together  with  the  privilege  of  drawing  and  using  tivo- 
thirds  of  one  twenty-fourth  part  of  the  surplus  water  taken  from 


942 


Bel  vide  re  Mills. 


the  Concord  river,  said  water  to  be  drawn  and  used  on  the  wheel 
in  the  premises  and  building  now  owned  and  occupied  by  the  said 
French  and  Dustin,  and  nowhere  else,  and  hereby  reserving  the 
right  and  privilege  of  carrying  water  through  said  premises  to  my 
other  place  by  a pent-stock,  securely  placed  and  safely  covered,  and 
to  enter  and  repair  the  same  at  their  option  ; and  the  said  grantors 
covenant  on  their  part  that  the  said  premises  shall  be  free  from  all 
incumbrances  whatever,  since  the  same  shall  have  come  into  their 
possession.” 

Lib.  437,  fol.  55.  Dec.  20th,  1843. 

Assignment  of  the  above  agreement  by  French  & Dustin  to 
John  Nesmith. 

Lib.  533,  fol.  198.  Nov.  7th,  1847.  March  29th,  1848. 

Q.  C.  in  accordance  with  the  above  agreement  bjr  Baker,  Hill  & 
Farnsworth  to  John  Nesmith. 

Lib.  502,  fol.  412.  March  5th,  1845.  April  3d,  1847. 

Baker,  Hill  & Farnsworth  to  Thomas  Nesmith.  $210. 

Northerly  part  of  Lot  16  on  Alex.  Wadsworth’s  plan. 

A piece  of  land  70  feet  by  18  feet. 

Hab.  in  fee,  with  all  appurtenances,  but  no  water  granted. 

Lib.  572,  fol.  512.  Nov.  11th,  1847.  Oct.  11th,  1850. 

Baker,  Hill  and  Farnsworth  to  John  Holt.  $219.24. 

Hab.  in  fee  with  all  privileges  and  appurtenances. 

“ The  westerly  third  part  of  a certain  lot  of  land  which  it  situate 
in  Lowell,  in  the  County  of  Middlesex,  in  Belvidere,  so  called,  being 
lot  No.  13,  on  a plan  made  by  Alexander  Wadsworth,  of  land  for- 
merly owned  by  Warren,  Barry  and  Park,  the  whole  containing 
three  thousand  eight  hundred  and  sixty-nine  feet,  and  bounded  as 
follows,  viz. : easterly  by  Howe  street,  so  called ; northerly  by  a 
court  and  lot  No.  12,  on  said  plan  ; westerly  b}'  land  now  or  for- 
merly of  Hamilton  Davidson,  and  southerly  by  land  of  John  Nes- 
mith, formerly  belonging  to  French  & Dustin,  with  the  privileges 
as  appurtenant  to  the  conveyed  premises  of  drawing  and  using 
one  third  part  of  one  twenty-fourth  part  of  the  surplus  water  taken 
from  the  Concord  river,  said  water  to  be  used  on  the  wheel  in  the 
premises  now  occupied  by  Hapgood,  Holts  & Fish,  and  not  else- 
where. Reserving,  however,  to  the  grantors  and  their  heirs  and 
assigns  the  right  of  combing  water  through  the  premises  to  any 
other  place,  by  means  of  a pent-stock,  safely  placed  and  securely 
covered,  with  a right  to  enter  and  to  repair  the  same  at  any  time. 
Intending  hereby  to  convey  to  said  Holt  the  same  property  which 
we  bound  ourselves  to  convey  to  him  by  an  agreement  in  writing, 
bearing  date  May  11th,  A.  D.  1842.  Recorded  with  the  Middlesex 
Deeds,  book  425,  page  282,  reference  to  which  may  be  had.” 

Farnsworth,  Hill  & Baker  have  thus  conveyed  away  one  twenty- 
fourth  plus  one  twenty-fifth  from  the  amount  conveyed  to  them  by 
Whitwell,  Bond  & Co.  by  deed,  lib.  356,  326. 


Belvidere  Mills. 


943 


Lots  2,  3,  4 and  5. 

318,  503.  May  1st,  1832.  Dec.  31st,  1832. 

Warren,  Barry  and  Parke  to  Hale  Clements.  $4,000. 

Hab.  in  fee.  Full  warranty. 

Four  lots  of  land  situated  in.  that  part  of  said  Tewksbury  called 
Belvidere  Village,  which  are  numbered  respectively,  two,  three, 
four  and  five,  on  a plan  of  land  belonging  to  us,  drawn  by  Alex- 
ander Wadsworth,  and  bearing  date  on  the  twent3r-sixth  day  of 
May  now  current,  recorded  or  to  be  recorded  with  Middlesex 
Deeds,  to  which  plan  reference  is  to  be  had  for  the  boundaries  and 
dimensions  of  the  premises,  together  with  the  buildings  thereon 
situated,  and  other  buildings  connected  with  them  and  now  stand- 
ing on  lots  numbered  respectively  as  aforesaid  one  and  six  on  said 
plan,  which  latter  buildings  are  to  be  removed  by  said  Clements. 
Together  with  all  the  privileges  and  appurtenances  to  the  premises 
belonging,  particularly  the  right  to  use  three  twenty-fifth  parts  of 

the  water  of  Concord  river  at  the  premises,  in  common  with  us, 

our  heirs  or  assigns  ; but  this  right  is  to  be  exercised  subject  to 

the  previous  rights  following,  that  is  to  say,  only  when  there  is 

sufficient  water  for  the  Middlesex  Company’s  right,  and  also  for 
the  works  of  our  flannel  factory  and  fulling-mill  near  the  prem- 
ises, as  said  works  now  are,  or  with  the  substitution  of  an  iron 
wheel  similar  to  that  in  the  Middlesex  Company’s  wooden  build- 
ing, and  also  for  the  works  of  Holmes’  card  and  whip  factory. 
Beserving,  nevertheless,  to  us,  our  heirs  and  assigns,  the  right  to 
have  a canal  running  through  the  front  of  the  premises  to  the 
canal  under  the  buildings,  and  also  a right  to  carry  the  canal 
under  the  buildings,  through  the  lots  numbered  two  and  three.  It 
is  provided  that  said  Clements,  his  heirs  or  assigns,  shall  not 
permit  any  iron  water-wheel  to  be  used  at  the  granted  premises, 
but  that  the  wheels  shall  correspond  with  those  used  by  others 
having  equal  privileges  near  the  premises,  and  that  the  owners  of 
the  flannel  mill  aforesaid,  their  heirs  or  assigns,  shall  have  the 
right  to  stop  the  wheels  which  may  be  used  at  the  premises,  when- 
ever there  shall  not  be  sufficient  water  in  Concord  river  for  the 
previous  water-rights  aforesaid  ; and  also  that  the  buildings  on 
said  granted  lots  shall  be  set  on  a line  parallel  with  the  line  of 
Concord  street,  as  shown  on  the  plan  aforesaid. 

Lib.  318,  fol.  505.  May  1st,  1832.  Dec.  31st,  1832. 

Hale  Clemens  to  Warren,  Barry  and  Parke.  $3,500. 

Mortgage  of  same  premises  as  in  318,  503. 

Lib.  365,  fol.  488.  Jan.  10th,  1834.  July  31st,  1837. 

Warren,  Barry  and  Parke  to  Whitwell,  Bond,  Seaver  and  Bond. 

Assignment  of  the  above  mortgage. 


Lib.  365,  fol.  489.  July  15th,  1837.  July  31st,  1837. 

Whitwell,  Bond,  Seaver  and  Bond  to  Benj.  F.  White. 
Assignment  of  the  above  mortgage. 


944 


Belvidere  Mills. 


May  8th,  1838. 

Certificate  of  entry  b}T  White  to  foreclose  the  above  mortgage 
recorded  on  margin  of  same. 

Lib.  436,  fol.  139.  June  4th,  1839.  Dec.  12th,  1843. 

Benj.  F.  White  to  Daniel  Shattuck. 

Assignment  of  the  above  mortgage. 

Lib.  437,  fol.  53.  Feb.  4th,  1843.  Dec.  21st,  1843. 

Daniel  Shattuck  to  the  Whitne}T  Mills.  $2,500. 

“ A certain  lot  of  land  situated  in  Lowell,  in  said  county,  in 
Belvidere,  so  called,  at  or  near  Concord  river,  with  the  buildings, 
water  privileges  and  easements  belonging  thereto.  Being  the 
same  estate  which  was  conveyed  by  Richard  Warren  and  others  to 
Hale  Clements,  by  deed  dated  May  1st,  1832,  for  a description  of 
which  estate  and  its  boundaries,  and  the  lots  belonging  thereto, 
and  the  various  easements,  privileges  and  rights  incident  to  the 
same,  and  the  conditions,  limitations  and  restrictions  to  which  the 
same  is  subject,  reference  is  to  be  had  to  said  deed  as  the  same 
may  be  found  recorded,  book  318,  fol.  503,  in  the  Registry  of  this 
county.  Intending  hereb}r  to  assign  all  my  rights  under  a mort- 
gage from  said  Clements  to  said  Warren  and  others,  dated  May 
1st,  1832,  which  mortgage  since  came  by  assignment  to  me,  and 
on  which  possession  for  foreclosure  has  been  taken  and  main- 
tained.” 

Hab.  in  fee,  with  all  privileges  and  appurtenances. 

Note.  — At  this  date  the  Whitney  Mills  owned  lots  2,  3,  4,  5,  6, 
7,  8,  9,  10,  11. 

Lib.  452,  fol.  18.  April  2d,  1844.  Oct.  17th,  1844. 

The  Whitney  Mills  to  J.  D.  Sturtevant. 

All  the  lot  of  land  conveyed  by  Warren,  Barry  & Parke  to  Hale 
Clements,  dated  Oct.  1st,  1832,  and  recorded  lib.  318,  fol.  503. 

Also,  another  lot  of  land  south  of  and  adjacent  to  the  foregoing, 
being  so  much  of  the  lot  conveyed  b}'  Warren,  Barry  & Parke  to 
Alpheus  Smith  as  lies  north  of  a line  parallel  to  the  north  side  of 
the  stone  building  belonging  to  said  corporation,  and  distant  four 
feet  therefrom,  with  hll  privileges,  etc.,  as  in  deed  to  Hale 
Clements.  Also  with  easement  to  canal  across  said  corporation’s 
land,  with  exclusive  right  of  using  the  same  to  carry  wheel. 

Hab.  in  fee. 

Lib.  562,  fol.  365.  Nov.  9th,  1849.  Nov.  24th,  1849. 

J.  D.  Sturtevant  to  Ephraim  and  George  Crosby.  $5,000. 

Same  description  as  in  452,  18. 

Hab.  in  fee,  with  all  privileges  as  in  deed  to  Clements. 

Lib.  673,  fol.  186.  Dec.  13th,  1853.  Dec.  16th,  1863. 

E.  and  G.  Crosby  to  A.  J.  Richmond.  $100. 

Premises  conve}*ed  by  562,  365. 

Hab.  in  fee,  with  all  privileges,  etc.  Subject  to  mortgage  for 
$5,000,  which  the  grantee  is  to  assume  and  save  grantors  harmless. 


Belvidere  Mills. 


945 


Lib.  672,  fol.  416.  Feb.  4th,  1854.  Feb.  6th,  1854. 

A.  J.  Richmond  to  Leonard  Church  and  Joseph  Church.  $1,750. 

One  undivided  half  of  the  lots  conveyed  by  673,  186,  with  all  the 
privileges,  etc.,  and  subject  to  the  conditions  therein  expressed. 

Middlesex,  North  District. 

Lib.  24,  fol.  439.  June  25th,  1860.  July  10th,  1860. 

“ Know  all  men  by  these  Presents , That  whereas  I,  Samuel  W. 
Stickney,  of  Lowell,  in  the  County  of  Middlesex  and  Common- 
wealth of  Massachusetts,  guardian  of  James  H.  Richmond,  Herbert 
Richmond,  Walter  S.  Richmond,  Anne  De  Rose  Richmond,  Elbert 
W.  Richmond  and  Bayard  Richmond,  minor  children  of  Alanson  J. 
Richmond,  late  of  said  Lowell,  deceased,  by  an  order  of  the  Court 
of  Probate,  held  at  Lowell,  within  and  for  said  County  of  Middle- 
sex, on  the  fifth  day  of  June,  in  the  year  one  thousand  eight  hun- 
dred and  sixty,  was  licensed  and  empowered  to  sell  and  pass  deeds 
to  convey  certain  real  estate  of  the  said  minors  ; and  whereas  I,  the 
said  guardian,  having  given  public  notice  of  the  intended  sale  by 
causing  notifications  thereof  to  be  published  once  a week  for  three 
successive  weeks,  prior  to  the  time  of  sale,  in  the  newspaper  called 
the  Lowell  Weekly  Journal  and  Courier,  printed  at  said  Lowell,  and 
having  first  taken  the  oath  and  given  the  bond  by  law  in  such 
cases  required,  did,  on  the  twenty -fifth  day  of  June,  in  the  year  one 
thousand  6ight  hundred  and  sixty,  pursuant  to  the  order  and  notice 
aforesaid,  sell  by  public  auction  the  real  estate  of  the  said  minors 
hereinafter  described,  to  George  Ripley,  of  said  Lowell,  and 
Andrew  G.  Hammond,  of  Hartford,  in  the  State  of  Connecticut, 
for  the  sum  of  eleven  thousand  four  hundred  and  eighty-seven 
dollars,  they  being  the  highest  bidder  therefor.  Now,  therefore, 
know  ye  that  I,  Samuel  W.  Stickney,  guardian,  as  aforesaid,  by 
virtue  of  the  power  and  authorit}r  in  me  vested,  as  aforesaid,  and 
in  consideration  of  the  aforesaid  sum  of  eleven  thousand  four  hun- 
dred and  eighty-seven  dollars  to  me  paid  by  the  said  Ripley  and 
Hammond,  the  receipt  whereof  is  hereby  acknowledged,  do  b}^  these 
presents  give,  grant,  sell  and  convejr  unto  the  said  Ripley  and 
Hammond,  all  the  right,  title  and  interest  of  said  minor  children  in 
and  to  the  following  pieces  or  parcels  of  land,  viz.  : a certain  piece 
or  parcel  of  land,  with  the  buildings  thereon  and  fixtures  therein, 
situate  in  said  Lowell,  containing  about  twelve  thousand  one  hun- 
dred and  sixty-three  square  feet,  bounded  westerly  by  a street 
which  leads  from  East  Merrimack  street  by  land  of  the  Belvidere 
Manufacturing  Company,  called  Howe  street,  one  hundred 
and  four  feet,  northerly  by  land  of  said  Belvidere  Manufacturing 
Company  and  land  of  Mary  E.  Pearson,  as  is  supposed, 
one  hundred  and  seventeen  feet ; easterly  by  land  of  said 
Pearson,  suppose,  and  land  of  Widow  Daphna  Noyes,  one  hundred 
and  four  feet,  and  southerly  by  land  of  said  Widow  Noyes  and  said 
Belvidere  Manufacturing  Compan}’  one  hundred  and  seventeen  feet, 
all  the  angles  of  said  piece  being  right  angles. 

Together  with  their  title  and  interest  in  the  buildings,  mills, 
fixtures,  water  privileges,  and  all  privileges  and  appurtenances  be- 
longing to  said  several  lots,  or  to  any  of  them,  and  all  the  right, 


946 


Belvidere  Mills. 


title,  and  interest  of  said  minors  in  and  to  the  machinery  in  any 
and  all  the  mills  situate  on  the  premises  hereinbefore  conveyed.” 

Lib.  24,  fol.  442.  June  25th,  1860.  July  10th,  1860. 

Anna  E.  Richmond  to  Ripley  & Hammond. 

Release  of  dower  by  the  widow  of  A.  J.  Richmond. 

“The  real  estate,  mills,  machinery,  fixtures,  water-power  and 
water  privileges  by  Samuel  W.  Stickney,  guardian  of  James  H. 
Richmond  and  others,  conveyed  to  said  Ripley  and  Hammond  by 
the  foregoing  deed,  bearing  even  date  with  these  presents,  unto  the 
said  George  R.  Ripley  and  A.  G.  Hammond,  meaning  and  intending 
by  this  instrument  to  release  unto  the  said  George  Ripley  and  A. 
G.  Hammond  all  my  right,  title,  and  claim  to  dower  in  the  afore- 
said premises.” 

Hab.  in  fee,  with  all  appurtenances. 

Lib.  29,  fol.  498.  Dec.  10th,  1861.  Dec.  11th,  1861. 

Andrew  J.  Hammond  to  George  Ripley.  $2,500. 

Q.  C.  of  the  premises  conveyed  to  Ripley  and  himself  by 
Stickney. 

“ The  several  parcels  of  real  estate  conveyed  to  said  Riplej'  and 
nyself  b}T  Samuel  W.  Stickney,  guardian,  by  his  deed  to  us  dated 
June  25,  1860,  and  recorded  in  the  Registiy  of  Deeds  for  the 
Northern  District  of  Middlesex  at  Lowell  aforesaid,  in  book  24, 
p$ge  439,  to  which  deed,  or  the  record  thereof,  reference  is  to  be 
had  for  a description  of  the  premises.” 

Hab.  in  fee,  with  all  appurtenances. 

Lib.  44,  fol.  469.  Sept.  22d,  1865.  Oct.  6th,  1865. 

Joseph  and  Leonard  Church  and  George  Ripley  to  the  Belvidere 
Woollen  Co. 

“ A certain  parcel  of  land,  with  the  buildings  thereon  and  fix- 
tures therein,  including  the  w^ater- wheel  and  shafting  connected 
directly  with  said  wheel  (but  not  including  the  machinery  and  other 
shafting) , -situate  in  said  Lowell,  containing  about  twelve  thousand 
one  hundred  and  sixty-three  square  feet,  bounded  westerly  by  a 
street  wThich  leads  from  East  Merrimack  street  b}T  land  of  the  said 
Belvidere  Woollen  Manufacturing  Company,  called  Howe  street ; 
one  hundred  and  four  feet  northerly  by  land  of  said  Belvidere 
Woollen  Manufacturing  Company  and  land  supposed  of  Mary  E. 
Pearson ; one  hundred  and  seventeen  feet  easterly  by  said  land 
supposed  of  said  Pearson  and  land  supposed  of  widow  Daphna 
Noyes,  one  hundred  and  four  feet,  and  southerly  b}jr  land  supposed 
of  said  No}’es,  and  b}T  land  of  said  Belvidere  Woollen  Manufac- 
turing Company  one  hundred  and  seventeen  feet,  all  the  angles  of 
said  parcel  being  right  angles,  and  all  the  water  privileges,  and 
all  the  privileges  and  appurtenances  belonging  to  said  premises.” 

Hab.  in  fee,  with  all  privileges  and  appurtenances. 


Testimony  of  Joseph  P.  Frizell. 


947 


Wednesday,  Oct.  25,  1876. 

The  commissioners  met  at  9J  o’clock. 

Joseph  P.  Frizell,  recalled. 

Q.  (By  Mr.  Shattuck.)  Have  you  measured  the  Wamesit 
dam  ? 

A.  Yes,  sir. 

Q.  How  long  is  it? 

A.  The  falls  are  253  feet  long,  and  then  there  is  about  15  feet 
more  that  the  water  would  run  over,  if  it  should  rise  six  inches 
above  the  highest  point  of  the  flash-boards,  on  the  side  next  to 
the  canal. 

Q.  (By  Mr.  Butler.)  Where  the  timber  is  ? 

A.  Yes,  sir. 

Q.  Will  you  give  the  difference  of  level  on  the  flash-boards? 

A.  The  difference  between  the  highest  and  lowest  points  is 
about  3f  inches. 

Q.  Now,  will  you  give  the  amount  of  water  running  which 
would  flow  over  the  dam  at  different  heights  above  the  lowest 
point  of  the  dam,  every  day  water  passes? 

A.  I calculated  it  on  the  assumption  that  the  flash-boards  have 
a uniform  slope  from  the  highest  to  the  lowest  point.  That  may 
not  be  exactly  correct,  but  it  is  approximately  correct.  At  a 
depth  of  1 inch,  it  would  be  2J  cubic  feet  per  second  ; at  a depth 
of  2 inches,  it  would  be  13  cubic  feet  per  second  ; 3 inches,  36  ; 4 
inches,  72;  5 inches,  120;  6 inches,  178;  7 inches,  244;  8 
inches,  315;  9 inches,  394;  10  inches,  478  ; 11  inches,  568  ; 12 
inches,  662  cubic  feet  per  second. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  This  you  calculated  upon  the  supposi- 
tion that  there  was  a uniform  slope  from  side  to  side  in  the  flash- 
boards  ? 

A.  A uniform  slope  from  the  highest  point  to  the  lowest  point. 

Q.  Is  that  so  in  fact  at  all? 

A.  It  is  approximately  correct.  The  levels  were  taken  at  a 
number  of  different  points.  That  is  not  far  from  the  truth. 

Q.  Now,  is  your  calculation  made  upon  the  flowing  over  of 
water  as  over  a straight  weir? 

A.  It  is,  in  those  small  depths.  It  would  not  be  correct  if  the 
water  should  get  much  higher  than  I have  stated. 

Q.  No,  no ; is  your  calculation  made  upon  the  formula  given 
for  water  flowing  over  a straight  weir? 

A.  Yes,  sir. 


948 


Belyidere  Mills. 


Q.  Have  you  a profile,  and  can  you  give  us  the  form  of  that 
dam?  I mean,  the  form  measured  on  a horizontal  line.  It  is  a 
zig-zag  line? 

A.  Yes,  it  is  very  crooked  ; I have  not  got  the  plan. 

Q.  How  many  feet  long  do  you  say  is  the  longest  space? 

A.  I can’t  say ; some  60  feet,  perhaps  ; I am  not  certain  about 
that. 

Q.  Then  there  are  some  crooks,  not  more  than  10  or  15  feet,  are 
there  not? 

A.  I think  the  straightest  part  is  about  28  feet. 

Q.  How  many  crooks  are  there  in  the  dam?  Have  you  a pro- 
file of  it? 

A.  I have  not  got  a plan  of  it. 

Q.  Now,  is  there  any  formula  known  to  engineers,  by  which 
the  water  flowing  over  such  a dam,  in  its  extreme  length,  can  be 
measured  ; and,  if  so,  where  is  that  formula  ; in  what  book  or  what 
publication,  an}Twhere? 

A.  I don’t  know  of  any  formula  specially  calculated  for  that 
dam. 

Q.  That  is  not  the  question.  Do  you  think  that  is  a fair 
answer?  Is  there  any  formula  known  to  engineers,  by  which  }rou 
can  measure  over  a crooked  weir  having  various  sharp  angles 
in  it? 

A.  The  ordinary  formula  applies  very  well. 

Q.  I did  not  ask  you  that.  Again,  Mr.  Frizell,  is  there  any  for- 
mula laid  down  anywhere  for  measuring  the  water  over  a crooked 
weir? 

A.  Not  that  I know  of. 

Q.  Is  there  any  record  that  gives  the  amount  of  variation  that 
there  would  be  because  of  the  different  angles  at  which  the  weir 
was  made? 

A.  I don’t  know  of  any. 

Q.  Do  you  know  of  any  experiments  made  by  which  the  accu- 
racy of  measurements  over  a dam  formed  as  that  is,  have  ever 
been  tested? 

A.  No,  sir. 

Q.  Do  you  know  of  any  formula  by  which,  with  those  angles, 
it  could  be  tested? 

A.  I don’t  know  of  any  formula ; I presume  that  it  could  be 
figured  out. 

Q.  Are  all  of  your  measurements  of  flowing  water  over  a weir 
ascertained  by  certain  formulas  taken  from  engineering  works? 

A.  Yes,  sir. 

Q.  Have  you  ever  measured  before  the  amount  of  water  flow- 
ing over  a dam  shaped  like  that  one? 

A.  No,  sir. 

Q.  Then  you  have  simply  taken  a dam  of  the  number  of  feet 
that  that  is  in  length,  assuming  its  height,  and  applied  the  for- 
mula for  a straight  dam  to  it  — is  not  that  all? 

A.  That  is  all. 

Q.  As  an  engineer,  are  you  not  informed  that  one  advantage  of 
a dam  with  its  roll-way  in  different  angles,  is,  that  they  will  dis- 


Testimony  of  Joseph  P.  Frizell. 


949 


charge  more* water  than  a straight  roll-way?  Isn’t  it  made  so  for 
that  purpose,  frequently? 

Mr.  Siiattuck.  There  may  be  a misunderstanding.  Do  you 
mean  a dam  built  across  a river  in  that  way? 

Mr.  Butler.  I never  knew  a dam  built  across  anj^thing  else 
but  a river  or  a stream. 

Mr.  Shattuck.  Do  you  mean  to  ask  him  whether  that  dam 
would  discharge  more  water  if  that  length  was  straight,  instead  of 
being  crooked  ? 

Mr.  Butler.  Pardon  me ; I mean  exactly  what  I say,  and  I 
would  like  the  witness  to  answer  the  question. 

Mr.  Shattuck.  I don’t  understand  it. 

Q.  As  an  engineer,  are  you  not  informed  that  one  advantage  of 
a dam  with  its  roll-way  in  different  angles  is,  that  they  will  dis- 
charge more  water  than  a straight  roll-way.  Isn’t  it  made  so  for 
that  very  purpose? 

A.  I have  no  doubt  that  it  is  made  so  for  that  purpose  ; but  I 
do  not  think  it  discharges  more  water.  It  is  often  made  so  from 
a misapprehension. 

Q.  You  think  it  will  not  discharge  more  water? 

A.  No,  sir ; no  more  than  a straight  dam  of  the  same  length. 

Q.  Would  a gauging  upon  such  a dam  be  of  any  value  to  deter- 
mine the  flow  of  water  ? 

A.  They  would  be,  as  long  as  the  depths  were  small. 

Q.  Give  me  the  reason  why  the  value  of  a gauging  would 
change  with  the  depth  of  water.  If  it  is  correct  for  one  inch,  why 
isn’t  it  for  two? 

A.  It  is  undoubtedly  correct  for  2 inches,  or  6 inches  ; when 
you  get  up  to  36  inches  probably  it  would  run  over  the  dam  very 
much  as  though  it  was  a straight  dam  from  one  side  of  the  river 
to  the  other. 

Q.  Would  not  much  more  water  go  over  than  there  would  over 
a straight  dam,  running  from  one  extremity  to  the  other?  When 
the  water  gets  up  high,  you  think  more  would  run  over  a dam  like 
this,  than  over  a straight  dam  ? 

A.  I mean  when  the  water  rises  to  a considerable  height  — two 
or  three  feet. 

Q.  I don’t  care  how  high  you  put  it.  When  the  water  is  high, 
will  more  water  run  over  such  a dam  as  this  than  would  run  over 
a straight  dam,  in  your  judgment? 

A.  Less  water  would  run  over  this  dam  than  over  a straight 
dam  of  the  same  length. 

Mr.  Shattuck.  What  do  you  mean  by  these  questions?  I 
don’t  understand  them.  There  is  an  obscurity  in  talking  about  a 
straight  dam. 

Mr.  Butler.  I mean  a straight  dam  of  the  same  length.  I did 
not  think  it  necessary  to  put  it  in  every  time. 

Commissioner  Russell.  There  might  be  a straight  dam  across 
that  river  which  would  not  be  of  the  same  length.  I do  not  think 
the  question  is  free  from  that  ambiguity. 

Mr.  Butler.  I leave  out  that  river  entirely.  I have  learned  in 
this  hearing  that  the  Concord  and  the  Sudbury  rivers  are  different 


950 


Belvidere  Mills. 


from  all  other  streams  under  heaven.  Therefore,  I do  not  put 
anything  in  on  that  subject. 

Commissioner  Russell.  I do  not  know  that  you  appreciate  the 
point  I mean  to  make.  It  is,  that  a straight  dam  from  one  side  of 
a river  to  the  other  is  a different  thing  from  a zig-zag  dam  across 
the  same  river,  because  the  straight  dam  might  not  be  more  than 
half  the  length  of  the  zig-zag  dam. 

Q.  I am  taking  a straight  dam  of  the  same  length.  Would 
more  water  run  over  a straight  than  over  a crooked  one  when  the 
water  is  high  ? 

A.  When  the  water  is  high,  more  water  would  run  over  a 
straight  dam  than  over  a crooked  one  of  the  same  length. 

Q.  When  the  water  is  low,  would  more  or  less  water  run  over  a 
straight  dam  than  a crooked  of  the  same  length? 

A.  You  might  say,  for  any  depth  of  water,  more  water  would 
run  over  a straight  dam  than  over  a crooked  one  of  the  same 
length,  but  the  difference  is  very  slight  for  slight  depths  of  water. 

• Q . Because  there  is  a small  amount  of  water  running?  But 
you  think  less  water  would  run  over  that  dam  in  its  present  form 
than  would  if  it  was  the  same  length  and  straight  ? 

A.  I think  so. 

Q.  How  much  less? 

A.  The  difference  would  hardly  be  worth  taking  account  of  as 
long  as  the  depth  was  less,  probably,  than  six  inches. 

Q.  It  would  hardly  be  worth  taking  account  of? 

A.  I think  not. 

Q.  How  many  feet  of  water  would  run  over  with  a depth  of  six 
inches  ? 

A.  A depth  of  six  inches  would  flow  about  1.2  cubic  feet  per 
second  for  every  foot  in  length  of  the  dam. 

Q.  That  would  give  us  about  300  feet? 

A.  It  would  if  the  depth  was  uniform  all  over  the  length  of  the 
dam.  That  is,  if  the  top  of  the  dam  was  level. 

Q.  If  it  was  not  level,  more  would  run,  wouldn’t  it? 

A.  It  depends  upon  how  you  are  reckoning  the  depth.  I am 
talking  about  the  depth,  reckoning  from  the  lowest  point  of  the 
dam. 

Q.  Is  there  any  formula  given  for  measuring  the  water  on  a 
weir  which  is  lower  in  the  centre  than  it  is  at  the  ends? 

A.  Yes  ; there  are  formulas  for  that  case. 

Q.  That  is,  for  a dam  running  down  to  a centre? 

A.  Yes,  sir. 

Q.  Who  gives  those? 

A.  Professor  Thompson,  of  Belfast  College,  gives  a formula  for 
that  case. 

Q.  Did  you  use  that  formula? 

A.  No,  sir. 

Q.  Why  not? 

A.  I could  do  better  by  the  ordinary  formula. 

Q.  You  had  no  confidence  in  that  formula,  had  you? 

A.  That  don’t  follow. 

Q.  Then  why  didn’t  you  use  it? 


Testimony  of  Joseph  P.  Frizell. 


951 


A.  I could  do  better  by  the  ordinary  formula,  by  dividing  the 
dam  into  lengths  often  feet,  and  computing  the  discharge  for  each 
length. 

Q.  Did  you  do  so? 

A.  I did. 

Q.  Computed  the  discharge  for  each  ten  feet? 

A.  Each  ten  feet  in  length. 

Q.  Did  you  have  the  measurement  for  each  ten  feet? 

A.  No,  sir,  I didn’t  have  the  measurement  for  each  ten  feet. 

Q.  Now,  I should  like  to  ask  you  a question,  as  an  engineer, 
whether  you  think  that  determining  the  amount  of  water  in  a river 
running  over  a weir  of  the  shape  that  that  dam  would  be,  both  in 
its  profile  and  in  its  plan,  would  be  a means  of  determining  with 
any  considerable  accuracy  the  run  of  that  river? 

A.  I stated  at  the  commencement  that  it  was  only  an  approxi- 
mate result. 

Q.  Well,  ‘“approximate”  — a man  approximates  heaven  when 
he  does  one  good  act.  How  near  would  the  approximation  be? 

A..  I don’t  think  it  is  very  far  from  the  truth.  The  only  chance 
of  error  is  in  the  dam  differing  very  much  from  the  supposition 
that  it  slopes  Uniformly  from  the  lowest  point  to  the  highest  point. 
As  I had  the  levels  on  each  angle  of  the  dam,  I can  say  that  the 
supposition  is  not  veiy  far  from  the  truth. 

Q.  Was  the  water  running  over  at  the  time? 

A.  No,  not  when  the  levels  were  taken. 


Re-direct. 

Q.  (By  Mr.  Shattuck.)  I should  like  to  have  you  state  what, 
in  your  judgment,  is  the  largest  allowance  to  be  made  for  error  on 
account  of  the  angles  in  the  dam,  and  on  account  of  the  assump- 
tion that  there  was  a uniform  line  from  the  lowest  point  to  the 
highest  point? 

Mr.  Butler.  I object  to  that  question,  on  the  ground  that  he 
is  not  competent  to  give  a judgment  on  that  point.  He  threw 
away  the  only  formula  which  deals  with  that  question,  and  he 
never  has  tested  the  amount  of  inaccuracy  in  any  way  or  form,  as 
he  swears,  and  there  is  no  formula  known  to  engineering  science 
by  which  he  could  get  at  it,  as  he  swears. 

Q.  Is  not  the  formula  that  you  used  for  every  ten  feet  a correct 
one? 

A.  It  is  called  so  ; it  is  the  formula  that  is  universally  employed 
in  this  region  of  country  for  measuring  water  over  weirs. 

Commissioner  Russell.  Is  the  question  objected  to? 

Mr.  Butler.  I will  not  object,  but  I will  try  to  show  the  utter 
folly  of  his  judgment,  if  he  gives  one. 

A.  For  the  depth  of  six  inches,  for  instance,  I should  not  ex- 
pect to  find  the  result  erroneous  more  than  25  cubic  feet  per 
second. 


952 


Belvidere  Mills. 


Re-cross. 

Q.  (By  Mr.  Butler.)  A single  word  upon  that,  Mr.  Frizell. 
Have  you  ever  had  any  means  of  testing  or  knowing  anything 
upon  that  subject,  — what  the  difference  would  be  ; and  is  there 
any  engineering  book  which  treats  of  that?  I will  divide  the 
question.  In  the  first  place,  have  you  yourself  ever  made  any  ex- 
periments tending  to  show  the  difference  between  the  two  meas- 
urements, one  upon  a straight  dam  and  the  other  upon  a danft  which 
was  zig-zag  in  form  and  crooked  in  profile? 

A.  I have  never  made  any  experiments  on  that  matter. 

Q.  Is  there  any  engineering  book  which  shows  any  experiments 
and  lays  down  any  result,  testing  that,  except  Thompson’s,  which 
you  threw  away  ? 

A.  I am  not  aware  that  there  is. 

[Mr.  D.  S.  Richardson  put  in  a table  of  measurements  at  Massic 
Falls,  made  by  Mr.  Frizell,  marked  “ J.  P.  F.  A.”] 

Mr.  Butler.  I would  like  to  examine  Mr.  Frizell  a little  about 
this  table,  because  the  only  thing  I wanted  in  it  he  left  out,  as,  of 
course,  he  would. 

Q.  I asked  you  to  give  me  the  amount  of  water  diverted  from 
the  Sudbury  river  and  the  quantitj’'  which  would  pass  the  dam,  had 
none  been  diverted,  allowing  three  days  for  the  diverted  water  to 
reach  Lowell  from  South  Framingham,  in  cubic  feet  per  second. 
You  have  left  both  of  those  colums  blank.  Wh3?? 

A.  I have  not  been  able  to  get  the  tables. 

Q.  Why?  __ 

A.  Because,  as  I am  told,  the  manuscript  tables  are  in  the 
hands  of  the  printer. 

Mr.  Butler.  The  tables  were  printed  the  next  morning,  Mr. 
Child  says. 

Q.  Did  you  call  on  Mr.  Child  for  them? 

A.  I did  not  call  on  Mr.  Child. 

Q.  On  whom  did  you  call  ? 

A.  I called  on  Mr.  Davis. 

Q.  When  did  you  call  on  Mr.  Davis? 

A.  The  morning  after  I was  in  here. 

Q.  When  was  this  table  of  yours  completed,  — this  piece  of 
paper  under  my  hand? 

A.  It  was  completed  on  Monday.  I intended  to  fill  up  those 
columns. 

Q.  I didn’t  ask  you  your  intention.  When  was  this  completed? 

A.  On  Monday. 

Q.  When  did  you  ask  Mr.  Davis  for  the  tables  by  which  this 
could  be  completed? 

A.  I went  to  Mr.  Davis’s  office  on  Monday  morning  to  get  the 
evidence  that  was  to  be  found, — all  that  was  to  be  got. 

Q.  Well,  will  you  do  this  now? 

A.  Yes,  sir ; as  soon  as  I can  get  the  paper  I will  fill  out 
those  columns. 

Mr.  Butler.  Very  well ; then  I will  not  object  to  having 
that  come  in. 


“ J.  P.  P,  A 


Testimony 

OF 

Joseph  P.  Frizell 

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Day  of 
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Wednesda 

Thursday 

Friday.  . 

Saturday 

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Wednesda 

Thursday 

“ J.  P.  F.  A.”  — Continued, 


954 


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Testimony  of  Clemens  Herschel. 


955 


Clemens.  Herschel,  recalled. 

Q.  (By  Mr.  Butler.)  You  know  the  plan  of  the  Wamesit 
clam,  do  you  not? 

Mr.  Shattuck.  I object.  The  witness  declined  to  answer  any 
question  in  relation  to  that.  I examined  him  very  carefully  about 
the  length  of  the  Wamesit  dam,  and  he  would  not  answer  the 
question. 

Mr.  Butler.  Pardon  me  ; I am  not  going  to  ask  him  a question 
about  the  length  of  it  now. 

Q.  You  know  the  plan  of  the  Wamesit  dam,  — that  it  is  a zig- 
zag one  ? 

A.  I am  familiar  with  the  general  shape  of  the  Wamesit  dam. 

Q.  Now,  assume  that  the  dam,  as  made  by  the  flash-boards, 
varies  so  as  to  be  about  3f  inches  lower  in  the  centre  than  at  the 
ends, — the  flash-boards  not  being  of  uniform  height,  so  that  the 
lowest  point  is  3f  inches  lower  than  the  highest,  — taking  those 
two  elements,  I want  to  ask  }Tour  opinion  as  an  engineer,  whether 
the  measurements  of  water  over  such  a dam,  calculated  by  the 
formula  for  a straight  weir,  would  be  of  any  value  in  determining 
the  quantity  of  water  passing  over  it,  and,  if  any,  how  much 
value? 

A.  When  I set  out  to  measure  the  flow  of  Concord  river,  I 
talked  this  dam  over  with  Mr.  Davis  — 

Mr.  SitATTUck.  That  is  not  competent  — what  he  did  with  Mr. 
Davis. 

Mr.  Butler.  Yes  : he  wrent  to  work  to  make  experiments  upon 
that  very  question,  to  see  if  he  could  not  measure  the  water  run- 
ning over  Wamesit  dam. 

Witness.  We  separately  and  jointly  — 

Mr.  Shattuck.  I object  to  that ; any  consultation  is  clearly 
incompetent. 

Witness.  Well,  I came  to  the  conclusion,  and  I am  of  the 
opinion  now  — 

Commissioner  Russell.  Now  you  come  to  what  is  admissible. 

Witness.  I came  to  the  conclusion,  and  I am  at  present  of  the 
opinion,  that  a measurement  taken  on  that  dam  would  be  unre- 
liable : and  as  to  its  weight  and  what  value  it  has,  if  any,  I should 
say,  compared  with  a measurement  taken  on  a weir  of  proper  con- 
struction, it  has  no  value.  It  would  have  no  weight  compared 
with  a measurement  properly  made.  The  dam  is  a zig-zag  dam  in 
shape  ; portions  of  it  run  almost  fore  and  aft  in  the  direction  of 
the  current,  and,  of  course,  on  the  line  fore  and  aft  with  the  trend 
of  the  current,  it  cannot  act  like  a dam  that  is  drawn  across  the 
current. 

Q.  That  is,  if  I understand  you,  a portion  of  the  dam  runs 
almost  in  conformity  with  the  current  of  the  river? 

A.  There  are  zig-zags  of  various  directions.  There  are  all 
sorts  of  zig-zags. 

O o 

Q.  Some  of  those  zig-zags  are  nearly  at  right  angles,  are  they 
not? 


956 


Belyidere  Mills. 


A.  I think  they  are. 

Q.  So  that  it  would  bring  a portion  of  the  dam  directly  in  ac- 
cordance with  the  current  of  the  river,  at  certain  places? 

A.  Yes,  sir. 

Q.  So  that  the  water  would  have  to  turn  before  it  goes  over, 
and  go  over  at  right  angles? 

A.  The  dam  always  did  leak  when  I knew  it ; I don’t  know  how 
tight  it  is  at  present. 

Q.  Now,  I will  put  the  question  directly  which  Brother  Shattuck 
objected  to.  When  you  were  called  upon  by  the  city  to  get  the 
amount  of  water  flowing  this  year  in  the  Concord  river,  did  you 
examine  the  dam,  and  go  into  it  so  far  as  to  form  an  opinion 
whether  it  was  possible  to  to  make  any  accurate  measurement  over 
that  dam  ? 

A.  I did  not  go  up  again  to  examine  it.  I spoke  of  it  from 
my  knowledge  of  it. 

Q.  Wanting  a place  to  measure  the  river,  did  you  determine 
that  it  could  not  be  done  there  ? 

A.  Yes,  sir. 


Cross-examination . 

Q.  (By  Mr.  Shattuck.)  Mr.  Herschel,  if  Mr.  Frizell,  in  his 
measurement,  assumed  that  the  same  amount  of  water  would  run 
over  this  crooked  dam  that  would  run  over  a straight  dam,  and 
measured  on  that  theory,  his  error  would  be,  that  he  would  esti- 
mate too  much,  wouldn’t  it?  That  is,  he  would  get  too  much 
water,  because  it  would  run  more  slowly  over  a dam  that  is  on  the 
same  line  with  the  water-course,  than  it  would  over  a dam  that  is 
across  the  water-course.  Would  not  his  error  be  that  he  would 
make  too  much  ? 

A.  Yes,  sir  ; I should  think  it  would. 


Samuel  N.  Wood,  recalled . 

Q.  (By  Mr.  D.  S.  Richardson.)  You  were  not  asked  the  ques- 
tion as  to  the  size  of  your  building,  I believe  ? 

A.  I think  not. 

Q.  Will  you  state  what  you  wish  as  to  that? 

A.  The  building  is  two  stories  stone,  and  one  story  wood,  with 
a slated  roof,  and  it  is  50X30  feet.  Three  stories,  with  a base- 
ment. 

Q.  Is  that  all  you  wish  to  state  about  the  structure? 

A.  Yes,  sir. 


Cross-examination. 

Q.  (By  Mr.  Butler.)  Your  two  stories  of  stone  come  up  to 
the  railroad  track  on  one  side,  and  do  not  rise  above  the  railroad 
track  on  the  further  side  much? 

A.  No  ; it  is  a little  above  the  railroad  track. 

Q.  Just  about  level  with  the  underpinning? 


Testimony  of  Samuel  N.  Wood 


957 


A.  Oh,  it  is  in  the  bank,  you  know.  It  is  a stone  building 
Q.  Oh,  yes  ; it  is  a good  building  ; that  is  not  the  point.  One 
side  of  the  stone  part  of  the  building  is  made  by  the  bank? 

A.  Yes,  sir ; the  one  next  to  the  bank  is  a solid  wall,  five  feet 
thick. 

Q.  And  then  the  two  stories  in  the  rear? 

A.  Four  feet  thick,  I think.  It  is  a solid  building  for  storage. 
That  is  for  the  elelevator. 

Q . There  is  only  one  story  of  wood  on  the  front  side  of  the 
building,  is  there? 

A.  The  whole  length  of  the  building. 

Q.  Above  the  bank  on  the  upper  side? 

A.  Yes,  sir. 

WHIPPLE  TO  PATCH. 

Know  all  men  by  these  Presents , That  I,  Oliver  M.  Whipple,  of  Lowell,  County  of  Middle- 
sex and  Commonwealth  of  Massachusetts,  in  consideration  of  forty  thousand  dollars  to  me 
paid  by  Ephraim  B.  Patch,  of  Lowell  aforesaid,  the  receipt  whereof  I do  hereby  acknowl- 
edge, do  hereby  give,  grant,  bargain,  sell  and  convey  unto  said  Patch  the  following-described 
parcels  of  land,  situated  in  Lowell  aforesaid,  as  follows  : Beginning  at  the  southeasterly  corner 
of  the  premises,  at  the  easterly  side  of  a contemplated  new  street  to  be  thirty  feet  wide ; 
thence  westerly  across  said  contemplated  street  about  thirty  feet  to  the  northeasterly  corner 
of  land  of  Lowell  Bleachery  Company,  at  a stone  bound;  thence  westerly  by  said  company’s 
land  to  the  southwesterly  corner  of  a lot  of  land  owned  by  S.  N.  Wood ; thence  northerly  by 
said  Wood’s  land  about  fifty  feet  to  a stake  at  the  northeasterly  corner  of  said  Wood’s  land; 
thence  westerly  by  said  Wood’s  land  to  River-meadow  brook;  thence  southerly  by  said 
brook  about  twenty  feet  to  a stake  at  the  northerly  side  of  a passage-way  or  street  thirty  feet 
wide;  thence  westerly  by  said  passage-way  or  street  to  a stake  at  corner  of  Newhall  street, 
at  a point  which  is  about  thirty  feet  northeasterly  of  the  stone  bound  at  the  most  northerly 
corner  of  land  owned  by  said  Lowell  Bleachery  Company ; thence  westerly  about  forty  feet 
across  Newhall  street  to  a stake  at  the  intersection  of  Newhall  with  Chambers  street;  thence 
westerly  by  the  northerly  side  of  Chambers  street  to  land  sold  to  Leland ; thence  northerly 
by  said  Leland’s  land  about  twenty-seven  feet  to  land  formerly  of  Kidder ; thence  north  82°  5' 
east  by  said  Kidder’s  land  about  eighty-eight  feet,  to  a corner;  thence  north  8°  45'  west  about 
one  hundred  eighteen  and  50-100  to  a corner  of  a wall  at  Mather’s  and  Kidder’s  land;  thence 
south  88°  30'  east  about  three  hundred  fifty -three  and  19-100  feet  by  land  of  Mathers  and 
others,  to  the  corner  of  a wall  or  fence ; thence  north  45°  15'  east  by  a wall,  and  in  the  same  direc- 
tion across  Crosby  street  to  a wall  at  land  formerly  of  Lyon  about  three  hundred  and  fifty 
feet;  thence  north  41°  east  fifty-seven  feet,  to  a street  called  Lyon  street;  thence  in  the  same 
direction  across  said  Lyon  street,  and  to  a to  a wall;  thence  south  48°  20'  east  by  land  of  D. 
Davis  and  others  one  hundred  and  ninety-eight  feet  to  Kinsman  street;  thence  north  40°  55' 
east  by  land  of  W.  H.  Parker  to  the  northeasterly  corner  of  said  Parker’s  land ; thence  north 
47°  35'  west  by  land  of  said  Parker  and  land  of  Daniel  Barnes  to  Central  street,  at  the 
westerly  corner  of  lot  No.  102,  sold  to  II.  W.  Miller;  thence  north  47°  55'  east  by  Central 
street  to  the  northwesterly  corner  of  lot  No.  100;  thence  north  25°  50'  east  by  Central  street 
to  the  corner  of  Whipple  street;  thence  by  the  same  course  across  Whipple  street  to  land 
formerly  of  Comins,  at  the  northwesterly  corner  of  lot  No.  73;  thence  south  52°  30'  east  by  land 
of  said  Comins  and  land  of  heirs  of  P.  O.  Richmond  about  five  hundred  and  nineteen  feet  to 
a stake;  thence  south  6e  15'  east  about  one  hundred  and  seventy-four  feet  by  said  heirs’  land 
to  a wall;  thence  north  86°  east  by  said  heirs’ land  about  two  hundred  and  twenty-five 
feet  to  a stone  bound  at  Lawrence  street ; thence  south  3£e  east  by  Lawrence  street  to  the 
northeasterly  corner  of  a lot  sold  to  Charles  Stott;  thence  westerly  by  said  Stott’s  land  to  a 
stake;  thence  southerly  by  said  Stott’s  land  to  a stake;  thence  easterly  by  said  Stott’s  land  to 
Lawrence  street ; thence  southerly  by  Lawrence  street  about  three  hundred  feet  to  an  iron  bolt 
in  the  ground,  at  the  intersection  of  Lawrence  with  the  southerly  side  of  a street  (leading  from 
said  Lawrence  street  to  the  workshop  of  the  grantor)  which  is  to  be  forty  feet  wide;  thence 
north  79°  west  by  land  of  grantor  about  two  hundred  fifty-one  and  50-100  feet  to  an  iron  bolt  in 
the  ground,  which  is  ten  feet  easterly  of  the  easterly  rail  of  the  railroad ; thence  south  56J°  west 
by  land  of  grantor  about  forty  feet  to  an  iron  bolt  in  the  ground  ten  feet  easterly  of  the  easterly 
rail  of  the  railroad,  and  on  the  easterly  side  of  afore-mentioned  contemplated  new  street; 
thence  south  &b°  west  on  the  easterly  side  of  last-named  street  by  land  of  grantor  two  hun- 
dred thirty-one  and  50-100  feet  to  the  bound  begun  at.  The  following  lots  have  been  pre- 
viously sold,  and  are  reserved  and  excepted  from  this  conveyance : A lot  and  b house,  to 
John  Walsh  ; one  lot  and  b house,  sold  to  John  Higgins;  a lot  and  house  north  side  of  Swift 
street,  to  Jeremiah  Murphy;  also  one  lot  adjoining,  to  Bernard  M’Laughlin;  a lot  and  house 
at  the  southerly  corner  of  Lawrence  and  Swift  streets,  to  J.  B.  Brown ; a lot  adjoining,  to 
Margaret  Conners;  also,  adjoining  last  lot,  Nos.  45,  46,  47,  48  and  49,  to  James  Meadowcroft; 
also,  on  south  side  of  same  street,  Nos.  41  and  42,  to  Sherman  & Maynard ; lots  25  and  26, 
Lawrence  and  north  side  of  Watson  streets,  to  George  W.  Norris;  also,  adjoining,  lots  27, 
28,  29,  30  and  31,  to  James  Meadowcroft ; also,  lots  No.  32  and  33,  to  E.  B.  Patch,  and  lots  34  and 
35,  to  Sherman  & Maynard,  and  No.  36,  at  the  corner  of  Watson  and  Whipple  streets,  to 
Samuel  Lawrence ; also,  lots  37,  38  and  39,  fronting  Whipple  street,  to  Eliza  Newhall;  also, 
on  the  northerly  side  of  Crosby  street  and  corner  of  a new  street  out  of  the  northerly  side  of 
said  Crosby  street,  to  P.  Donnelly,  .and  a lot  adjoining  on  Crosby  street,  to  Michael  Tully ; 
also,  lots  228,  229  and  230,  on  the  southerly  side  of  Crosby  street,  to  Daniel  Smith ; also,  lots 
131,  132,  133  and  134,  on  north  side  of  Crosby  street,  and  lots  135,  136,  137  and  138  on  the  west 


958 


Belvidere  Mills 


side  of  Newhall  street,  to  Eliza  Newhall ; also,  on  the  westerly  side  of  said  new  street  lead- 
ing from  Crosby  street,  one  lot  each  to  John  Keating,  Ann  Hoye  and  Rachel  Kidder;  also,  a 
lot  on  the  easterly  side  of  same  street,  to  John  Keating;  also,  lot  102  to  H.  W.  Millar,  lot  100 
to  Cheney  & Huse,  and  No.  99  to  Smith,  all  on  the  southerly  side  of  Central  street;  also,  lots 
sold  to  Joseph  Tilton,  on  Central,  Whipple  and  Chase  streets.  And  the  grantor,  for  the  con- 
sideration aforesaid,  grants  and  conveys  unto  the  said  grantee  one  other  parcel  of  land  lying 
between  Lawrence  street  and  Concord  river,  described  as  follows : Commencing  at  a stone 
bound  at  Lawrence  street,  at  the  southwesterly  corner  of  a lot  of  land  sold  by  said  grantor 
to  Smith  & Meadowcroft,  in  August,  1862;  thence  easterly  and  southerly  and  by  various 
courses,  by  bounds  at  land  of  said  Smith  & Meadowcroft,  Joshua  Mather  and  A.  H.  Chase,  to 
Concord  river ; thence  southerly  by  said  Concord  river  to  the  northerly  side  of  the  bridge 
leading  over  said  river  to  Lowell  Cemetery ; thence  northerly  and  by  various  courses  by  said 
bridge  and  Lawrence  street  to  the  bound  begun  at.  Also,  all  the  right,  title  and  interest  of 
the  grantor  in  any  streets  north  of  River-meadow  brook;  also,  all  his  right,  title  and  interest 
in  and  to  any  land  and  water  rights  situated  between  the  westerly  side  of  said  Concord  river 
and  land  of  said  Smith  & Meadowcroft,  Mather  and  Chase.  Also,  one  other  parcel  of  land, 
situated  on  the  easterly  side  of  Concord  river,  bounded  and  described  as  follows  : Commenc- 
ing at  the  northerly  side  of  the  county  road  or  street  leading  from  Concord  river  by  Lowell 
Cemetery,  at  a wall  at  the  westerly  side  of  said  cemetery  land;  thence  northerly  by  said  wall 
to  land  sold  by  grantor  to  Josiah  G-ates ; thence  westerly  by  said  Grates’  land  twenty  feet  to 
a stake ; thence  northerly  by  the  easterly  side  of  a passage-way,  by  stakes  at  different  angles, 
described  in  said  Grates’  deed,  about  nine  hundred  and  twenty-two  feet,  to  a stake  at  the 
corner  of  said  Grates’  land,  and  at  land  of  grantor;  thence  easterly  by  land  of  said  Gates 
by  a fence  and  wall  to  land  of  heirs  of  Zadoc  Rogers;  thence  northerly  by  said  heirs’ 
land  on  a wall  to  a corner;  thence  westerly  by  said  heirs’  land  to  a corner;  thence 
northerly,  partly  on  a wall  and  by  the  course  of  said  wall  to  a bound  at 
said  heirs’  land;  thence  westerly  by  said  heirs’  land  to  Concord  river,  at  a 
point  nearly  opposite  the  mouth  of  River-meadow  brook;  thence  southerly  by  said 
Concord  river  to  the  northerly  side  of  the  bridge  leading  over  said  river  to  Lowell 
cemetery ; thence  easterly,  and  by  the  northerly  side  of  said  bridge  and  a county  road  or 
street,  to  the  point  begun  at.  Reserving  in  said  last  parcel  forty  feet  in  width  along  the  west- 
erly line  of  said  cemetery  land  to  land  ol  said  Gates,  as  a common  way  or  street  for  the  use 
of  the  abuttors  thereon,  and  their  heirs  and  assigns  forever.  Also  reserving  to  the  grantor, 
and  his  heirs  and  assigns,  the  right  to  maintain  a pipe  across  conveyed  premises,  now  used 
for  conducting  water  from  a spring  to  premises  now  occupied  by  said  grantor.  And 
the  grantor,  for  consideration  before  named,  conveys  to  said  grantee  all  his  unsold  water- 
power, water-rights  and  privileges  on  Concord  river,  with  all  his  rights  to  maintain  the 
present  dam  across  said  river  at  its  present  height,  with  his  right  to  use  the  eight-inch  flash- 
boards  thereon,  as  heretofore  used ; with  all  his  rights  of  flowage,  wherever  situated,  and 
however  obtained ; and  all  rights  of  grantor  to  discharge  water  into  River-meadow  Brook. 
And  the  grantor  also  conveys  to  said  grantee,  and  his  heirs  and  assigns,  the  right  to  collect, 
for  the  purpose  of  repairing  said  dam  and  canal,  all  money  due,  and  becoming  due,  from  the 
former  grantees  of  said  Whipple,  and  their  heirs  and  assigns,  of  water-power  and  rights  for 
the  maintenance  of  said  permanent  dam  and  banks  of  canal  on  conveyed  premises.  Also  the 
right  to  restrict  said  former  grantees,  their  heirs  and  assigns  severally,  to  the  quantity 
of  water  purchased  of  said  Whipple  by  them.  And  this  deed  is  made,  subject  to  former 
grants  of  water-power  and  water-rights,  and  rights  of  way  to  Smith  & Meadowcroft,  Joshua 
Mather,  Charles  Stott,  Lowell  Bleachery,  S.  N.  Wood  and  A.  H.  Chase,  and  subject  to  the 
provision  that  the  said  grantee,  and  his  heirs  and  assigns,  shall  forever  maintain  said 
permanent  dam,  and  when  needed,  use  the  eight-inch  flash-boards  thereon,  as  he  may  have  a 
right  to  do,  and  forever  maintain  and  keep  in  repair  the  banks  of  the  said  canal  which  furnishes 
water  to  said  other  grantees  of  said  'Whipple;  and  shall  so  enlarge  said  canal,  when  needed, 
that  it  shall  be  of  sufficient  capacity  to  carry  and  discharge  not  less  than  two  hundred  and 
eighty-eight  cubic  feet  of  water  per  second,  of  eleven  hours  per  day,  of  six  days  in  the  week. 
Also  subject  to  rights  of  way,  and  in  any  rights  of  streets  hitherto  granted  by  said  Whipple. 
And  the  grantor,  for  consideration  before  named,  hereby  conveys  to  said  grantee  a certain 
other  parcel  of  land,  situated  in  said  Lowell,  containing  thirteen  thousand  and  fifty-seven 
square  feet,  bounded  as  follows  : Beginning  at  Wamesit  street,  at  the  northeasterly  corner  of 
a lot  of  land  conveyed  by  Robert  Taylor  to  the  City  of  Lowell,  and  at  the  southeasterly 
corner  of  a lot  formerly  of  Curtis  Morse;  thence  southeasterly  on  the  southwesterly  side  of 
said  street  two  hundred  and  thirty-seven  feet  to  Lawrence  street;  thence  southerly  on  a curve 
about  ten  feet  to  a certain  street  or  way  opened  by  said  Taylor  and  Ijfiisha  Davis;  thence 
westerly  on  said  street  or  way  two  hundred  thirty-three  and  a half  feet  to  the  westerly 
corner  of  a lot  of  land  conveyed  by  said  Taylor  to  the  City  of  Lowell;  thence  easterly  at  an 
angle  of  86°  50'  on  the  line  of  said  lot  forty-seven  and  8-10  feet;  thence  easterly  at  an  angle 
of  169°  24'  to  Wamesit  street,  and  meeting  the  same  at  an  angle  of  78°  at  the  point  of 
beginning  fifty-five  feet  and  92-100.  To  have  and  to  hold  all  said  conveyed  premises,  with  the 
privileges  and  appurtenances  thereto  belonging,  to  the  said  Ephraim  B.  Patch,  his  heirs  and 
assigns,  to  their  use  and  behoof  forever.  And  I do  covenant  with  said  Patch,  and  his  heirs 
and  assigns,  that  I am  lawfully  seized  in  fee  of  the  premises;  that  they  are  free  of  all 
incumbrances;  that  I have  good  right  to  sell  and  convey  the  same  to  the  said  Patch,  to  hold  as 
aforesaid;  and  that  I will,  and  my  heirs,  executors  and  administrators  shall  warrant  and 
defend  the  same  to  the  said  Patch,  his  heirs  and  assigns  forever,  against  the  lawful  claims  and 
demands  of  all  persons. 

In  witness  whereof,  we,  the  said  Oliver  M.  Whipple  and  Sarah  K.  Whipple,  his  wife,  in 
token  of  her  release  of  all  claim  of  dower  in  said  premises,  and  who  for  the  aforesaid  consid- 
eration, and  in  consideration  of  one  dollar,  to  her  paid  by  said  Patch,  joins  herein  and 
releases  and  conveys  with  said  Whipple  to  said  Patch,  his  heirs  and  assigns,  all  right  and 
title  to,  and  of  homestead  exemption  in,  the  premises  herein  described,  as  aforesaid,  have 
hereto  set  our  hands  and  seals  this  twentieth  day  of  March,  in  the  year  eighteen  hundred  and 
sixty-three.  OLIVER  M.  WHIPPLE  (Seal). 

SARAH  K.  WHIPPLE  (Seal). 

Signed,  sealed  and  delivered  in  the  presence  of 

GEORGE  KINSMAN, 

MARGARET  A.  WHIPPLE. 


Testimony  of  Samuel  N.  Wood 


959 


Commonwealth  of  Massachusetts.  Middlesex,  ss.  March  20,  3863.  Then  personally- 
appeared  Oliver  M.  Whipple  and  acknowledged  the  above  instrument  by  him  subscribed,  to 
be  his  free  act  and  deed.  Before  me, 

DANIEL  S.  RICHARDSON,  Just.  Peace. 

(Two  twenty-dollar,  one  ten-dollar,  and  two  five-dollar  U.  S.  Rev.  Stamps.) 

Middlesex,  ss.  North  District.  Recorded  March  21,  1863. 

A.  B.  WRIG-HT,  Register. 

Middlesex,  ss.  North  District  Registry  of  Deeds,  Nov.  4,  1876.  I hereby  certify  the 
above  to  be  a true  copy  of  the  record  of  deed  recorded  in  Book  34,  page  140. 

Attest:  J.  P.  THOMPSON,  Regr. 


DEED.  PATCH  TO  BUTLER. 

Know  all  Men  by  these  Presents.,  That  I,  Ephraim  B.  Patch,  of  Lowell,  in  the  County  of 
Middlesex  and  Commonwealth  of  Massachusetts,  in  consideration  of  ($40,000)  forty  thousand 
dollars,  to  me  paid  by  Benj.  F.  Butler,  of  said  Lowell,  Esquire,  the  receipt  whereof  is  hereby 
acknowledged,  do  by  these  presents  remise,  release,  bargain,  sell  and  convey  unto  the  said 
Butler,  his  heirs  and  assigns,  all  the  land,  real  estate,  water-power,  water-privilege,  propei’ty- 
rights,  privileges  and  easements  which  were  conveyed  and  granted  to  me,  the  said  Patch,  by 
deeds  to  me  from  Oliver  M.  Whipple,  except  such  parts  thereof  as  I have  conveyed  and 
granted  away,  the  part  or  parts  thereof  remaining,  and  not  conveyed  or  granted  away,  and 
hereby  sold,  conveyed  and  granted,  being  as  follows,  and  all  in  said  Lowell : A certain 
piece  of  land,  situate  in  said  Lowell,  and  bounded  and  described  as  follows,  to  wit: 
Beginning  at  a stone  bound  on  the  easterly  side  of  Lawrence  street  at  the  southwesterly  cor- 
ner of  land  conveyed  by  said  Whipple  to  the  American  Bolt  Company ; and  thence  easterly 
by  land  of  said  Bolt  Company,  and  land  conveyed  by  said  Whipple  to  Joshua  Mather,  and 
land  conveyed  by  said  Whipple  and  myself  to  A.  H.  Chase ; thence  turning  southerly,  and  by 
the  edge  of  the  outer  wall  of  the  canal  along  said  Chase’s  land  to  the  southwesterly  corner 
thereof;  thence  to  the  northwesterly  corner  of  land  sold  and  conveyed  by  me  to  L.  W. 
Faulkner;  thence  southerly  along  said  Faulkner’s  land  to  the  southwesterly  corner  thereof; 
thence  at  nearly  a right  angle  easterly  by  said  Faulkner’s  land  to  Concord  river;  thence 
southerly  by  said  river  along  the  westerly  bank  thereof  to  the  northerly  side  of  the  bridge 
leading  over  said  river  to  the  Lowell  cemetery  at  Lawrence  street ; thence  by  and  along  said 
Lawrence  street  along  the  easterly  side  thereof  northerly  by  various  courses  to  land  conveyed 
by  me  to  one  Howarth ; thence  by  said  Howarth’s  land  north  (32|°)  thirty-two  degrees  and  a 
quarter  east  one  hundred  feet;  thence  northerly  (58^°)  fifty-eight  and  a quarter  degrees 
west  by  said  Howarth’s  land  sixty-four  and  55-100  (64  55-100)  feet  to  land  of  said  Faulkner; 
thence  north  ( 33£°)  thirty-three  and  a quarter  degrees  east  by  land  of  said  Faulkner  to  the 
southeasterly  corner  thereof;  thence  north  (29°)  twenty-nine  degrees  west-  one  hundred  and 
fifty  (150)  feet  along  the  easterly  line  of  said  Faulkner’s  land  to  Grove  street;  thence  by  the 
same  course  across  Grove  street  to  the  southeasterly  corner  of  said  Chase  land ; thence  by 
said  Chase  land  by  various  courses  to  Lawrence  street;  thence  northwesterly  by  said 
Lawrence  street  across  the  canal  to  the  point  of  beginning.  Grove  street  being  forever  to  be 
kept  open  thirty  (30)  feet  wide,  and  in  length  extending  from  Lawrence  street  across  the  canal 
to  said  Chase’s  land,  said  street,  including  the  bridge  over  the  canal,  to  be  maintained  by  the 
grantee  thereof,  his  heirs  and  assigns,  in  accordance  with  the  deed  of  O.  M.  Whipple  to  said 
Chase. 

Also  another  parcel  of  land  situate  in  said  Lowell,  on  the  easterly  side  of  Concord  river, 
bounded  and  described  as  follows,  to  wit : Beginning  at  the  northerly  side  of  the  county  road 
or  street  leading  from  Concord  river,  by  Lowell  cemetery,  at  a wall  at  the  westerly  side  of 
said  cemetery  land,  and  thence  northerly  by  said  wall  to  land  conveyed  by  O.  M.  Whipple  to 
Josiah  Gates;  thence  westerly  by  said  Gates’  land  twenty-eight  (28)  feet  to  a stake;  thence 
northerly,  by  the  easterly  side  of  a passageway,  by  stakes  at  different  angles,  described  in 
said  Gates’  deed  about  (922)  nine  hundred  and  twenty-two  feet  to  a stake  at  the  corner  of  said 
Gates’  land;  thence  easterly  by  land  of  said  Gates,  by  a fence  and  wall,  to  land  of  heirs  of 
Zadoc  Rogers;  thence  northerly  by  said  heirs’  land  on  a wall  to  a corner;  thence  westerly  by 
said  heirs’  land  to  a corner ; thence  northerly,  partly  on  a wall,  and  by  the  course  of  said  wall 
to  a bound  at  said  heirs’  land ; thence  westerly  by  said  heirs’  land  to  Concord  river,  at 
a point  nearly  opposite  the  mouth  of  River-meadow  Brook;  thence  southerly  by  Concord 
river  to  the  northerly  side  of  the  said  bridge  leading  over  said  river  to  Lowell  cemetery; 
thence  easterly  by  the  northerly  side  of  said  bridge  and  a county  road  or  street  to  the  point  of 
beginning.  Reserving  a right  of  way  over  forty  feet  in  width  along  the  westerly  line  of  said 
county  road  to  land  of  said  Gates  as  a way  or  street  for  the  use  of  the  abuttors  thereon,  and 
their  heirs  and  assigns  forever.  And  also  reserving  to  O.  M.  Whipple,  his  heirs  and  assigns, 
the  right  to  maintain  a pipe  across  said  premises,  as  now  used  for  conducting  water  from  a 
spring  to  premises  now  occupied  by  said  Whipple. 

Also  another  piece  of  land  situate  in  said  Lowell,  and  bounded  and  described^as  follows,  to 
wit:  Beginning  at  the  westerly  side  of  Lawrence  street,  at  the  southeasterly  corner  of  land 
conveyed  by  O.  M.  Whipple  to  Charles  Stott,  and  thence  northeasterly  by  said  Stott  land  by 
and  along  Lawrence  street,  across  River-meadow  brook  to  the  southeast  corner  of  land  con- 
veyed by  me  (the  said  Patch)  to  Artemus  Bedlow ; thence  southwesterly  by  said  Bedlow 
land*to  the  southwesterly  corner  thereof;  thence  turning  at  nearly  a right  angle  with  the  last 
line,  and  running  northeasterly  by  lands  of  said  Bedlow  and  of  Bernard  Riley  and  Churchill 
(200)  two  hundred  feet  to  Watson  street;  thence  southwesterly  by  said  Watson  street  to 
Whipple  street ; thence  across  Whipple  street  to  the  southeasterly  corner  of  land  conveyed 
by  me  to  one  Devine;  thence  at  an  angle  southwesterly  with  said  Whipple  street,  and  run- 
ning westerly  by  land  of  said  Devine,  Elisha  Hall,  land  of  myself,  and  land  sokl’by  me  and 
conveyed  to  W.  D.  Smith,  to  the  southwesterly  corner  of  said  Smith’s  land,  at  the  easterly 
side  of  Crosby  street;  thence  southerly  across  Crosby  street  to  the  southwesterly  corner  of 
land  conveyed  by  me  to  Samuel  N.  Wood;  thence  southwesterly  by  said  Wood  land  to  the 
northerly  side  of  Orange  street  and  across  Chambers  street  to  land  of  Lowell  Bleachery ; 


9(30 


Belvidere  Mills 


thence  southeasterly  by  the  line  of  land  of  said  Bleachery  to  a stone  bound  at  the  -westerly 
side  of  a contemplated  street  (designated  to  run  from  Moore  street  to  Lawrence  street)  said 
bound  being  at  the  southeasterly  corner  of  said  Bleachery’s  land ; thence  southeasterly,  in 
continuation  of  the  last  line,  across  said  new  street  to  a fence  at  land  of  O.  M.  Whipple; 
thence  northerly  by  said  Whipple’s  land  to  a corner  of  the  fence ; thence  easterly  by  said 
fence  to  Lawrence  street;  thence  northeasterly  by  said  Lawrence  street  to  point  of  begin- 
ning. Reserving  and  excepting  from  the  said  last-described  piece  of  land  a certain  piece  or 
parcel  of  land  conveyed  by  O.  M Whipple  to  Charles  Stott  by  deed,  dated 
Also  reserving  and  excepting  one  other  piece  or  parcel  of  land,  conveyed  by  said  Whipple  to 
Samuel  N.  Wood  by  deed,  dated  with  all  the  rights  and  privileges  conveyed  to 

the  said  Stott  and  Wood  in  said  deeds,  and  reserving  and  excepting  the  right  of  way  in  all 
the  streets  named  in  the  description  of  the  piece  of  land  last  above-described,  to  be  forever 
kept  open. 

Also,  another  parcel  of  land,  situate  in  said  Lowell,  and  bounded  and  described  as 
follows,  to  wit : Beginning  at  the  easterly  side  of  Chambers  street,  at  the  southwesterly 
corner  of  land  of  one  Leland,  and  thence  northeasterly  by  said  Leland’s  land  to  land  formerly 
of  one  Kidder;  thence  south  (285°)  twenty-eight  and  a half  degrees  east  by  said  Kidder 
land  about  (88)  eighty-eight  feet  to  a corner;  thence  north  (84°)  eight  and  three-fourths 
degrees  west  about  (118^)  one  hundred  and  eighteen  and  a half  feet  to  a corner  of  a wall  at 
land  formerly  of  said  Kidder  and  land  of  Joshua  Mather;  thence  south  (88|°)  eighty-eight 
and  a half  degrees  east  about  (350)  three  hundred  and  fifty  feet  by  land  now  or  formerly  of 
said  Mather  and  others  to  a corner  of  a wall  or  fence;  thence  north  (451°)  forty-five  and  a 
quarter  degrees  east  by  a wall  or  fence  about  (186)  one  hundred  and  eighty-six  feet  to  Crosby 
street;  thence  southerly  by  Crosby  street  about  (250)  two  hundred  and  fifty  feet  to  Kinsman 
street  (a  new  street  laid  down  on  a plan  on  record  in  the  Registry  of  Deeds  at  Lowell  aforesaid, 
the  date  of  which  record  is  the  (1st)  first  day  of  September,  in  the  year  (1864)  eighteen 
hundred  and  sixty-four;  thence  at  about  a right  angle  with  said  Crosby  street  westerly,  and 
by  the  northerly  line  of  Kinsman  street  about  (374)  three  hundred  and  seventy -four  feet  to 
Chambers  street ; thence  northerly  by  the  easterly  side  of  Chambers  street  to  the  point  of  be- 
ginning. Reserving  and  excepting  the  right  of  way  over  Prospect,  Pine  and  Kinsman  streets, 
to  be  laid  out  in  accordance  with  said  plan.  Said  parcel  of  land  being  lots  Nos.  (86)  eighty- 
six,  (87)  eighty-seven,  (88)  eighty-eight,  (89)  eighty-nine,  (90)  ninety,  (91)  ninety-one,  (92) 
ninety-two,  (93)  ninety-three,  (94)  ninety-four,  (95)  ninety-five,  (96)  ninety-six,  (97)  ninety- 
seven,  (98)  ninety-eight,  (99)  ninety-nine,  (100)  one  hundred,  (101)  one  hundred  and  one, 
(102)  one  hundred  and  two,  (103)  one  hundred  and  three,  (104)  one  hundred  and  four,  (105) 
one  hundred  and  five,  (106)  one  hundred  and  six,  (107)  one  hundred  and  seven,  (108)  one 
hundred  and  eight,  (109)  one  hundred  and  nine,  (110)  and  hundred  and  ten,  and  Nos.  176, 
177,  178,  179,  180,  181,  182,  183,  184,  185,  186,  187,  188,  189,  190,  191,  192,  193,  194,  195,  196,  197 
on  said  plan  recorded  as  aforesaid. 

Also  another  parcel  of  land  situate  in  said  Lowell,  and  bounded  and  described  as  follows, 
to  wit : Beginning  at  the  southwest  corner  of  the  premises  at  the  corner  of  Swift  and  Whip- 
ple streets,  and  thence  northerly  by  Whipple  street  about  two  hundred  and  eighty-four  feet 
to  a stone  bound  at  land  conveyed  to  James  Meadowcroft;  thence  at  a right  angle  easterly  by 
said  Meadowcroft  land  about  two  hundred  and  sixty-one  and  a quarter  feet  to  a stone  bound 
at  land  of  heirs  to  P.  O.  Richmond;  thence  by  said  heirs’  land  about  ninety  feet  to  a stone 
bound;  thence  southerly  about  one  hundred  and  seventy-seven  feet  to  a wall;  thence  south, 
eighty-six  degrees  west,  by  land  conveyed  by  me  to  one  McLaughlin,  about  eighty-five  feet 
to  Chase  street ; thence  southerly  by  Chase  street  about  one  hundred  and  seven  feet  to  Swift 
street ; thence  westerly  and  across  Chase  street  about  one  hundred  and  fifty  feet  to  point  of 
beginning.  Reserving  and  excepting  the  right  of  way  over  Chase  street  to  be  laid  out  in 
accordance  with  said  plan  said  parcel  of  land  being  lots  151  to  162  inclusive,  on  said  plan, 
excepting  lot  157  on  said  plan.  Also  another  parcel  of  land  situate  in  said  Lowell  on  the 
westerly  side  of  Whipple  street,  and  bounded  and  described  as  follows,  to  wit : Beginning  at 
a stone  bound  at  land  of  W.  H.  Parker,  and  thence  northwesterly  by  said  Parker  land  about 
three  hundred  and  fifty  feet  to  land  conveyed  by  O.  M.  Whipple  to  one  Miller;  thence 
easterly  by  said  Miller  land,  land  of  owner  unknown,  and  land  of  Cheney  and  Hews,  and  of 
P.  Smith  about  one  hundred  and  ninety  feet  to  Whipple  street;  thence  southerly  by  Whipple 
street  about  four  hundred  and  eight  feet  to  a stake  at  the  corner  of  Whipple  and  Kinsman 
streets;  thence  westerly  by  northerly  side  of  Kinsman  street  about  twenty-three  and  eight- 
tenths  feet  to  point  of  beginning,  being  lots  Nos.  136  to  145  inclusive,  on  said  plan. 

Also  another  parcel  of  land  situate  in  said  Lowell,  on  the  southerly  side  of  Kinsman 
street,  and  bounded  and  described  as  follows,  to  wit : Beginning  at  a stone  bound  at  the 
northeasterly  corner  of  land  conveyed  by  me  to  one  Gray,  and  thence  westerly  by  a new 
street  laid  down  on  said  plan,  called  Kinsman  street,  about  two  hundred  and  fifty-four  feet 
to  land  conveyed  by  O.  M.  Whipple  to  one  Keating;  thence  southeasterly  by  said  Keating 
land  about  nine  feet  to  a stake ; thence  westerly  about  thirty  feet  by  said  Keating  land  to  a 
stake ; thence  northwesterly  about  two  feet  to  a line  of  the  street ; thence  southwesterly  by 
said  Kinsman  street  about  eighty  feet  to  Crosby  street;  thence  southeasterly  by  Crosby 
street  about  sixty-eight  feet  to  a passageway  twelve  feet  wide,  forever  to  be  kept  open ; 
thence  easterly  by  said  passageway  about  three  hundred  and  seventy  feet  to  a stone  bpund 
at  the  southwest  corner  of  said  Gray  land ; thence  by  said  Gray  land  northerly  about  ninety 
feet  to  the  point  of  beginning,  being  lots  Nos.  Ill  to  125  inclusive,  on  said  plan.  Also  the 
following  mentioned  lots  of  land  as  laid  down  on  said  plan,  and  in  said  Lowell,  to  wit:  Lots 
numbered  fifty-seven  (57),  fifty-eight  (58),  fifty-nine  (59)  on  Newhall  and  Chambers  streets. 
Lots  numbered  seventy-two  (72),  seventy-three  (73),  seventy-four  (74),  seventy-five  (75), 
seventy-six  (76),  and  seventy-seven  (77)  on  Chambers  street,  between  Kinsman  and  Newhall 
streets;  Lots  numbered  forty-two  (42),  forty-three  (43),  forty-four  (44)  on  the  southerly  side 
of  Newhall  street.  Also  lots  numbered  one  hundred  and  seventy-one  (171),  one  hundred  and 
seventy-two  (172),  one  hundred  and  seventy-three  (173)  on  the  southerly -side  of  Swift  street. 

Also,  all  personal  property  belonging  to  or  owned  by  said  Patch,  or  upon  or  about  the 
afore-mentioned  or  afore-described  premises,  used,  had.  or  owned  in  connection  therewith, 
except  lumber  other  than  that  intended  for  the  repairs  of  wheel,  and  the  wood  cut  and  lying 
on  the  premises ; also  excepting  the  machinery  and  material  used  in  the  flock  manufacture 
other  than  the  main  shafting  and  pulleys  thereon  in  the  brick  mill.  This  conveyance  is  made 
subject  to  each  and  every  street  and  passage-way  laid  down  on  the  registered  plan  before- 


Testimony  of  Samuel  N.  Wood.  961 


named,  and  each  and  every  street  and  passage-way  herein  named  not  on  said  plan,  to  he  forever 
left  open  for  the  free  travel  of  the  abuttors  thereon,  and  their  heirs  and  assigns;  and  also 
subject  to  any  and  all  rights  of  way  heretofore  granted  by  said  O.  M.  Whipple  or  by  me,  the 
said  Patch ; also  subject  to  all  rights  of  grantees,  their  heirs  and  assigns,  claiming  by,  through, 
or  under  said  O.  M.  Whipple,  and  named  in  the  deed  from  said  Whipple  to  me  of  the  property 
herein  described,  and  all  rights  of  grantees,  their  heirs  and  assigns,  claiming  by,  through,  or 
under  me,  the  said  Patch,  but  not  including  in  such  rights  of  said  grantees  of  said  Whipple, 
or  of  said  grantees  of  myself,  the  fee  of  any  of  the  land  or  real  estate  hereinbefore  particu- 
larly described  and  conveyed,  and  other  than  what  is  hereinbefore  excepted  or  reserved ; also 
subject  to  all  rights  of  the  American  Bolt  Company,  Kimball  & Hooke,  George  Naylor  and 
C.  H.  Crowther,  tenants  under  written  leases,  during  the  terms  of  the  said  leases  respectively. 
And  the  grantor,  the  said  Patch,  excepts  and  reserves  all  buildings,  structures  and  machinery  * 
not  the  property  of  him,  the  said  Patch,  and  the  right  of  the  owners  thereof,  to  use  the  same 
during  the  continuance  of  the  terms  of  their  leases  respectively,  and  to  enter  and  remove  the 
same  as  provided  therein- 

And  I,  the  said  Patch,  for  the  consideration  before  named,  remise,  release,  bargain,  sell, 
and  convey  unto  the  said  Butler,  the  grantee,  his  heirs  and  assigns,  all  my,  the  said  Patch’s, 
unsold  water  power,  water  rights  and  privileges  in  or  on  Concord  river,  and  as  led,  conducted 
and  taken  from  or  out  of  Concord  river,  with  all  my  rights  to  maintain  the  present  dam 
across  said  river  at  the  height  of  the  present  dam,  with  all  my  rights  to  use  the  eight-inch 
flash-boards  thereon,  with  all  my  rights  of  flowage,  wherever  situated  and  however  ob- 
tained, and  all  my  right  to  discharge  water  into  River-meadow  brook,  and  also  all  my  right  to 
collect,  for  the  purpose  of  repairing  said  dam  and  canal,  all  money  hereafter,  coming  or 
becoming  due  from  the  former  grantees  of  said  Whipple,  their  heirs  and  assigns,  and  the 
grantees  of  myself,  the  said  Patch,  their  heirs  and  assigns,  of  water  power  and  rights  for 
the  maintenance  of  said  permanent  dam  and  banks  of  canal  on  the  premises  hereby  con- 
veyed, and  also  the  right  to  restrict  said  former  grantees  of  said  Whipple  and  myself,  their 
heirs  and  assigns  respectively,  to  the  quantity  of  water  purchased  by  said  grantees  respec- 
tively of  said  Whipple  and  of  myself,  the  said  Patch.  And  this  deed  is  made  subject  to 
former  grants  of  water  power,  water  rights  and  rights  of  way  to  Smith  & Meadowcroft  and 
American  Bolt  Company,  Joshua  Mather,  Chai'les  Stott,  Lowell  Bleachery,  Samuel  N.  Wood, 
A.  H.  Chase,  Hosford  & Chase,  and  L.  W.  Faulkner,  and  subject  to  the  provisions  in  the 
deed  of  said  Whipple  to  me;  and  also  subject  to  the  liability,  duty,  and  obligation  hereby 
created  and  assented  to  and  assumed  by  the  grantee  in  and  of  this  deed,  that  the  said  grantee, 
his  heirs  and  assigns,  shall  forever  maintain  said  permanent  dam,  and,  when,  needed  use 
eight-inch  flash-boards  thereon,  as  the  said  grantee  and  his  heirs  and  assigns  have  a right  to 
do,  and  forever  maintain  and  keep  in  repair,  the  banks  of  a canal  to  furnish  water  to  the  said 
former  grantees  of  said  Whipple  and  said  Patch,  their  heirs  and  assigns,  and  shall  so  enlarge 
said  canal  when  needed,  that  it  shall  be  of  sufficient  capacity  to  carry  and  discharge  not  less 
than  two  hundred  and  eighty-eight  cubic  feet  of  water  per  second  of  eleven  and  one-quarter 
hours  per  day  of  six  days  in  each  week,  and  shall  also  keep,  perform  and  fulfil  all  the  obliga- 
tions of  supplying  water,  and  all  other  obligations  and  covenants  to  be  kept,  performed  and 
fulfilled  by  the  said  Patch  and  said  Whipple  and  their  heirs  in  any  and  all  grants  and  deeds 
hitherto  made  by  said  Patch  and  by  the  said  Whipple,  of  land  and  water  power  and 
priviledges  in  connection  with  said  canal,  to  any  person  or  persons,  or  corporation  or  cor- 
porations; and,  in  case  of  failure  of  the  grantee,  his  heirs  or  assigns,  to  perform  and  fulfil 
said  liability,  duty,  and  obligation  as  aforesaid,  when  and  so  far  as  rightfully  required  by 
said  grantees  of  said  Whipple  and  of  myself,  the  said  Patch,  their  heirs  and  assigns,  or  any 
of  them,  after  reasonable  notice  and  request  by  the  said  Patch,  his  heirs  or  assigns,  so  to  do, 
then  said  Patch  or  his  heirs,  executors  or  administrators,  may  and  shall  have  the  right  each 
and  every  said  time  to  enter  into  and  upon  the  said  premises,  and  possess  and  hold  and 
make  good  the  same  till  performance  shall  be  made  and  done  as  aforesaid,  and  all  damages 
to  said  Whipple  or  his  heirs,  or  to  said  Patch  or  his  heirs,  by  reason  of  such  failure  shall  be 
paid. 

The  said  Patch,  the  grantor,  for  the  consideration  aforesaid,  hereby  remises,  releases, 
bargains,  sells,  and  conveys,  and  intending  to  remise,  release,  bargain,  sell,  and  convey  to 
said  Butler,  the  grantee,  all,  each,  and  every  parcel  of  or  tract  of  land,  water  right,  ease- 
ment, appurtenance,  property,  right  of  property,  and  interest  whatever  obtained,  received, 
accruing  or  resulting  to  said  Patch,  by,  through,  or  under  any  deed  from  said  Whipple  to 
said  Patch,  and  the  covenants,  agreements,  warranties,  and  guarantees  therein  and  thereof 
(excepting  such  lands,  right  of  water,  and  easements  and  property  hereinbefore  described 
as  have  heretofore  been  duly  and  legally  conveyed  and  granted  by  said  Patch,  by  his  deeds 
and  leases  heretofore  made  and  recorded,  also  excepting  such  personal  property  as  has  been 
heretofore  sold  and  removed,  and  except  lots  Nos.  40  and  41,  sold  to  one  Hall,  and  lots  Nos. 
60  and  61  sold  Mrs.  Cain,  and  lots  Nos.  131  and  132  sold  to  one  Stanton,  which  deeds  are 
held  in  my  hand  and  not  recorded,  and  also  the  lots  conveyed  by  said  Patch  to  one  Mrs. 
Keating  and  Patrick  Donnelly,  whether  said  lands,  easements,  appurtenances  (property, 
rights  of  property,  interest  and  claims)  are  or  have  been  heretofore  set  forth,  described, 
hounded,  or  declared  in  this  deed,  or  however  the  same  may  be  otherwise  bounded  and 
described. 

To  have  and  to  hold  the  same,  and  every  of  the  above-named  premises  to  said  Butler, 
grantee,  and  his  heirs  and  assigns  forever.  And  I,  the  said  Patch,  do  avouch  myself  the  true 
and  lawful  owner  of  the  aforegranted  premises ; that  they  are  free  of  all  encumbrances  or 
claims  made  or  suffered  by  said  Patch  not  herein  set  forth;  and  that  I will,  and  my  heirs, 
shall  warrant  and  defend  the  same,  and  every  of  them,  to  said  Butler,  grantee,  his  heirs  and 
assigns,  forever  against  the  lawful  claims  of  all  persons  claiming  by,  through,  or  under  me, 
the  grantor,  except  a mortgage  to  Oliver  M.  Whipple,  which  said  Butler  assumes  to  pay  and 
hold  the  grantor  personally  discharged  thereof 

In  witness  whereof,  I,  the  said  Ephraim  B.  Patch,  being  now  sole  and  unmarried,  have 
hereunto  set  my  hand  and  seal  this  fifteenth  day  of  February,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixty-five. 

E.  B.  PATCH  (Seal). 

Signed,  sealed  and  delivered  in  presence  of  us.  (Sheets  1,  2,  3,  4,  5,  6,  7,  8,  9, 10,  11, 12,  13, 
14,  15,  16,  17,  18  and  19). 


GEORGE  F.  RICHARDSON. 


962 


Bel  vide  re  Mills 


Commonwealth  of  Massachusetts.  Middlesex,  ss.  February  15th,  1865.  Then  the  afore- 
named  Ephraim  B.  Patch  personally  appeared  and  acknowledged  the  foregoing  instrument  to 
he  his  free  act  and  deed.  Before  me, 

GEORGE  F.  RICHARDSON,  Justice  of  the  Peace. 

(Forty  dollars,  U.  S.  Rev.  Stamps,  cancelled). 

Middlesex,  ss.  North  District.  Recorded  Feb.  15,  1865. 

A.  B.  WRIGHT,  Register. 

Middlesex,  ss.  North  District.  I hereby  certify  the  within  to  be  a true  copy  of  the  record 
of  deed  recorded  in  Book  41,  page  56,  M.  N.  District  Registry,  Nov.  4, 1876. 

Attest:  J.  P.  THOMPSON,  Regr. 


BENJAMIN  F.  BUTLER  TO  WAMESIT  POWER  COMPANY. 

Know  all  men  by  these  Presents,  That  I,  Benjamin  F.  Butler,  of  Lowell,  in  the  County 
of  Middlesex,  and  Commonwealth  of  Massachusetts,  Esquire,  in  consideration  of  seventy 
thousand  dollars,  to  me  paid  by  the  Wamesit  Power  Company,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  give,  grant  and  convey,  remise,  release,  and  forever  quitclaim  unto 
the  said  Wamesit  Power  Company,  all  the  several  tracts  and  parcels  of  land,  water-rights, 
easements,  appurtenances,  property,  rights  of  property  and  interests  which  I purchased  of 
Ephraim  B.  Patch,  and  which  he  conveyed  to  me  by  his  deed,  dated  February  15th,  1865,  and 
recorded  in  North  Middlesex  Records,  Book  41,  pages  from  56  to  67  inclusive,  to  which 
deed,  reference  is  to  be  had  for  a more  particular  description. 

Excepting  a certain  piece  or  parcel  of  land  conveyed  by  me  to  John  Kirwin  by  my  deed, 
dated  October  27th,  1865,  and  also  another  certain  piece  or  parcel  of  land  conveyed  by  me  to 
L.  W.  Faulkner,  by  my  deed  dated  November  15th,  1865. 

To  have  and  to  hold  the  above-released  premises,  with  all  the  privileges  and  appurtenan- 
ces to  the  same  belonging,  to  the  said  Wamesit  Power  Company  and  their  successors  to  their 
use  and  behoof  forever. 

And  I,  the  said  Benjamin  F.  Butler,  for  myself  and  my  heirs,  executors  and  administra- 
tors do  covenant  with  the  said  Wamesit  Power  Company  and  their  successors,  that  the 
premises  are  free  from  all  incumbrances,  made  or  suffered  by  me. 

And  that  I will,  and  my  heirs,  executors  and  administrators  shall  warrant  and  defend  the 
same  to  the  said  Wamesit  Power  Company,  and  their  successors  forever,  against  the  lawful 
claims  and  demands  of  all  persons,  claiming  by,  through,  or  under  me,  but  against  none 
other. 

In  witness  whereof,  we  the  said  Benjamin  F.  Butler  and  Sarah  Butler,  wife  of  said 
Benjamin,  in  token  of  her  release  of  all  right  and  title  of  or  to  both  dower  and  homestead  in 
the  granted  premises,  have  hereunto  set  our  hands  and  seals  this  tenth  day  of  February,  in 
the  year  of  our  Lord  eighteen  hundred  and  sixty-six. 

BENJ.  F.  BUTLER.  [Seal.] 
SARAH  BUTLER.  [Seal.] 

Signed,  sealed  and  delivered  in  presence  of 

HENRY  H.  BENNETT. 

ZACH  B.  BROOKE. 


District  of  Columbia, 

City  and  County  of  Washington. 

Be  it  remembered  that  on  this  tenth  (10th)  day  of  February,  in  the  year  one  thousand 
eight  hundred  and  sixty-six,  before  me  the  undersigned  a commissioner,  resident  in  the  City 
of  Washington,  in  said  district,  duly  commissioned  and  qualified  by  the  executive  authority, 
and  under  the  laws  of  the  State  of  Massachusetts,  to  take  the  acknowledgments  of  deeds, 
etc.,  to  be  used  and  recorded  therein  personally  appeared  Benjamin  F.  Butler  and  Sarah 
Butler  his  wife,  to  me  known  to  be  the  individuals  named  in,  and  who  executed  the  foregoing 
conveyance,  and  severally  acknowledged  the  same  to  be  their  free  act  and  deed  before  me. 

In  witness  whereof,  I have  hereunto  set  my  hand  and  affixed  my  official  seal  the  day  and 
year  aforesaid. 

ZACH  B.  BROOKE, 

Commissioner  for  Massachusetts  in  the  District  of  Columbia. 


COMMONWEALTH  OF  MASSACHUSETTS. 


Loweue,  Feb.  28,  1866. 

Recorded  in  the  Registry  of  Deeds  for  the  Northern  Distinct  of  Middlesex,  in  Book  47, 
page  128. 

A.  B.  WRIGHT,  Reg. 


Closing  Argument  for  Respondents. 


963 


CLOSING  ARGUMENT  FOR  THE  RESPONDENTS, 
BY  LINUS  M.  CHILD,  Esq. 

Mr.  Chairman  and  Gentlemen  : — In  the  remarks  that 
I shall  make  to  you  on  this  matter,  I shall  not  attempt  to 
go  into  any  minute  examination  of  the  evidence,  or  to  make 
any  extended  argument  on  the  general  principles  involved. 
The  matter  has  been  already  so  many  times  and  so  fully 
argued,  that  it  would  be  presumption  in  me  to  attempt  to 
add  anything  to  what  has  been  said  on  the  principles  of 
law  applying  to  all  the  cases  which  have  been  before  the 
commissioners ; but  I must  ask  your  Honors,  in  the  con- 
sideration of  this  matter,  to  remember  what  has  been  stated 
perhaps  before,  and  that  is  what  the  City  of  Boston  is 
authorized  to  do,  and  what  the  City  of  Boston  has  done. 

In  the  first  place,  the  City  of  Boston  has  been  authorized, 
by  act  of  the  legislature,  to  take  the  Sudbury  river  for  the 
purpose  of  supplying  pure  water  to  the  City  of  Boston ; and 
under  that  act,  the  city  has  seized,  as  required  by  the  act, 
by  filing  in  the  Registry  of  Deeds  for  Middlesex  County  a 
description  of  what  they  have  taken  ; and  by  that  paper  filing 
it  appears  that  the  City  of  Boston  have  the  whole  of  Sudbury 
river.  Then,  the  city  being  authorized  to  take  the  Sudbury 
river  for  the  purpose  of  supplying  the  city  with  water,  and 
having  taken  it,  as  appears  by  the  paper  filed,  they  have  the 
whole  of  Sudbury  river.  That  we  admit.  There  are,  how- 
ever, certain  restrictions  in  regard  to  the  taking  of  the  water 
of  Sudbury  river  which  must  be  considered  by  this  com- 
mission, and  which  must  be  allowed  for,  in  the  estimation  of 
the  damages.  They  are  the  restrictions  imposed  by  nature 
and  the  character  of  the  property  taken.  We  claim,  there- 
fore, that,  while  technically  the  whole  river  has  been  taken, 
still  the  fact  that  no  river  can  by  an}^  possibility  be  taken 
away  entirely  must  be  considered  ; that  as  there  are  certain 
seasons  of  the  year  when  the  river  must  overflow  any  dam 
that  can  be  made,  it  must  run  in  its  accustomed  channel, 
no  matter  what  obstructions  are  placed  therein,  no  matter 
what  act  is  done  by  the  city  to  take  it  away.  Therefore  we 
claim  that  the  Sudbury  river  does  furnish  to  the  Concord 
river  a certain  proportion  of  the  water,  at  certain  times  of 
the  year,  notwithstanding  any  diversion  by  the  City  of  Bos- 
ton. 

Again  : We  claim  that,  in  the  consideration  of  this  case,  the 


964 


Closing  Argument  for  Respondents. 


actual  condition  of  things  is  to  be  considered.  You  have 
seen  and  have  had  evidence  in  regard  to  the  manner  in  which 
it  is  proposed  to  take  this  river.  By  that  testimony  it  ap- 
pears that  they  propose  to  take  it  by  certain  dams  which  you 
have  seen  and  have  heard  about,  and  with  those  dams  a certain 
amount  of  the  water  of  the  Sudbury  river  must  and  does  and 
will  flow  into  its  accustomed  channel ; therefore,  when  it  is 
said  that  the  whole  of  the  Sudbury  river  has  been  taken  by  the 
City  of  Boston,  it  must  be  understood  with  those  restrictions 
that  I have  indicated.  I do  not  know  that  this  theory  has 
been  opposed  by  any  of  the  petitioners  here,  and  I think  I 
make  a statement  which  will  not  be  denied  when  I say  that 
one-half  of  the  time  in  each  year  the  taking  of  the  water  of 
Sudbury  river  by  the  City  of  Boston  will  do  no  damage  to 
the  riparian  proprietors  upon  the  Sudbury  or  upon  the  Con- 
cord river.  And,  as  an  illustration  of  this,  your  Honors  will 
remember  that  Mr.  Fteley  testified,  and  the  profiles  which 
he  put  in  show,  that  there  are  times  when  the  Sudbury  river 
flows  3,200  cubic  feet  per  second,  and  at  such  times,  as  he 
testified,  and  as  it  was  fiot  necessary  for  him  to  testify,  for 
this  commission  would  know  it  without,  it  would  be  simply 
impossible  for  the  City  of  Boston,  under  any  conceivable 
circumstances,  to  take  all  of  that  water  into  a conduit  for  the 
purpose  of  the  act;  that  is,  to  supply  the  City  of  Boston 
with  pure  water.  Therefore,  we  claim  as  the  first  proposi- 
tion, that  we  have  not  taken  the  Sudbury  river  entirely  and 
utterly,  but  that  we  have  only  taken  a certain  portion  of  it ; 
that  the  outside  claim  which  can  be  made  by  the  petitioners 
is,  that  we  have  taken  it  for  six  months  in  the  year,  and  even 
then  it  is  not  contended  that  it  is  continuously  taken  for  six 
months  in  the  year.  Your  Honors  saw  what  a very  large 
flow  of  water  there  was  in  the  Sudbury  on  the  31st  of  July ; 
so  large  that  it  could  not  be  kept  or  controlled  by  any  dam 
that  has  been  built  or  could  be  built  by  the  City  of  Bos- 
ton. The  outside  claim,  therefore,  must  be  for  six  months 
in  the  year,  subject  to  certain  contingencies  and  variations, 
which  must  be  considered  and  understood  by  the  commis- 
sioners. 

Then  this  water  for  the  City  of  Boston  (and  I think  that 
is  a fair  consideration)  is  to  be  taken  by  certain  conduits,  in 
a certain  manner,  and  the  mode  of  taking  must  be  confined, 
and  it  must  be  presumed  to  be  confined,  to  a reasonable  ex- 
tent, and  for  the  purposes  of  this  act ; and  therefore  we  can 
claim  that  there  is  a large  amount  of  waiter  in  the  Sudbury 
river,  sufficient  for  all  these  petitioners  during  six  months  in 
the  year,  and  a large  amount  during  the  other  six  months  of 


Closing  Argument  for  Respondents. 


965 


the  year,  that  runs  in  its  accustomed  channel,  and  for  the  di- 
version of  which  we  are  not,  therefore,  called  upon  to  pay. 

The  next  proposition  which  I would  present  to  the  com- 
mission is,  that*,  under  the  act,  the  City  of  Boston  must  pay 
for  all  damage  that  it  does  to  any  water-rights  of  any  ripa- 
rian proprietors,  in  any  way,  by  the  taking  of  Sudbury  river. 
But  this  damage  must  be  confined  to  the  actual  possible 
diversion.  Not  that  I mean  to  say  that  it  is  to  be  confined 
to  the  amount  of  water  that  is  being  diverted  to-day,  but  that 
it  must  be  confined  to  the  actual  amount  that  it  is  possible 
to  divert  with  the  dams  as  built  or  being  built  upon  the  Sud- 
bury river,  and  it  must  be  for  the  diversion  of  the  river  from 
the  parties  petitioners  under  the  rights  and  titles  as  proved. 
Now,  as  I understand  the  law,  there  can  be  no  claim  made 
for  damages  for  the  diversion  of  water,  except  by  riparian 
proprietors,  in  the  first  instance ; that  the  law  provides  that 
every  riparian  proprietor  upon  the  banks  of  a river  shall 
have  all  the  water  that  is  accustomed  to  flow  in  that  river 
flow  by  his  banks  ; that  the  riparian  proprietor  has  a right  to 
take  the  water  out  upon  his  own  land  and  use  it  in  any  form 
that  he  sees  fit,  provided,  if  used  for  manufacturing  pur- 
poses, that  he  returns  it  again  into  the  stream  before  the 
stream  leaves  his  land  ; and  that,  therefore,  in  the  Wamesit 
dam  cases,  it  is  incumbent  upon  the  petitioners  to  show  first, 
that  they  have  riparian  rights,  or,  second,  that  they  claim  in 
some  way  by  legal  grant  from  some  person  who  has  riparian 
rights.  I would  ask  your  attention,  therefore,  in  the  first 
instance,  to  the  title  as  put  in  and  claimed  by  these  peti- 
tioners. There  is  no  one  of  them,  I claim,  that  has  any 
right  to  the  water  as  a riparian  proprietor.  To  be  sure, 
there  are  two  petitioners  who  border  upon  Concord  river, 
but  they  border  upon  Concord  river  only  upon  one  side. 
They  have  not  taken  out  the  water  upon  their  land,  nor  have 
they  delivered  it  again  into  the  river  upon  their  land ; there- 
fore, for  the  purposes  of  this  case,  every  one  of  the  peti- 
tioners upon  the  Wamesit  dam  are  not  here  as  riparian  pro- 
prietors. If  they  cannot  claim  a right  to  the  water  under  a 
riparian  proprietor,  we  claim  that  they  have  no  right  to  the 
water  at  all.  I suppose  that  the  only  way  in  which  they 
claim  to  have  the  water  delivered  to  them,  and  therefore  to 
have  damages  against  us  for  diversion,  is  under  the  deed  of 
Oliver  M.  Whipple,  or  Ephraim  B.  Patch,  his  grantee  ; and 
I claim  one  thing  further,  and  that  is,  that,  not  claiming  here 
as  riparian  proprietors,  they  can  claim  only  under  that  deed, 
and  that  when  the  City  of  Boston  takes  this  water  by  act  of 
the  legislature  for  a public  purpose,  and  for  a public  benefit, 
they  are  restricted  directly  and  exactly  to  the  terms  of  their 


966  Closing  Argument  for  Respondents . 

grant,  and  cannot  ask  to  have  it  enlarged  by  implication  in 
any  way.  I ask  the  attention  of  the  commission  to  one  of 
the  deeds,  and  I believe  the  form  is  the  same  in  every  deed. 
If  it  is  not,  it  will  be  pointed  out  undoubtedly  by  those  who 
come  after  me  as  regards  their  particular  title.  Anyway,  I 
shall  not  read  any  others.  The  one  to  which  I call  your 
attention,  is  the  deed  given  by  Oliver  M.  Whipple  to  Joshua 
Mather,  under  which  the  Sterling  mills  claim.  The  deed 
will  be  found  on  page  546  of  the  record.  In  the  first  place, 
I will  call  your  attention,  in  confirmation  of  what  I said 
before,  to  this  clause  in  the  deed  : " Do  hereby,  give,  grant, 
bargain,  sell  and  convey  unto  the  said  Joshua  Mather,  a 
certain  parcel  of  land  situated  in  said  Lowell,  near  the  Con- 
cord river,”  — showing  that  they  are  not  on  the  Concord 
river;  and  then,  after  describing  the  land,  it  says,  at  the 
bottom  of  the  page:  "Also,  the  right,  privilege  and  ease- 
ment to  take  water  by  means  of  the  canal  of  the  grantor 
lying  southerly  of  the  premises,  and  leading  out  of  the  Con- 
cord river,  and  by  means  of  head  raceways  to  enter  the  said 
canal  at  any  point  opposite  the  premises,  and  to  conduct  the 
water  to  the  premises  to  be  used  thereon,  the  same  to  be 
done  in  such  a manner  as  in  no  wise  to  injure  or  weaken  the 
banks  of  said  canal,  or  interrupt  the  flow  of  water  therein.” 
By  this  clause  which  I have  read  they  are  granted  the  right 
to  take  water  by  means  of  the  canal  leading  into  the  Concord 
river,  and  to  enter  the  canal  opposite  the  premises.  The 
next  clause  is  : "Also,  the  right  for  said  water  to  enter  said 
canal  from  the  said  Concord  river  to  the  extent  hereinafter 
specified,  and  the  right  forever  hereafter  to  have  said  canal 
and  the  banks  thereof,  and  the  permanent  dam  owned  by  the 
grantor  across  Concord  river,  continued  for  the  purpose  of 
affording  a water-power,  and  to  the  extent  and  with  the  ex- 
ceptions and  reservations  hereinafter  contained  and  set  forth, 
the  quantity  of  water  which  may  be  drawn  from  the  canal  by 
the  grantee,  his  heirs  and  assigns,  is  strictly  limited  to,  and 
shall  not  exceed  thirty-six  cubic  feet  per  second  for  eleven 
and  one-quarter  hours  per  day  of  six  days  of  the  week  ; and 
if  at  any  time  the  quantity  of  water  in  the  canal  shall  not 
equal  two  hundred  and  eighty-eight  cubic  feet  per  second 
during  the  time  aforesaid,  then  the  grantee,  his  heirs  and 
assigns,  shall  during  such  time  be  restricted  to  one-eighth  of 
the  quantity  of  the  water  in  the  canal ; meaning  that  the 
quantity  of  water  which  may  be  drawn  from  the  canal  by  the 
grantee,  his  heirs  or  assigns,  shall  never  at  any  time  exceed 
thirty-six  cubic  feet  per  second  for  the  above-specified  time, 
however  great  may  be  the  supply  of  water  from  the  said 
canal,  and  that  the  quantity  of  water  which  may  be  taken  by 


Closing  Argument  for  Respondents. 


967 


the  grantee,  his  heirs  and  assigns,  shall  be  restricted  to  such 
an  amount  less  than  thirty-six  cubic  feet  per  second  during 
the  above-specified  time,  as  shall  be  equal  to  one-eighth  of 
the  supply  afforded  from  the  canal,  whenever  the  water  in 
the  canal  shall  be  less  than  two  hundred  and  eighty-eight 
cubic  feet  per  second  for  eleven  and  one-quarter  hours  per 
day  for  six  days  of  the  week.” 

Now,  in  the  first  place,  I call  your  attention  to  this, — that, 
if  there  is  any  riparian  proprietor,  it  is  Oliver  M.  Whipple ; 
that  he  has  made  his  canal,  and  that  he  has  the  right  to  run 
his  canal  as  he  has,  and  that  he  has  granted  to  this  petitioner, 
the  Sterling  mills,  a right  to  not  more  than  thirty-six  feet; 
but  it  is  restricted  by  this  condition, — that,  if  there  is  not  a 
certain  amount  of  water  in  the  canal,  then  he  is  not  to  have 
as  much. 

Mr.  Shattuck.  We  do  not  claim  anything  beyond  our 
deed,  as  I understand  it. 

Mr.  Child.  I did  not  suppose  you  would ; but  what  I 
claim  is,  that,  under  the  deed,  they  have  not  got  any  right 
to  have  thirty-six  cubic  feet ; that,  if  the  City  of  Boston 
takes  away  half  of  the  water  in  the  Concord  river,  under 
that  careful  restriction,  as  the  water  was  conveyed  by  Oliver 
M.  Whipple,  these  grantees  cannot  say  one  word ; because 
he  never  agreed  that  they  should  have  all  the  water  there  is 
in  the  river,  except  as  set  forth  in  the  deed.  When  the 
water  in  the  canal  is  less  than  two  hundred  and  eighty-eight 
feet,  they  are  to  have  only  their  aliquot  part.  Now,  our 
claim  is,  no  matter  what  the  City  of  Boston  have  taken 
away,  they  havre  taken  it  away  from  the  riparian  proprietor ; 
that  that  riparian  proprietor  is  Oliver  M.  Whipple  and  his 
grantees ; and  that  these  parties  cannot  claim  because  they 
are  not  the  grantees  of  any  exact  right  in  this  water,  but 
simply  a certain  portion  of  the  water  that  may  be  in  the 
canal. 

Mr.  D.  S.  Richardson.  Do  you  mean  to  say  that  the 
riparian  proprietor,  Mr.  Whipple,  had  a,  right  to  sell  the 
water,  before  it  came  down  this  canal,  to  everybody  else, 
although  he  had  granted  this  right  to  these  persons  ? 

Mr.  Child.  I mean  to  say,  that  Oliver  M.  Whipple  did 
not  sell  any  of  these  grantees  any  particular  amount  of 
water ; that  he  sold  them  an  aliquot  part  of  any  water  which 
might  be  in  the  canal  which  he  made  ; and  that  he  did  not 
undertake  to  say  that  that  canal  should  do  anything  except 
have  a certain  capacity. 

Mr.  Storey.  Do  you  claim  that  he  could  have  built  a 
canal  on  the  other  side  of  the  river,  and  diverted  the  water 
away  from  us  ? 


968 


Closing  Argument  for  .Respondents. 


Mr.  Child.  So  far  as  this  title  is  concerned,  he  might 
perhaps  have  built  another  canal  on  the  other  side  of  the 
river,  and  taken  the  water  out  and  granted  it  to  anybody  he 
chose,  and  he  could  not  have  been  legally  prevented  by  this 
conveyance. 

Mr.  Richardson.  Did  you  read  all  of  the  clauses  in  the 
deed? 

Mr.  Child.  I have  not  read  the  whole  of  the  deed.  I 
will  leave  it  for  you  to  read,  if  you  see  fit. 

Mr.  Richardson.  There  is  a clause  that  conveys  not  only 
the  water,  but  the  right. 

Mr.  Child.  I have  read  that : that  he  has  a right  by 
this  canal  to  enter  Concord  river ; that  he  has  a right  to 
draw  from  Concord  river  the  water  by  means  of  this  canal ; 
but  he  does  not  say  that  he  shall  have  any  more  than  one- 
eighth  part  of  the  water  in  the  canal ; and  in  this  case  he  is 
not  bound  to  furnish  it. 

Mr.  Storey.  [Reading.]  "Also  the  right  of  said  water 
to  enter  said  canal  from  the  said  Concord  river  to  the  extent 
hereinafter  specified.” 

Mr.  Child.  Yes,  sir:  "to  the  extent  hereinafter  speci- 
fied ; ” and  "the  extent  hereinafter  specified”  is,  that  he  shall 
have  one-eighth  of  all  the  water  there  is  in  the  canal.  Of 
course  I do  not  mean  to  say  that  he  would  have  any  right  to 
change  his  head-gates,  or  to  make  any  change  in  the  manner 
of  the  delivery  of  the  water  from  Concord  river  into  the  canal. 
But,  for  the  purposes  of  this  case,  J do  not  think  it  is  neces- 
sary that  the  commission  should  hold  with  me  on  this  point ; 
and  I would  admit,  for  the  purposes  of  this  case,  that  if  Mr. 
Whipple  had  conveyed  all  the  water  in  the  Concord  river 
under  just  such  deeds  as  this,  he  might  be  prevented  from 
conveying  the  water  to  anybody  else,  or  that  he  might  be 
prevented  from  in  any  way  disturbing  the  water  of  Concord 
river,  and  preventing  it  from  flowing  — the  whole  of  it  — 
into  this  canal.  But  I do  ask  your  Honors’  attention  to  this 
point,  and  that  is,  that  Mr.  Whipple  and  his  grantee,  the 
Wamesit  Power  Company,  owned  the  banks  and  owned  the 
dam.  He  was  the  riparian  proprietor,  and  as  such  riparian 
proprietor  he  makes  these  agreements  to  furnish  power  to 
the  parties  upon  his  canal.  In  other  words,  he  stands  in 
precisely  the  same  position  as  the  Essex  Company,  in  Law- 
rence ; and  that  is,  the  Essex  Company  has  been  presented 
to  you  here  owning  the  power ; they  built  their  canals,  and 
furnish  it  to  various  parties  that  may  buy  land  of  them,  in 
exactly  this  way,  upon  their  canal,  and  then  the  Essex  Com- 
pany comes  here  and  asks  for  damnges  for  this  taking  of  the 
water.  Now,  then,  if  the  proposition  in  that  case  is  sus- 


Closing  Argument  for  Respondents. 


969 


tained, — that  the  Essex  Company  has  the  right,  — then  of 
course  they  alone  have  a right  to  ask  for  damages,  and  no 
one  of  their  grantees  has  the  right  to  come  in  and  ask  for 
damages. 

Mr.  Shattuck.  They  have  not  sold  the  water  to  an 
amount  where  they  can  possibly  be  affected. 

Mr.  Child.  They  claim  to  be  affected  to  the  extent  of 
$150,000.  But  the  Essex  Company  is  furnishing  power 
there  to  the  riparian  proprietors.  They  are  the  owners  and 
the  only  owners,  who  can  ask  for  damages,  and  their  grantees, 
not  being  situatd  upon  the  river,  and  not  being  riparian 
proprietors,  have  no  right  to  come  in  and  petition  for  dama- 
ges from  the  City  of  Boston.  And  therefore,  for  precisely 
the  same  reason,  the  grantees  of  Oliver  M.  Whipple  or  of 
the  Wamesit  Power  Company  have  no  right  to  come  in  here 
and  ask  for  damages.  It  is  only  the  riparian  proprietor  who 
can  ask  for  damages  ; he  is  to  furnish  water  to  his  grantees, 
as  he  has  agreed  in  his  title ; and  if  he  does  not,  then  he  is  to 
be  liable  therefor.  And  I claim,  right  here,  that  the  rights 
granted  here  by  this  grantor,  are  of  such  a character,  that 
they  cannot  be  said  to  have  an  interest  carved  out  of  that 
estate  for  which  they  can  claim  damages,  and  that  they  are 
not  to  be  considered  in  the  same  condition  as  a lessee  for 
years  in  a piece  of  real  estate ; but  that  their  right  is  such, 
by  the  terms  of  the  deed,  that  they  cannot  come  here  under 
this  act  of  the  legislature  and  petition  for  damages. 

Now,  1 desire  to  carry  this  matter  one  step  further.  You 
will  remember,  and  it  has  appeared  here,  that  the  capacity 
and  the  purpose  of  that  canal,  so  far  as  these  petitioners  are 
concerned,  is  to  carry  258  cubic  feet  per  second ; that  the 
grantor  (put  it  as  strong  as  you  please)  has  guaranteed  to  the 
owners  of  these  mills  upon  his  canal,  that  they  shall  have  the 
amount  of  water  that  he  has  conveyed  to  them ; and  this 
riparian  proprietor  h;is  conveyed  away  220  cubic  feet  of 
water ; the  capacity  of  the  canal,  if  you  construe  it  in  that 
way,  is  288  cubic  feet  per  second.  He  has  agreed  to  furnish 
to  his  grantees,  as  has  been  testified  here,  220  cubic  feet,  and 
he  has  reserved  to  himself  68  cubic  feet.  Now,  can  any  one 
of  these  petitioners  claim  from  their  grantor,  or  through  that 
grantor  from  anybody  else,  any  more  than  220  cubic  feet  of 
water  in  that  canal  ? If  they  cannot,  then  the  riparian  pro- 
prietor owns  the  water,  and  has  a right  to  have  the  water  of 
Concord  river  flow  in  its  accustomed  channel,  and  for  his 
use,  subject  to  the  grants  which  he  has  made,  which  in  this 
instance  amount  to  220  cubic  feet  per  second,  out  of  his  canal. 
Therefore,  if  the  City  of  Boston  should  take  less  than  68 
cubic  feet  from  the  river  and  prevent  it  from  flowing  into 


970 


Closing  Argument  for  Respondents. 


that  canal,  he  is  the  only  person  that  has  any  right 
to  claim  any  damages  as  the  riparian  proprietor,  and 
these  parties  cannot  come  and  claim  any  damages  for  the 
taking  of  water  unless  they  can  show  that  the  water  taken  is 
so  much  that  it  is  impossible  that  they  should  receive  from 
their  grantor  the  amount  which  he  granted  to  them. 

I would  admit,  for  the  purposes  of  this  case,  that  if  the 
grantor  had  sold  all  his  water,  and  then  the  City  of  Boston 
took  any  portion  of  it  away,  these  petitioners  would  have  a 
right  to  come  and  ask  for  damages  ; but  the  grantor  having 
reserved  out  of  his  water  68  cubic  feet,  and  the  defendants 
here  having  taken  less  than  68  feet  — for  nobody  has  claimed 
as  yet  that  the  Sudbury  river  was  more  than  one-fifth  of  the 
Concord,  and  that  would  leave  — 

Mr.  Richardson.  Oh,  yes,  sir ; there  are  two  ways  by 
which  it  is  shown. 

Mr.  Child.  I say  (and  I think  the  evidence  will  bear 
me  out  in  it) , that  nobody  has  yet  claimed  that  the  Sudbury 
river  contributed  to  the  Concord  river  more  than  one-fifth  in 
flow;  and  if  you  take  out  of  the  288  feet  one-fifth,  you  leave 
224  cubic  feet  for  the  water  in  that  canal.  And  even  if  you 
put  it  one-fourth,  still,  for  the  purposes  of  this  argument,  it 
makes  no  difference  with  the  result ; that  is,  there  will  be  in 
that  canal  220  cubic  feet  of  water,  which  is  all  that  any  of 
the  petitioners  can  ask  for.  But  I ask  the  attention  of  the 
commission  to  this  one  thing,  right  here,  and  that  is,  there 
has  been  no  proof  introduced  here  that  Air.  Oliver  M. 
Whipple  was  a riparian  proprietor  of  any  sort.  There  has 
not  been  one  particle  of  evidence  brought  here  to  show  that 
the  grantor  under  which  these  parties  claim,  was  a riparian 
proprietor ; and,  unless  he  was  a riparian  proprietor,  I 
claim  that  they  can  have  no  case  here  whatever ; that 
they  must  show,  either  that  they  themselves  are  riparian 
proprietors,  or  that  they  claim  under  a riparian  proprietor. 
They  have  introduced  no  evidence  as  to  the  title  of  Oliver 
M.  Whipple,  or  any  of  his  grantees ; they  have  introduced 
no  evidence  as  to  the  ownership  of  the  land  on  the  other  side 
of  the  river,  and  therefore  we  claim  that  they  cannot,  in  that 
state  of  the  evidence  ask  for  any  damages ; for  although  the 
deed  recites  that  he  has  the  right  to  convey  certain  water, 
still  it  does  not  appear  that  he  was  a riparian  proprietor  at 
all,  or,  if  he  was  on  the  side  where  this  canal  is,  that  he  was 
not  upon  the  other  side  of  the  river,  and  unless  he  can  estab- 
lish a title  to  the  land  on  the  other  side  of  the  river,  from 
the  place  where  the  dam  is  built  to  the  place  where  the  water 
is  returned  again  by  means  of  the  raceway  into  the  river, 


Closing  Argument  for  Respondents. 


971 


then  of  course  he  has  not  a complete  title,  and  has  only  one- 
half  of  the  water. 

Mr.  D.  S.  Richardson.  Do  you  mean  to  say  that,  when  you 
have  proved  yourselves  that  he  had  forty-five  years’  possession 
of  that  dam  and  maintained  it? 

Mr.  Child.  I do.  I do  not  know  that  we  have  said 
anything  of  that  sort,  and  certainly  there  is  no  evidence  of 
that  sort. 

Mr.  Richardson.  We  brought  a witness  who  said  he 
knew  that  Mr.  Whipple  built  that  dam  forty- five  years  ago, 
and  that  he  had  maintained  it  ever  since. 

Mr.  Child.  That  he  built  and  maintained  that  dam  is  of 
no  consequence,  unless  he  was  a riparian  proprietor  above 
the  dam,  and  below  the  raceway.  The  point  I make  is  this  : 
that,  in  order  to  claim  an  exclusive  right  to  the  use  of  any 
water,  a man  must  be  shown  to  be  a riparian  proprietor  from 
above  the  dam  to  below  the  raceway,  on  both  sides  of  the 
stream,  because  he  would  have  to  maintain  the  dam ; non 
constat , that  he  would  not  be  subject  to  reservations  and 
rights  on  the  other  side  of  the  river,  and  subject  to  various 
rights  ; and  I claim  that  it  must  be  shown  that  he  is  a riparian 
proprietor  before  they  can  make  any  claim.  Rut  whether 
he  is  a riparian  proprietor  below,  with  sufficient  right  to  take 
all  this  water  or  not,  still  I claim  that  he  has  granted  out  of 
it  only  220  feet,  and,  as  I said  before,  that  he  has  retained  as 
riparian  proprietor  68  cubic  feet ; that  the  City  of  Boston 
have,  under  no  circumstances,  taken  more  than  68  cubic  feet, 
and  that  therefor  the  City  of  Boston  is  liable  in  damages  to 
Oliver  W.  Whipple,  and  his  grantee,  the  Wamesit  Power 
Company,  and  to  them  alone. 

There  is  one  other  matter  that  I desire  to  suggest,  and 
that  is,  that  the  argument  that  has  heretofore  been  made  in 
regard  to  the  Middlesex  Canal  Company  having  taken  all 
the  water  of  the  Concord  river,  and  that  they  did  actually 
pay,  or  in  law  are  presumed  to  have  paid,  all  damages,  applies 
precisely  to  the  case  of  the  Wamesit  dam,  more  fully  than  to 
the  Billerica  dam,  because  this  is  water  Below  that  dam  ; and 
if  they  had  the  right  to  divert  the  water,  and  did  divert 
it  at  the  dam,  and  it  is  taken  again  for  the  public  use,  as 
has  been  heretofore  claimed,  that  it  applies  precisely  to  the 
Wamesit  dam  cases. 

I now  come  to  the  consideration  of  another  matter,  and 
that  is,  how  much  water  the  City  of  Boston  takes  from  Con- 
cord river  when  it  takes  the  Sudbury  river,  as  provided  in  the 
act  of  the  legislature,  under  its  taking,  subjectto  the  restrictions 
that  I have  heretofore  mentioned.  And  here,  Mr.  Chair- 
man and  gentlemen,  I claim  that  in  estimating  the  amount  of 


972 


Closing  Argument  for  Kespondents. 


water  taken  from  the  Sudbury  river,  and  the  amount  of  power 
taken  away  from  mill-owners  upon  Concord  river  by  that 
taking,  the  system  of  averages  which  has  been  offered  in  testi- 
mony and  relied  upon,  is  faulty,  to  a certain  extent.  I ad- 
mit that  in  a large  series  of  years,  and  over  large  areas  of 
territory  of  equal  sizes,  the  area  of  the  water-shed  will  deter- 
mine very  nearly  the  amount  of  water  produced  in  these 
rivers  ; but  I ask  your  attention  to  one  matter  which  I think 
has  been  admitted,  and  the  whole  case  has  been  brought  upon 
that  theory,  and  that  is,  that  the  City  of  Boston  can- 
not and  will  not  take  the  water  of  the  Sudbury  river,  the 
whole  of  it,  so  as  to  be  felt  by  the  mill-owners,  except  in  the 
dry  season ; therefore,  in  the  consideration  of  this  case,  the 
question  is,  how  much  water  does  the  Sudbury  river  furnish 
in  the  dry  season?  for  it  is  by  taking  away  the  water  in  the 
dry  season  that  the  damage  is  done.  What  is  the  duration 
of  this  dry  season?  The  extreme  claim,  I believe,  unless  it  is 
possibly,  by  the  Saxonville  mill,  — the  extreme  claim,  as  far 
as  Concord  river  is  concerned,  is  six  months,  or  from  six  to 
three  is  the  maximum,  and  the  minimum  claim  of  the  parties 
who  have  appeared  before  you.  The  City  of  Boston  claims 
that  there  will  actually  result  no  taking  away  of  water  that 
can  be  beneficially  and  fairly  used  upon  the  Wamesit  dam, 
except  in  the  three  summer  months,  July,  August  and  Sep- 
tember. The  petitioners  claim  that  they  will  be  affected  more 
or  less,  perhaps,  for  six  months,  the  dry  months,  perhaps 
from  April  or  May  to  October  or  November.  That  being  the 
period  in  which  they  are  damaged,  then,  to  what  extent  is  the 
water  taken  away  by  the  Sudbury  river?  Now,  although 
it  might  appear,  and  actual  measurements  of  the  water  may 
show,  that  the  average  water,  all  day  long,  for  every  day  in  the 
year,  for  a series  of  years,  furnished  by  the  Sudbury  river  to 
the  Concord,  would  be  as  the  areas  of  the  water-sheds,  still 
in  dry  seasons,  we  claim,  and  we  claim  that  we  have 
proved,  that  it  is  not  in  that  ratio,  and  that,  instead  of  being 
2l  per  cent.,  as  claimed  by  the  petitioners,  the  amount  of 
water  diverted  will  lfot  be  more  than  twelve  per  cent,  of  the 
Concord  river.  And,  first,  I call  your  attention  to  one  fact 
that  has  been  testified  to  here,  and  which  I presume  will  not 
be  denied,  and  that  is,  a large  river  yields  more  water  in 
the  dry  season  than  a small  river. 

It  appears  in  the  testimony  of  Mr.  Frizell,  on  page  (196, 
that  the  Merrimack  yields  six-tenths  of  a cubic  foot  into  the 
river  per  square  mile ; that  the  Concord  yields  one-third  of 
a cubic  foot  per  square  mile ; and  that  Hale’s  brook  yields 
one-seventh  of  a cubic  foot  per  square  mile.  Therefore, 
depending  upon  the  size  of  the  river,  the  amount  of  water 


Closing  Argument  for  Respondents. 


973 


from  different-sized  water-sheds  in  the  dry  months  is  as  one- 
seventh  to  six-tenths  of  a cubic  foot  per  square  mile.  There- 
fore, we  claim  that  to  estimate  the  amount  of  water  diverted 
by  the  areas  of  the  water-sheds  in  the  Sudbury  and  Concord 
rivers  for  the  dry  season  of  the  year  is  not  a fair  estimate, 
and  not  one  upon  which  the  commissioners  should  make  up 
their  damages.  And  I will  here  call  your  attention  to  the 
testimony  of  Mr.  Frizell  as  to  the  character  of  the  last  season. 
There  has  been  considerable  talk  here  to  the  effect  that  it 
was  the  dryest  season  that  had  been  known  for  a series  of 
years.  He  has  testified  (page  656)  that  he  does  not  under- 
stand that  it  was  the  dryest  season ; on  the  contrary,  he 
thinks  there  have  been  other  seasons  recently  that  have  been 
dryer,  so  that  this  last  year,  as  far  as  that  theory  goes,  was 
not  an  exceptional  year,  and  we  may  fairly  deduce  a general 
proposition  from  the  facts  known  to  us  during  the  last  sum- 
mer. Therefore  I claim  that  the  Sudbury  river  did  not 
furnish  one-fifth  of  the  flow  of  the  Concord  river,  because 
we  have  shown  that  in  the  dry  seasons  the  areas  of  the  water- 
sheds are  not  to  be  compared  between  small  rivers  and  large 
rivers ; and  the  Sudbury  being  small  as  compared  with  the 
Concord,  the  comparison  between  the  water-sheds  is  not  an 
invariable  criterion  by  which  to  judge  of  the  amount  of  power 
taken  away  from  the  mills  upon  Concord  river. 

The  next  thing  I ask  your  attention  to  is  a comparison  of 
the  gaugings  of  the  Concord  and  Sudbury  rivers  for  the 
months  of  July,  August  and  September ; and  here  I must 
ask  the  attention  of  the  commissioners  to  another  thing,  and 
that  is,  that  taking  the  average  for  those  three  months  of  the 
water  furnished  by  the  Sudbury  river  is  not  a sufficiently 
accurate  criterion  upon  which  to  make  up  the  damages  ; and 
for  this  reason : it  appears  that  ou  the  31st  day  of  July 
there  was  a very  heavy  fall  of  rain,  and  it  brought  up  the 
flow  of  the  Sudbury  to  a very  large  amount,  some  four  or 
five  hundred  cubic  feet,  I believe,  perhaps  more  than  that, 
I do  not  remember  the  figures  ; but  you  will  remember  that, 
as  indicated  by  the  profiles,  the  extra  flow  of  the  Sudbury 
river  lasted  one  week,  and  the  highest  amount  of  water  was 
only  for  a single  day,  so  that,  although  that  very  large  flow 
might  have  lasted  two  or  three  days,  or  at  the  outside  a week 
at  that  time,  if  it  is  averaged  clear  through  July,  August  and 
September  it  will  bring  the  general  average  of  the  river  up 
to  a very  considerable  extent,  when  you  know  that  the  water 
furnished  to  the  mills  upon  Concord  river  by  that  flow  lasted 
only  for  three  days,  or  at  the  outside  for  a week,  and  that 
the  greater  portion  of  that  heavy  flow  ran  over  the  dam  and 
was  wasted,  running,  as  was  testified  here,  at  the  rate  of 


974 


Closing  Argument  for  Respondents. 


1300  cubic  feet  per  second  over  the  dam  in  the  night. 
Therefore,  when  you  average  the  flow  of  the  Sudbury  river 
with  such  a run  as  that  clear  through  the  three  months,  and 
say  that  that  is  power  taken  away  from  the  mills  upon  the 
Concord  river,  it  is  not  a fair  criterion,  I claim,  by  which  to 
estimate  the  damages ; but  that  we  have  a right  to  say  that, 
if  you  are  to  take  the  average,  you  should  so  average  it,  that 
it  is  the  flow  in  the  Sudbury  river  during  that  storm  that 
could  be  stored  and  kept  and  used  by  the  mills ; and  if  you 
average  it  in  that  way  there  will  then  be  no  question,  by  the 
gauging  of  the  Concord  river  and  the  Sudbury  river  during 
the  last  year,  that  the  Sudbury  only  furnished  twelve  per 
cent,  of  the  water.  I will  state  here  that  if  you  average  it 
with  that  heavy  rainfall,  then  an  average  is  shown  of  sixteen 
per  cent,  furnished  by  the  Sudbury  river,  but  that  extra  four 
per  cent,  is  not  water  that  can  be  used  by  the  mills,  and  was 
not  used  by  the  mills  except  for  three  or  four  days. 

Now,  it  has  been  testified,  and  I ask  the  attention  of  the 
commissioners  to  it,  — it  certainly  seems  to  be  not  possible 
of  explanation,  Although  it  is  claimed  that  it  can  be  explained, 
— it  has  been  testified  here  that  the  flow  of  the  Concord 
river  at  Billerica  was  from  425  to  550  feet  per  second,  and 
that  the  flow  of  the  Concord  river  during  the  same  times  was, 
at  the  Massic  dam,  210  cubic  feet  per  second,  and  I think 
that  the  only  explanation  that  it  is  possible  to  make  of  that 
is  the  very  thing  which  I think  should  not  be  taken  by  this 
commission  in  estimating  those  damages,  and  that  is  the 
system  of  averages.  To  show  that  there  was  from  542  to  550 
cubic  feet  at  the  Billerica  dam,  they  took  the  water  throughout 
the  year  and  averaged  it,  while  at  Massic  dam  they  took  the 
water  during  the  dry  months  only,  so  that  we  claim,  and  we 
claim  it  with  a good  deal  of  confidence,  that  the  commis- 
sioners, in  estimating  these  damages,  will  not  be  guided  by 
averages  for  the  year,  and  will  not  even  be  guided  by  aver- 
ages for  the  three  months,  but  that  they  will  take  into  con-’ 
sideration  the  fact,  that  a severe  storm  during  any  dry  season, 
or  two  storms  in  succession,  may  bring  up  the  average  to  a 
very  considerable  extent  for  the  three  months,  when  the 
actual  benefit  that  the  water  is  to  the  mills  is  by  no  means  to 
be  compared  with  the  average  flow  of  water  through  the 
three  months.  Therefore,  we  claim,  on  all  the  testimony 
there  is  (to  be  sure  there  is  not  as  much  as  might  be  desired, 
but  still,  it  is  all  there  is),  we  claim,  on  this  testimony,  that 
Sudbury  river  furnishes  Concord  river,  in  a dry  season,  12 
per  cent,  of  the  entire  flow ; and  in  estimating  the  damages 
that  we  are  to  pay  for  taking  the  water,  we  claim  that  we 


Closing  Argument  for  Respondents. 


975 


entire  amount  of  power  that  these  mills  can  procure  in  the 
summer  months.  Those  figures  are  upon  the  basis  that  the 
areas  of  the  water-sheds  are  not  the  criteria  upon  which  to 
judge  in  the  dry  seasons  ; that  the  gaugings  show  the  actual 
facts  before  you  for  three  months  at  least,  and  by  those 
gaugings  for  one  season,  you  have  a better  guide  for  your 
opinion  and  judgment,  than  by  the  areas  of  the  water-sheds, 
or  by  any  other  evidence  that  has  been  brought  or  can  be 
brought  before  you. 

Now,  if  the  city  have  deprived  the  proprietors  of  the  mills 
upon  the  Concord  river,  and  more  particularly  upon  Wamesit 
dam,  of  any  amount  of  their  power,  and  they  have  shown  a 
title  which  satisfies  you  that  they  can  petition  here  for  these 
damages,  and  that  they  can  be  allowed  them,  then  comes  the 
question  as  to  how  much  damage  shall  be  allowed  to  the  peti- 
tioners ? The  large  body  of  the  evidence  put  in  before  you 
has  been  to  show  the  damage  that  was  done.  It  is  claimed 
here  by  the  petitioners  that  we  have  deprived  them  of  21 
per  cent,  of  their  power,  and  it  is  claimed  by  the  respondents 
that  they  have  only  deprived  them  of  12  per  cent,  of  their 
power,  and  therefore  I think  that  the  damage  must  be  con- 
sidered by  the  commissioners  somewhere  between  these  two 
points  — between  12  and  21  per  cent.  ; and  it  is  upon  that 
basis,  I think,  on  the  evidence,  that  the  commissioners  will 
feel  bound  to  estimate  the  damages.  Now,  it  is  from  21  to 
12  per  cent,  of  the  power  taken  away  from  these  petitioners 
from  one-half  to  one-quarter  of  the  time.  These  are  the 
limits.  The  amount  taken  away  is  between  12  and  21  per 
cent.  ; the  time  during  which  it  is  taken  away  is  between 
one-half  and  one-quarter  of  the  time.  So  the  City  of  Boston 
is  to  pay,  under  these  circumstances,  at  the  outside,  one- 
tenth  of  the  value  of  the  whole  power  — from  one-tenth  to 
one  thirty-second.  That  is,  if  we  take  away  from  the  Sterling 
mill,  for  instance,  which  has  thirty-six  feet  (supposing  it  to 
have  thirty-six  feet  all  the  time),  if  we  take  away  one-lifth  of 
their  power  — that  is,  14|  horse -power  — for  one-half  of  the 
time,  then  we  are  to  pay  damages  to  the  amount  of  one-tenth 
of  the  whole  value  of  the  power.  If  the  estimate  is  made 
according  to  the  theory  of  the  city,  we  are  to  pay  one 
thirty-second  of  the  whole  value  of  the  power. 

Mr.  Storey.  Plow  do  you  get  at  your  one-tenth  ? One- 
seventh  of  one-twelfth  ? 

Mr.  Child.  One-fifth  of  the  power  one-half  of  the  time 
would  be  one-tenth  ; one-eighth  of  the  power  one-quarter  of 
the  time  would  be  one  thirty-second. 

Now,  I do  not  know  that  anybody  will  contend  that  the 
City  of  Boston  is  bound  to  supply  a steam-engine  to  every 


976 


Closing  Argument  for  Respondents. 


one  of  these  proprietors  of  the  mills.  If  any  one  should 
contend  it,  I claim  that  we  cannot  be  called  on  so  to  do  ; 
that  we  can  only  be  called  upon  to  pay  damages  for  the 
water  taken,  and  not  to  supply  the  power  we  have  taken 
away  ; and  the  only  theory  upon  which  this  evidence  is  com- 
petent, in  itself  considered,  is,  that  it  furnishes  one  item 
which  may  be  considered  in  making  up  the  damages  that  are 
to  be  awarded  by  the  commissioners. 

One  moment  upon  the  question  of  steam-power.  It  has 
appeared  in  testimony  here,  that  to  furnish  small  power  was 
almost  impossible.  Mr.  Holmes  testified  that  if  anybody 
wanted  20  horse-power,  it  was  better  for  all  concerned 
that  he  should  put  in  an  engine  of  100  horse-power.  I do 
not  suppose  that  it  will  be  claimed  by  anybody,  or  con- 
sidered by  the  commissioners,  that  therefore  the  City  of  Bos- 
ton is  bound  to  put  in  100  horse-power,  but  that  that  would 
he  the  best  way  for  the  proprietor  of  a mill,  because  he 
could  use  it  advantageously.  Now,  steam-power,  as  has 
been  testified  to,  is  worth  $60  a horse-power  under  the 
circumstances  in  which  these  mills  are,  having  boilers  and  all 
the  arrangements  necessary  for  producing  steam.  Mr.  Mills 
testifies  that  the  value  of  steam-power  is  $60  a horse-power, 
and  Mr.  Farrington  testified  that  the  value  is  $60  per  horse- 
power. Although  it  has  been  testified  that  the  value  of  a 
horse-power  is  $200  per  year,  that  had  reference  to  places  in 
the  City  of  Boston  where  land  is  worth  $50  a foot,  and  it 
is  not  a fair  criterion  upon  which  to  judge  the  value  of 
horse-power  to  these  mills  in  Lowell,  where  land  is  worth 
twenty-five  cents  a foot,  perhaps.  We  claim,  then,  in 
regard  to  steam-power,  that  we  are  not  called  upon  to  fur- 
nish it,  because  it  appears  from  Mr.  Mills’  testimony,  that 
while  steam-power  is  wrorlh  in  Lawrence  $60  a horse-power, 
water-power  is  worth  only  $20  a horse-power  in  the  same 
place,  under  the  same  circumstances ; so  that  the  power 
asked  for  is  a powder  that  is  worth  three  times  as  much  as 
the  power  we  take  away  from  them,  and  therefore  it  ought 
not  to  be  considered,  and  we  ought  not  to  be  called  upon  to 
pay  damages  assessed  upon  any  such  criterion,  because  we 
are  not  bound  to  give  them  a power  that  is  three  times  as 
good  as  the  power  which  we  have  taken  away.  I suppose 
the  only  true  theory  upon  which  these  damages  are  to  be 
assessed  is  damages  in  dollars  and  cents  for  the  power  that 
has  been  taken  away. 

Mr.  Storey.  Mr.  Mills  says,  on  page  74,  in  answer 
to  this  question  by  Mr.  Butler : " My  question  is  this : 
What,  in  your  judgment,  from  your  calculations,  does 
it  cost  a year  to  make  a horse-power  of  steam,  the  engine 


Closing  Argument  for  Respondents. 


977 


being  already  prepared,  a portion  of  the  boilers  being 
heated,  and  an  engineer  and  fireman  to  attend  to  a portion 
of  the  boilers  ? ” 

"A.  I haven’t  the  calculation  here  ; but  from  what  data  I 
have  here  I conclude  it  would  not  be  far  from  $60  per 
annum.” 

Mr.  Child.  I believe  it  has  been  testified  that  all  the 
mills  upon  this  canal  have  their  boilers  and  have  all  their 
arrangements  made  for  making  steam ; that  they  have  their 
firemen  employed,  and  that  the  only  additional  expense 
would  be  that  of  putting  in  the  engine  and  running  steam 
through  the  engine ; and  it  might  be  used  for  all  other  pur- 
poses, as  it  has  been  before.  So  that  I think  it  is  fair  to 
claim,  that,  in  regard  to  these  mills  — although  I might  not 
claim  it  in  regard  to  mills  where  no  steam  is  used  — but  in 
regard  to  these  mills  it  is  fair  to  claim  that  the  additional 
expense  of  putting  the  mills  in  a condition  to  use  steam 
would  be  very  small,  and  that  we  can  safely  estimate  it  at 
$60  a horse-power. 

I was  saying  that  we  claim  that  a fair  estimate,  to  be  made 
by  the  commissioners,  in  ascertaining  the  damage  done  by 
taking  away  the  water  from  the  Concord  river  by  the  City 
of  Boston,  was  between  one-tenth  and  one  thirty-second  of 
the  value  of  the  whole  power  at  these  mills  upon  the  Wamesit 
dam ; and  I claim  that  upon  the  evidence  the  commissioners 
must  be  confined  between  those  two  points,  for  these  are  the 
maximum  and  minimum  points,  as  claimed  here  by  the  peti- 
tioners and  by  the  city,  as  appears  in  the  evidence  produced. 

Now,  to  ascertain  the  value  of  the  power,  we  claim  that  the 
fair  and  proper  way  would  be  to  take  the  market  value  of  the 
property  before  the  power  is  taken  away,  and  the  market 
value  of  the  property  after  the  power  is  taken  away,  so  that 
if  we  could  get  at  it  exactly,  the  difference  in  the  price  would 
be  the  proper  estimate  for  the  damages.  To  get  at  it  exactly 
might  be  perhaps  very  difficult  as  a matter  of  evidence  ; and 
the  theory  upon  which  this  commission  is  appointed  is,  as  I 
understand  it,  that  they  should  examine  the  subject,  and  from 
their  knowledge,  and  from  their  familiarity  with  property  of 
that  kind,  they  may  make  a fair  estimate  of  the  value  of  the 
property  in  that  way,  and  ascertain  the  difference.  I will 
illustrate  the  absurdity,  as  it  seems  to  me,  of  the  claims  of 
these  petitioners,  as  I understand  them,  in  this  manner: 
For  instance,  Mr.  Talbot  testifies  that  the  amount  of  his 
plant  in  Billerica  connected  with  the  mills  is  $400,000. 
That  comprises  his  boarding-houses,  all  the  land  he  owns  at 
Billerica,  all  the  mills  and  all  the  machinery.  Now,  if  you 
take  away  the  entire  power,  he  would  have  left  his  lands, 


978 


Closing  Aegument  foe  Respondents. 


his  machinery,  and  all  the  property  he  has  got  there  ; hut  he 
could  not  use  it.  Suppose,  for  instance,  that  that  property 
would  be  worth,  under  those  circumstances  (and  1 think  that 
he  could  not  complain  certainly),  twenty-five  per  cent,  of  the 
whole  value.  Supposing  after  you  take  away  his  power 
entirely,  you  leave  him  property  there  which  would  be  worth 
$100,000  ; then  there  is  $300,000  damage  done  him  by  taking 
away  the  whole  of  the  water-power.  The  outside  claim  that 
could  be  made  would  be  that  we  had  taken  away  one-tenth 
of  that  power,,  and  therefore  we  should  pay  him  one-tenth  of 
that  damage  ; and  one-tenth  of  $300,000  would  be  the  dam- 
age which  the  City  of  Boston  would  pay  Mr.  Talbot,  that  is, 
$30,000.  But  it  is  claimed  that  we  have  deprived  Mr.  Tal- 
bot of  90  cubic  feet  per  second,  about  75  horse-power;  that 
we  must  give  money  enough,  the  interest  of  which  would 
produce  $100  per  horse-power,  i.  e.,  $7,500  per  year,  equal 
to  130,000  to  150,000  more  than  one-third  of  the  whole 
value  of  the  power. 

Again,  suppose  that  the  Sterling  mills  are  worth  — I don’t 
know  that  we  have  any  precise  evidence  upon  that. 

Mr.  Butlee,  No  ; they  have  not  put  in  any  evidence,  in 
any  of  these  cases,  as  to  the  worth  of  their  property. 

Mr.  Shattuck.  There  is  evidence  that  bears  upon  that 
question. 

Mr.  Child.  There  has  not  been  any  evidence  put  in  as 
to  the  value  of  their  property,  and  therefore  I cannot  con- 
sider it ; but  suppose,  for  illustration,  that  one  of  these 
petitioners  had  property  worth  $100,000  ; we  take  away  all 
his  power,  and  that  leaves  him  $25,000.  We  are  to  pay,  at  the 
outside,  for  the  one-tenth  of  the  power  that  we  have  taken 
away,  which  in  that  case  would  be  one-tenth  of  $75,000  — 
7,500.  I think  that  that  is  a fairer  way  and  a better  way  of 
estimating  than  any  evidence  or  any  theory  that  has  been 
put  in  here  by  the  petitioners  for  you  to  estimate  upon,  and 
certainly  it  is  much  fairer  than  estimating  upon  the  supposi- 
tion that  we  are  to  put  in  steam-power,  which  in  a mill  is 
worth  a great  deal  more  than  water-power,  and  that  we  are 
to  provide  that  much  more  valuable  power,  and  still  we  are 
to  pay  for  the  whole  of  it. 

Then,  again,  I claim  that  the  estimate  that  I have  made, 
one-tenth,  as  the  maximum,  and  one-thirty-second  as  the 
minimum,  is  a fair  and  liberal  one  to  those  petitioners,  for 
it  is  perfectly  evident  to  you,  gentlemen,  as  men  of  common 
sense,  that  the  actual  damage  done  to  these  mills  by  taking 
away  this  power,  is,  that  in  three  months  of  a year,  when 
they  are  doing  a profitable  business,  they  are,  by  reason  of 
our  taking  away  their  power,  deprived  by  that  means  of 


Closing  Argument  for  Respondents. 


979 


doing  one-fifth  more  business  for  three  months.  We  have 
prevented  them  from  getting  one-fifth  more  profits  for  three 
months,  and  therefore  that  is  the  actual  damage  that  is  done 
them  ; and  I say  that  it  cannot  be  believed  that  whatever  sum 
you  may  award  these  gentlemen,  they  will  use  it  for  the 
purpose  of  increasing,  or  supplying  or  supplementing  this 
power,  hut  they  will  probably  endeavor  to  get  along  without 
any  expenditure  and  use  that  for  a capital  in  their  business. 
So  that,  in  the  various  ways  in  which  you  can  look  at  the 
question  of  the  amount  of  damages,  it  seems  to  me,  after  all, 
that  the  testimony  of  experts  as  to  steam-power,  or  anything 
of  that  sort,  while  it  is  an  aid,  is  of  small  value  compared 
with  the  fair,  common-sense  view  of  practical  men  as  to  the 
amount  of  damage  that  is  done  by  taking  away  this  small 
amount  of  power. 

Now,  there  is  one  other  suggestion  made,  and  one  other 
theory  which  has  been  acted  upon  in  regard  to  this  evidence  ; 
and  that  is,  that  the  petitioners  shall  show  to  you  that  they 
are  damaged  so  much  every  year,  and  that  when  they  have 
shown  you  that,  you  shall  give  them  a sum  of  money  which, 
put  at  interest  at  five  per  cent.,  as  claimed  by  one  of  the 
petitioners,  would  bring  in  an  amount  equal  to  the  yearly 
expenses.  Now,  we  claim  that  that  is  an  entirely  erroneous 
theory  upon  which  to  estimate  the  damages,  and  an  unfair 
one ; for.  in  the  first  place,  you  make  a presumption  which 
is  not  a fair  presumption,  find  that  is,  that  this  mill  property 
is  to  last  forever ; that  it  is  going  to  be  carried  on  forever ; 
and  that  this  money  will  always  be  needed,  or  the  interest  of 
this  money  will  always  be  needed,  for  the  operation  of  these 
mills.  I claim,  in  accordance  with  the  ordinary  and  usual 
result  of  all  business  enterprises  of  this  character,  that  that  is 
a presumption  that  would  not  be  carried  out  in  fact,  and  the 
result  would  be,  that  at  the  end  of  a certain  length  of  time, 
longer  or  shorter,  these  parties  would  have  had  their  dam- 
ages paid  to  them  every  year  as  they  went  along,  and  then 
they  would  have  the  capital  sum  left,  after  they  had  finished  and 
given  up  the  business.  I say,  therefore,  that  to  supply  them 
with  a certain  yearly  sum  forever,  is  not  a fair  way  of  ascer- 
taining the  damages.  Of  course  it  is  difficult  to  estimate 
matters  of  that  sort  exactly,  but  I claim  that  it  is  as  difficult, 
and  more  so,  to  presume  and  to  say  that  the  amount  of 
money  to  be  paid  is  such  as  will  forever  furnish  a certain  in- 
come ; and  I think  it  may  be  fairly  put  upon  the  way  men 
generally  do  business,  and  that  is  this  : No  man  in  the  manu- 
facturing business  would  expend  $100,000  to  save  $6,000  in 
expenses  each  year,  because  it  would  be  tying  up  an  amount 
of  capital  which,  in  the  practical,  ordinary  pursuits  of  life, 


980 


Closing  Argument  fur  Respondents. 


can  be  used  to  very  great  advantage,  and  I claim,  that  if  you 
were  to  form  a judgment  upon  any  such  theory,  then  the 
percentage  should  be  at  least  twelve  per  cent.,  and  not  five, 
as  is  claimed  here,  i.  e.,  an  amount  which  must  be  expected 
to  yield  twelve  per  cent.  I claim  that  the  whole  theory  is 
incorrect  and  unfair,  and  not  one  upon  which  the  commis- 
sioners can  base  their  judgment,  but  it  has  been  argued  so 
much  here  that  I feel  called  upon  to  say  something  about  it. 
The  very  best  that  could  be  fairly  done  would  be  to  grant  to 
these  petitioners  a sum  of  money  which,  invested  at  twelve 
or  twenty  per  cent.,  would  produce  a yearly  income  equal  to 
the  additional  expense. 

I believe  that  I have  touched  upon  all  the  points  to  which 
I desire  at  this  time  to  call  your  attention ; and  I have  en- 
deavored simply  to  suggest  matters  rather  than  to  argue 
them,  or  to  quote  the  evidence  sustaining  them.  But  I do 
believe  that  upon  the  question  of  the  right  and  title  of  these 
petitioners  to  come  here  and  claim  damages,  they  can  claim 
them  only  under  the  riparian  proprietor,  and  that,  in  order 
to  claim  them  under  the  riparian  proprietor,  they  must  show 
that  that  riparian  proprietor  has  granted  all  his  power  away, 
or  so  much  of  it  that  the  residue  left  will  be  less  than  the 
City  of  Boston  propose  to  take ; and  that,  therefore,  they 
should  come  here  either  in  the  name  of  the  riparian  proprie- 
tor, or  else,  unless  they  can  show  that  the  entire  power  has 
been  granted  away  by  the  riparian  proprietor,  they  must 
come  jointly  with  him  in  their  petition ; and  that,  in  the 
next  place,  the  amount  which  we  have  taken  away  from  the 
Concord  river  is  twelve  per  cent.,  and  that  is  all  we  should 
be  called  upon  to  pay  for,  because  the  damage  that  we  have 
done  is  confined  by  the  testimony  to  the  dry  season ; that  is 
the  only  time  in  which  it  can  be  considered,  and  during  the 
dry  season  we  have  taken  away  only  twelve  per  cent,  of  the 
power ; that  the  power  is  to  be  estimated  upon  that  basis, 
and  that  the  damages  are  to  be  made  out  by  the  difference  in 
value  between  the  property  as  it  is  to-day  and  the  property 
as  it  would  be  after  the  taking  away  of  this  amount  of 
power  ; that  the  petitioners,  in  order  to  get  at  that  damage, 
are  bound  to  show  the  value  of  their  property,  and,  having 
shown  that  value,  then  it  leaves  the  question  for  you  to  de- 
cide what  the  difference  in  value  will  be  ; not  having  shown 
that,  then  it  is  the  province  of  the  commissioners  to  take 
their  own  views  in  regard  to  it ; — and  I claim  that,  upon  the 
evidence  as  introduced,  and  upon  what  you  have  seen  in  re- 
gard to  this  property,  the  amount  of  damage  is  very  much 
less  th  in  has  been  claimed  by  any  one  of  the  petitioners, 
and  that,  by  applying  that  test  to  this  property,  from  your 
own  knowledge  of  values,  you  will  find  that  to  be  the  case. 


Argument  of  George  O.  Shattuck. 


981 


ARGUMENT  OF  GEORGE  O.  SHATTUCK,  Esq. 

Mr.  Chairman  and  Gentlemen  : — I represent  here  the 
claim  for  damages  to  two  mills  situated  on  the  Wamesit 
dam.  One  of  them  is  the  Sterling  mill,  which  is  a flannel 
mill,  with  seven  sets  of  machinery,  and  a right  to  thirty-six 
cubic  feet  of  water  per  second  under  the  Whipple  deed. 
The  other  is  called  the  new  Belvidere  mill,  which  has  eight 
sets  of  flannel  machinery,  and  a right  to  twenty-seven  cubic 
feet  of  water  per  second.  It  is  admitted  that  the  flow  of 
each  foot  of  water  affords  about  two  effective  horse-power  at 
the  mill.  That  is  the  theory  upon  which  the  Wamesit  Com- 
pany goes,  and  it  is  the  testimony  of  our  witnesses.  Our 
claim  is  for  damages  to  that  property  by  taking  a certain 
proportion  of  the  water. 

It  is  not  necessary  to  consider  the  exact  value  of  that 
property,  but  it  is  desirable  to  know  within  reasonable  limits 
what  it  is  worth.  Of  course  it  is  difficult  at  this  time  to  de- 
termine the  exact  value  by  any  sales  ; and  we  are  obliged, 
therefore,  to  depend  on  the  opinions  of  men  and  upon  other 
facts  which  have  been  introduced.  The  Wamesit  Power 
Company  has  sold  water,  with  the  use  of  the  land  on  the 
Wamesit  dam,  which  we  have,  at  $100  per  horse-power,  fur- 
nished upon  the  wheel. 

Mr.  Butler.  In  no  case. 

Mr.  Shattuck.  I am  relying  upon  the  testimony,  and 
not  upon  the  statements  of  counsel.  Mr.  Hiscox  stated  that 
he  paid  them  $100  per  horse-power.  It  is  true  that  Mr. 
McDaniels  said  that  they  called  it  $75  for  the  horse-power 
and  $25  for  the  land,  and  it  was  not  warranted  for  more  than 
nine  months  in  the  year. 

Mr.  Butler.  Mr.  Hiscox  built  his  own  buildings,  and 
left  them  when  he  went  away. 

Mr.  Shattuck.  Mr.  Hiscox  stated  that  distinctly.  He 
put  up  his  buildings  : they  did  not  furnish  them  to  him. 
But,  at  any  rate,  they  charged  $75  per  horse-power,  with 
something  for  the  use  of  the  land.  We  have  land  there, 
and  the  value  of  that  land  will  be  reduced  just  to  the  ex- 
tent to  which  the  effective  power  is  reduced ; and  calling  the 
72  horse-power  of  the  Sterling  Company  worth  $100  a year 
each  would  give  us  an  income  of  $7,200  a year,  without 
taking  into  account  the  buildings  or  the  machinery,  except 
the  water-wheel.  Of  course  that  would  give  us  a large  es- 

O O 


982 


Argument  of  George  O.  Shattuck. 


timate  for  the  value  of  the  property.  Taking  the  new  Bel- 
videre  mill  and  estimating  that  in  the  same  way,  it  would 
give  us  $5,400  annual  rental  for  the  property  and  buildings, 
and  there  is  no  contention  that,  including  those  two,  the 
rental  would  amount  to  $100  per  horse-power  per  year. 
Therefore  that  would  give  us  an  annual  rental,  without  the 
machinery,  of  $7,200  for  the  Sterling  mill  and  $5,400  for 
the  new  Belvidere  mill.  Then  I take  the  testimony  of  Mr. 
Charles  Faulkner  (whose  mills  are  substantially  like  ours), 
than  whom  there  is  no  fairer  or  more  intelligent  judge  in 
this  Commonwealth.  He  has  seven  sets  of  flannel  machinery 
in  his  mill  at  the  Talbot  dam,  and  he  tells  you  that  their  mill 
property  is  worth  about  $125,000.  As  I say,  I do  not  care 
to  go  into  any  accurate  investigation  of  this  matter,  but  ap- 
proximately from  $100,000  to  $125,000  may  be  considered, 
therefore,  as  not  an  unreasonable  estimate  of  the  value  of 
this  property.  It  is  the  injury  to  that  property  for  which 
you  are  to  give  us  compensation.  The  question  is  how  much 
are  the  water-power,  the  buildings,  the  land,  the  machinery, 
diminished  in  value  by  the  taking  of  whatever  water  the  city 
takes.  That  is  the  question  for  you  to  pass  upon. 

Before  coming  to  the  consideration  of  this  question  of  fact, 
it  is  proper  for  me  to  allude  to  one  or  two  questions  of  law 
which  have  been  presented  by  the  city.  In  the  first  place, 
the  indefatigable  counsel  for  the  city  has  hunted  up  and  pro- 
duced here  the  extinct  charter  of  an  abandoned  canal  com- 
pany, and  held  it  up  here  before  the  city  to  protect  it  against 
our  claim.  That  question  has  been  so  fully  discussed  by  the 
eminent  counsel  who  have  preceded  me,  that  I do  not  care 
to  consider  it. 

In  the  next  place,  it  is  contended  that  we  are  not  entitled 
to  the  benefit  of  the  flow  of  Concord  river  as  it  now  is,  but 
that  we  must  go  back  to  what  is  called  its  natural  flow. 
Now,  if  I understand  the  effect  of  forests  upon  rivers,  we 
should  be  glad  to  go  back  to  the  time  when  the  banks  of  the 
Concord  and  Sudbury  rivers  were  covered  by  unbroken 
forests,  and  when  every  fallen  leaf  was  a reservoir  through 
which  the  water  falling  in  March  and  April  slowly  trickled 
down  to  the  river  in  July  and  August,  and  kept  up  an  equal 
flow  which  no  art  of  the  city,  no  provision  of  reservoirs, 
can  provide.  We  cannot  have  that;  we  must  take  what  is 
practicable  and  reasonable.  It  is  a question  of  damages,  and 
you  are  to  consider,  therefore,  not  necessarily  the  exact  flow 
of  to-day,  but  what,  with  such  improvements  in  the  way  of 
reservoirs  as  may  naturally  be  expected,  is  likely  to  be  the 
flow  of  the  Concord  river  in  the  future.  It  is  for  that  flow 
of  water  for  the  loss  of  which  we  claim  damages. 


Argument  of  George  O.  Shattuck. 


983 


Another  question  is,  whether  we  are  to  have  our  damages 
assessed  once  in  three  years,  but  upon  that  question  it  is 
unnecessary  for  me  to  say  anything,  because  it  seems  to  me 
that  the  Wenham  pond  case  has  settled  it,  even  if  there 
were  any  doubt  about  it  without  any  decision  by  the  court. 

I now  come  to  the  discussion  of  the  main  question  of  fact. 
As  I may  have  another  opportunity,  I prefer,  before  answer- 
ing the  arguments  which  have  just  been  presented  by  my 
friend  the  junior  counsel  for  the  city,  to  see  them  on  paper, 
and,  if  then  they  seem  to  me  to  have  more  weight  than  I 
think  at  present  they  are  entitled  to,  I may  ask  for  an  op- 
portunity to  say  something  in  relation  to  them. 

Mr.  Butler.  That  will  place  me  at  the  disadvantage  of 
having  to  reply  to  you  without  knowing  what  your  reply  is. 

Mr.  Shattuck.  Certainly  it  may  lead  to  that.  If  you 
are  very  strenuous  about  it,  I will  agree  not  to  answer  them. 
I will,  unless  something  surprises  me  on  reading  the  argu- 
ment. 

In  this  discussion  I have  no  desire  to  consider  the  City  of 
Boston  as  in  the  attitude  of  a spoiler.  We  come  here  simply 
for  fair  damages.  I look  upon  the  city  rather  as  a sovereign 
in  the  exercise  of  the  highest  powers  with  which  courts  have 
to  deal,  and  in  the  discharge  of  great  duties  for  the  protec- 
tion of  the  lives  and  the  health  of  her  inhabitants.  This 
claim  is  to  be  met  in  no  illiberal  spirit.  And  I desire  to 
state  here,  that,  While  it  has  seemed  to  me  that  the  counsel 
for  the  city  have  felt  it  their  duty,  in  discussing  questions 
of  law,  to  stand  on  the  extreme  boundaries  of  their  rights, 
and  sometimes  even  to  step  beyond  them,  in  the  discussion 
of  facts  and  the  evidence  of  facts  nothing  substantially  has 
been  put  in  here  which  I desire  to  contradict.  So  far  as  the 
scientific  testimony  introduced  here  by  the  city  is  concerned 
(and  we  must  consider  it  as  endorsed  practically,  most  of  it, 
by  the  eminent  engineer  of  the  City  of  Boston,  who  has  not 
contradicted  a word  of  our  testimony),  every  observation 
made  by  the  witnesses  on  the  part  of  the  city  has  contributed 
materially,  as  it  seems  to  me,  to  our  advantage,  and  to  show 
what  the  truth  is  with  reference  to  this  river ; and,  except  in 
some  minor  details,  there  has  not  been  even  a theory  ad- 
vanced by  any  scientific  man  produced  here  by  the  City  of 
Boston  which  I desire  in  any  way  to  controvert.  I may  say, 
that,  if  the  City  of  Boston  is  placed  in  the  attitude  of  spoiler 
in  any  degree,  it  must  be  because  you,  gentlemen,  do  not 
give  us  full  and  adequate  damages. 

Now,  gentlemen,  there  is- one  consideration  which  lies  at 
the  basis  of  this  case.  It  seems  to  me  that  the  cardinal 
principle  in  this  case  is  this  : You  are  not  here  to  provide  us 


984 


Argument  of  George  O.  Shattuck. 


compensation  for  an  injury  which  we  have  actually  suffered. 
There  will  be  no  week  and  no  day  in  all  the  future  wThen  we 
can  sit  down  at  the  end  of  the  day  or  the  week  and  count 
up,  looking  backwards,  the  exact  deficiency  of  the  water, 
and  say  you  must  pay  us  for  that.  During  all  time,  the 
prudent  mill-owner  must  grapple  with  the  same  uncertainty 
with  which  we  and  you  are  contending  to-day,  in  deter- 
mining what  provision  he  is  to  make.  As  Mr.  Stott  has 
told  you,  in  the  morning,  when  he  goes  down  to  the  mill,  as 
a prudent  man,  he  cannot  run  the  risk  of  having  his  thousand 
spindles  and  his  hundred  laborers  idle,  and  he  must  provide 
every  morning  for  the  largest  contingency.  That  is  not  con- 
troverted by  the  city.  On  the  contrary,  it  was  admitted 
practically  by  Mr.  Farrington,  and  Mr.  McDaniels  said, 
" We  are  watching  the  water  all  the  time,  but  sometimes  we 
get  caught.”  You  are  not  only,  therefore,  to  make  provision 
for  the  days  when  no  water  will  be  running,  when  all  this 
water  will  be  taken,  but  you  ought  even  to  enable  us  to  pro- 
vide for  those  days  when  there  is  a reasonable  uncertainty  in 
the  morning  as  to  whether  water  will  be  furnished  us.  If 
you  forget  this  principle,  if  for  any  moment  that  is  shut  out 
of  this  case,  we  are  liable  to  suffer  an  irreparable  injury. 

Bearing  this  principle  in  mind,  I come  first  to  the  question, 
What  water  will  the  city  take  ? By  their  adjudication  they  have 
taken  on  paper  all  the  water  in  Sudbury  river.  They  have 
taken  all  the  water-rights  which  they  could  take  by  taking 
Sudbury  river,  and,  except  the  limitations  which  are  imposed 
by  the  laws  of  nature,  they  have  offered  no  evidence  to  show 
that  practically  they  will  not  take  it  all.  They  are  building 
an  enormous  conduit  from  the  Sudbury  river  to  the  Chestnut- 
hill  reservoir,  and  you  have  ruled  that  it  was  competent  for 
them  to  show  that  they  do  not  take  the  whole,  — I mean  Jill 
that  it  is  practicable  to  take,  — and  they  have  not  shown  it. 
By  the  building  of  reservoirs  and  holding  back  the  water 
when  it  is  high,  and  by  building  an  enormous  conduit  to  the 
City  of  Boston,  I have  no  doubt  they  will  take  it  all.  We 
all  know  that  if  it  is  once  practicable  to  have  all  the  water 
of  Sudbury  river  in  Boston,  every  gallon  of  it  will  have  a 
market ; it  will  be  demanded  and  used  bv  the  citizens  of 
Boston.  But  I stand  simply  on  the  presumption  of  law. 
They  have  taken  it  all  by  their  paper  title ; they  have  not 
offered  us  a syllable  of  evidence  to  show  that  they  will  not 
take  all  that  they  can ; we  know  that  if  they  take  it,  they 
can  sell  all  they  have ; and  therefore  I say  I stand  here  with 
the  proof  that  they  will  take  it  all,  except  in  time  of  freshets, 
when  it  is  beyond  their  power  to  take  it,  and  then,  gentle- 
men, the  water  of  Sudbury  river  is  of  no  use  to  us,  because 


Argument  or  George  O.  Shattuck. 


985 


it  makes  back-water,  and  we  prefer  not  to  have  it.  So  that, 
so  far  as  this  case  stands,  you  are  to  presume  that  they  will 
take  all  the  water  of  Sudbury  river  from  us,  when  the  water 
would  be  of  any  value  to  us.  I do  not  propose  to  add  any- 
thing further  to  that  branch  of  the  case.  Of  course,  there 
is  another  question  to  be  considered  presently  as  to  how 
much  of  the  year  we  shall  be  damaged  by  it ; but  I say,  so 
far  as  the  taking  of  the  water  of  Sudbury  river  is  concerned, 
it  is  to  be  assumed  that  they  will  take  all  that  can  be  of  any 
value  to  us. 

I now  come  to  the  question,  What  is  the  proportion  which 
the  Sudbury  furnishes  to  the  Concord  ? I have  sometimes 
thought  it  was  hardly  worth  while  to  allude  to  this  question, 
because  it  was  practically  conceded  that  the  Sudbury  water 
ran  over  the  dam  of  the  Essex  Company  at  Lawrence  in  a 
proportion  based  on  the  water-shed  of  the  Sudbury  river, 
and  it  would  certainly  be  a comedy  in  the  eyes  of  all  the 
world  except  my  clients,  if  you  should  find  that  a quantity 
of  water  was  furnished  by  the  Sudbury  river  to  the  Essex 
dam,  which  did  not  run  over,  or  in  some  way  pass  by  the 
Wamesit  dam.  But  I am  willing  to  meet  it,  and  the  evi- 
dence upon  this  point  is  clear.  The  water-shed  of  Sudbury 
river,  as  presented  here,  is  about  73,  75.5,  77.8. 

Mr.  Butler.  Where  did  you  get  the  77.8? 

Mr.  Shattuck.  You  admitted,  in  the  argument  in  the 
Talbot  case,  that  that  was  Mr.  Davis’s  measurement,  but  you 
accompanied  it  with  certain  explanations,  which  properly 
enough  go  with  it. 

Mr.  Butler.  Pardon  me  ; that  is  not  evidence.  I have 
not  undertaken  to  swear  for  my  client. 

Mr.  Shattuck.  I think  that  the  admission  of  counsel  in 
a case  is  pretty  strong  evidence. 

Mr.  Butler.  It  was  not  evidence  in  your  case.  We 
agreed  that  the  evidence  in  the  Talbot  case  should  be  taken. 
An  admission  of  counsel  in  argument  is  not  evidence.  I am 
going  to  admit,  for  instance,  a great  deal  of  water  at  Bil- 
lerica, which  I shall  contend  does  not  get  down  there. 

Commissioner  Russell.  It  was  Mr.  Davis’s  statement 
that  was  admitted  as  testimony.  I supposed  it  to  be  cov- 
ered by  the  agreement.  I do  not  know  that  the  admissions 
of  counsel,  made  in  argment,  are. 

Mr.  Shattuck.  It  was  not  made  in  the  argument.  Judge 
Abbott  stated  it  as  a fact,  and  then  Gen.  Butler  conceded  it. 
It  was  not  any  part  of  his  argument. 

Mr.  Butler.  For  this  purpose,  I am  willing  to  take  it 
that  Mr.  Shattuck  supposed  that  everything  had  been  ad- 
mitted. 


986 


Argument  of  George  0.  Shattuck. 


Mr.  Shattuck.  I do  not  care  to  go  into  it,  because  I do 
not  think  it  is  of  any  very  great  consequence.  It  is  some- 
where from  seventy-three  to  seventy-seven.  It  is  conceded 
also  by  the  City  of  Boston,  and  proved  by  the  testimony  of 
three  or  four  witnesses,  that  a certain  allowance  for  evapora- 
tion and  wastage  is  to  come  out  of  the  lower  Sudbury  and 
the  Concord,  and  that  the  waters  of  the  upper  Sudbury  are 
not  reduced  by  those,  but  come  without  any  deduction  of 
that  sort. 

Mr.  Butler.  I do  not  concede  that. 

Mr.  Shattuck.  Do  you  mean  to  say  that  your  other  con- 
cession was  improvident? 

Mr.  Butler.  No,  sir;  I have  made  no  such  concession. 
I suppose  the  water  of  Sudbury  river  has  the  same  proper- 
ties and  characteristics  as  any  other  water. 

Mr.  Shattuck.  This  is  the  testimony  of  Mr.  Mills  : "I 
have  no  question  that  there  is,  after  the  taking  of  this  water 
from  Sudbury  river,  sufficient  water  coming  in  to  supply  the 
evaporation,  and  all  the  wastage  in  the  territory  below,  so 
that  the  cutting  off  of  this  upper  Sudbury  water  would  be  a 
reduction  of  the  quantity  at  Wamesit  dam  or  at  Lawrence 
by  just  the  amount  of  water  cut  off*”  (p.  91).  Mr.  Shedd 
says  the  same  thing ; Mr.  Frizell  says  the  same  thing.  Now 
Gen.  Butler  says,  " I suppose  that  is  so  ; ” and,  as  they  have 
offered  no  evidence  to  contradict  it,  it  is  not  material  whether 
the  concession  is  accepted  as  an  admission  or  not.  Mr.  Fri- 
zell says,  that,  according  to  experiments,  the  evaporation  in 
the  Sudbury  and  Concord  meadows  would  amount  to  about 
forty-one  feet  per  second.  That  was  only  four  months  in  the 
year.  Now,  I have  no  wish  to  attach  any  undue  importance 
to  that,  or  to  any  of  these  measurements  ; but,  taking  these 
together,  it  would  bring  the  percentage  up  to  nearly  twenty- 
four  per  cent,  at  the  maximum ; and  the  Sudbury  would  fur- 
nish at  Wamesit  dam  about  twenty-four  per  cent,  of  the 
Concord,  based  on  the  water-shed  and  on  this  allowance  for 
evaporation.  I have,  therefore,  thought  it  not  unreasonable, 
not  unjust  to  the  city,  and  no  more  than  fair  to  my  clients, 
to  call  the  amount  furnished  by  the  Sudbury  at  Wamesit 
dam  twenty-two  per  cent,  of  the  Concord,  taking  it  winter 
and  summer.  It  is  a little  more  than  seventy-three,  it  is  less 
than  seventy-seven,  and  makes  a very  small  allowance  for 
the  evaporation.  That  seems  to  me,  on  a careful  examina- 
tion of  the  testimony,  to  be  a fair  result  of  a comparison  of 
all  the  testimony  in  the  case,  and  therefore  I shall  assume 
that  to  be  the  basis.  If  the  commissioners  think  it  ought  to 
be  a larger  percentage,  I hope  they  will  give  it  to  us.  Of 
course  if  it  ought  to  be  less,  a deduction  is  to  be  made. 


Argument  of  George  O.  Shattuck. 


987 


Then  we  come  to  the  evidence  of  Mr.  Fteley,  that,  at  a 
certain  period  in  a dry  time,  there  was  only  about  one- 
eighth  part  as  much  water  flowing  in  the  Sudbury  at  the 
city  dam  as  was  flowing  in  the  Concord  at  the  Wamesit  dam, 
and  the  question  is  as  to  the  effect  of  that  testimony.  Mr. 
Shedd,  who  ought  to  know,  and  who  is  an  intelligent  engi- 
neer, and  who  probably  knows  as  much  about  Sudbury  river 
as  any  man  living,  — because  he  spent  a whole  season  in 
investigating  it, — testifies,  that,  in  his  judgment,  the  Sud- 
bury river  furnishes  its  full  proportion  of  the  water  of  Concord 
river,  in  dry  times  and  wet  times,  and  gives  his  reasons  for 
his  judgment.  He  says  that  the  water-table  which  is  raised 
by  every  increase  in  the  depth  of  the  Concord  river,  not 
only  extends  through  these  meadows,  but  miles  beyond 
them.  Now,  according  to  my  calculations,  if  those  mead- 
ows were  raised  one  foot  in  height,  they  would  store  almost 
two  billions  gallons  of  water ; and  when  you  add  to  that 
this  immense  area  outside  of  the  meadows,  where  the  water 
is  stored  in  the  soil,  and  percolates  slowly  out  as  the  stream 
falls,  no  person  can  tell  with  certainty  when  a drop  of  water 
or  a gallon  of  water  which  passes  over  the  city  dam  will 
reach  the  Wamesit  dam.  It  may  pass  underground,  miles 
away,  into  the  meadows  and  fields  in  the  neighborhood  of 
Concord  river,  stay  there  for  days  and  weeks,  and  then  per- 
colate slowly  back,  and  find  its  way  down  to  the  Wamesit 
dam. 

But  I am  willing  to  leave  this  on  the  testimony  of  Mr. 
Fteley  himself,  which  is  very  clear  and  to  the  point,  and, 
with  the  leave  of  the  commissioners,  1 will  read  a fe'W'  words 
from  his  testimony.  He  took  the  average  flow  of  the  Con- 
cord, and  the  average  flow  of  the  Sudbury,  for  about  fourteen 
days,  after  the  rainfall  of  July  31.  It  turns  out  that  the 
Sudbury  furnished  a little  more  than  one-fifth ; that  is,  the 
proportions  were  1,476  cubic  feet  in  the  Sudbury,  and 
7,084  cubic  feet  in  the  Concord.  Now,  I will  read  his 
testimony : — 

“ Q.  Now,  it  turns  out  that  during  those  14  days,  the  flow  of 
the  Sudbury  was  a trifle  more  than  one-fifth  the  flow  of  the  Con- 
cord ? 

“ A.  Yes,  sir  ; so  I find  it. 

“ Q . Now,  I want  to  know  if  you  can  tell,  taking  your  knowl- 
edge of  the  Sudbury  meadows,  and  the  extent  of  them  for  twenty 
miles  and  more,  how  much  of  the  Concord  river  flow  has  come 
from  the  Sudbury  river  during  the  period  ? 

“ A.  I don’t  see  that  I can  answer  that  question,  sir. 

“ Q.  Can  you  tell  us,  from  any  knowledge  that  observation  or 
experiment  has  afforded  you,  that  the  Sudbury  did  not  contribute 


988 


Argument  of  George  O.  Shattuck. 


its  fair  proportion  to  the  flow  of  the  Concord  during  that  whole 
period  ; that  is  21  per  cent,  about? 

“A.  I should  say  that  there  is  no  reason  to  suppose  that  it  did 
not  contribute  its  fair  proportion. 

“ Q.  Whether  from  any  observations  you  have  ever  made,  or 
any  experiments  that  have  come  to  your  knowledge,  }^ou  can  say 
that  the  Sudbury  did  not  contribute  substantially  that  proportion 
of  all  the  water  that  flowed  through  the  Concord  river? 

u A.  No,  sir  ; I can’t  say  so. 

“ Q.  Is  not  the  recognized  test  of  the  value  of  the  contribu- 
tions of  different  parts  of  the  water-shed  of  a river  the  measure- 
ments of  the  water-shed? 

u A.  It  is  the  general  practice. 

“ Q.  Do  you  know  of  any  better  test  than  that? 

“ A.  No,  sir.  Excuse  me  — there  is  a better  test,  if  you  could 
get  gaugings  for  a great  many  years. 

“ Q.  But,  taking  gaugings  for  any  one  year  or  for  less  than 
three  months  in  one  year,  would  that,  in  your  judgment,  to  any 
extent  control  the  argument  to  be  derived  from  the  water-shed? 

“ A.  Experiments  on  the  flowage  during  a certain  number  of 
months  would  give  a pretty  good  indication  of  what  the  flow  was 
at  the  moment  the  flow  was  taken.  I should  say  that  experiments 
during  a very  wet  season  or  during  a very  dry  season  might  give 
an  indication  of  the  extreme  flows  of  the  minimum  and 
maximum. 

“ Q.  That  is  clear ; but  would  the  proportions  contributed  by 
the  different  parts  of  a water-shed,  either  in  a wet  or  dry  season, 
as  ascertained  by  measurements  during  three  months,  be  any  sub- 
stantial indication  of  the  permanent  flow? 

“A.  It  would  be  an  indication,  but  not  so  as  to  weaken  the 
general  rule  ” — 

the  one  based  on  the  water-shed. 

Something  has  been  said  here  of  the  fact,  which  must  of 
course  be  conceded,  that  there  is  a higher  average  in  a large 
stream  than  a small  one.  Hale’s  brook,  as  has  been  stated 
by  my  friend  who  has  just  argued,  furnishes,  in  a dry  time, 
very  little  water  in  proportion  to  the  number  of  miles  in  its 
water-shed  ; the  Concord,  a larger  proportion  ; the  Merrimack 
a larger  still.  But  the  explanation  of  that  is  obvious.  Here 
are  local  showers  all  over  the  country,  covering  small  areas ; 
here  are  springs  ; one  place  is  dry  one  year  and  wet  in  another, 
and  when,  therefore,  you  have  the  average  contributions 
from  a large  area,  the  larger  the  area  the  higher  the  max- 
imum It  is,  as  I said  in  my  opening,  like  a savings-bank. 
If  there  was  only  one  depositor,  he  would  put  in  and  draw 
out,  and  the  bank  would  have  a large  sum  or  a small  sum, 
or  nothing  at  all.  But  when  you  go  over  the  country  and 
get  the  contributions  from  tens  of  thousands  of  depositors,  it 
keeps  up  the  average,  and  upon  the  same  principle  the 


Akgument  of  George  O.  Shattuck. 


989 


minimum  supply  of  a large  river  is  greater.  Mr.  Shedd 
states  that  that  is  the  reason,  and  there  is  no  other  known 
reason.  The  theory  that  Mr.  Herschel  propounds  here, 
wThich  is  ingenious,  which  anybody  might  suggest,  has  no 
real  basis  in  fact.  Hale’s  brook  is  lower  down  than  Con- 
cord river,  and  yet  Hale’s  brook  has  this  very  small  average 
as  compared  with  the  Concord.  It  is  owing  to  the  fact  that 
the  Concord  has  a wider  field  to  draw  from,  and  therefore 
you  have  an  average  made  up  of  a larger  number  of  contri- 
butions. So  that  I shall  assume  that,  upon  the  evidence,  we 
are  entitled  to  the  full  proportion  which  the  Sudbury  water 
would  furnish,  with  such  additions  as  ought  to  be  allowed 
for  the  evaporation,  which  is  a fixed  quantity,  and  would  be 
just  as  large  without  the  contribution  of  the  upper  Sudbury 
as  it  is  with  it. 

I wish  to  add  one  other  to  the  considerations  which  I have 
already  presented  in  favor  of  our  claim  : that  we  are  entitled 
to  consider  that  twenty-two  per  cent,  of  the  water  at  the 
Wamesit  dam  is  furnished  by  the  Sudbury  river.  We  can, 
of  course,  have  no  better  evidence  in  this  case  than  an  offer 
deliberately  made,  and  in  good  faith,  by  the  city.  It  was 
not  any  offer  of  compromise,  but  an  offer  to  make  so  much 
in  payment,  and  I will  read  : — 

“ Mr.  Butler.  I now  offer,  on  behalf  of  the  city,  in  mitigation 
of  damages,  or  compensation  for  any  water  taken,  an  amount  of 
water  in  the  river,  to  each  of  these  complainants,  to  flow  through 
the  race  ways  and  penstocks  of  each  of  these  complainants,  equal 
to  the  entire  flow  of  the  Sudbury  river,  to  which  they  are  entitled 
under  their  several  deeds  put  in  the  case.  That  is  to  say,  as- 
suming that  the  flow  of  the  Sudbury  is  22  per  cent,  of  the 
waters  of  the  Concord  (which  is  the  highest  amount  claimed),  we 
offer  to  the  Sterling  mill,  who  have  thirty-six  cubic  feet  per  second, 
an  amount  of  water  equal  to  22  per  cent,  of  the  thirty-six  cubic 
feet,  and  to  convey  it,  and  file  a deed,  if  competent  for  the  city  to 
give  a deed  of  that  water,  to  the  party  forever. 

“ Mr.  Shattuck.  We  should  be  glad  to  get  it,  if  we  could  see 
any  practical  way  to  take  it,  and  should  heartily  accept  the  offer. 
But  there  are  difficulties  in  the  way  of  getting  it. 

‘•Mr.  Butler.  If  you  object  to  the  deed,  of  course  we  need 
not  file  the  other  deed  ; but  I offer  to  file  the  other  deed  if  this  is 
admitted. 

“ Commissioner  Russell.  You  mean  to  say  that  you  offer  such 
a deed  in  connection  with  this  one? 

“ Mr.  Butler.  Yes,  sir. 

“ Mr.  Shattuck.  If  you  will  convey  all  the  water  there  is  in 
the  sixt3r-six  feet,  so  that  nobody  can  use  the  water  for  the  Wa- 
mesit mills  unless  there  is  more  than  288  feet,  I do  not  believe 
there  will  be  any  difficulty  in  settling. 


990 


Argument  of  George  O.  Shattuck. 


“ Commissioner  Russell.  We  must  see  what  you  propose  to 
offer  in  the  way  of  evidence,  not  what  you  propose  to  offer  by  way 
of  compromise  to  these  parties.  We  have  nothing  to  do  with  that 
as  commissioners. 

“ Mr.  Butler.  There  is  where  I am  sorry  to  differ  from  you  ; 
it  is  not  pleasant  to  do  so.  I think  we  have  this  right,  under  the 
obligation  imposed  upon  us  to  make  compensation.  I think  you 
will  find  a case  to  that  effect.  However,  I am  trying  to  get  along. 
I make  my  offer  in  good  faith,  and  about  a matter  of  very  high 
concernment.  These  gentlemen  have  a right  to  draw  so  many  feet 
of  the  water,  and  that  is  all  the  right  they  have.  When  the  water 
is  at  the  height  of  the  permanent  stone  dam,  this  will  not  harm 
them.  When  it  is  below  that,  we  offer  them  all  the  water  they  can 
possibly  have.  I have  made  that  offer  heretofore  — made  it  to 
them  in  person  ; but  I have  not  been  able  to  get  anybody  to  take 
any  water ; they  all  want  money.” 


I did  not  suppose  that  the  counsel  would  come  in  here  with 
an  offer  of  compromise,  because  it  clearly  would  not  be 
competent.  I say  therefore  we  have  an  offer  on  the  part  of 
the  city,  based  on  the  theory  which  supports  our  claim.  It 
is  a reasonable  one.  It  is  not  anything  which  the  counsel 
for  the  city  will  retract.  It  was  simply  a fair  and  reasonable 
offer,  and  if  there  had  been  no  other  difficulties  than  might 
occur  without  consideration,  we  might  have  accepted  that 
offer ; but  there  were  reasons  which  stood  in  the  way,  and 
we  did  not  accept  it.  But  as  an  offer  made  to  us,  it  is  com- 
petent for  you  to  consider  it  in  determining  whether  our  theory 
as  to  the  amount  of  water  which  we  are  entitled  to  is  correct, 
or  not. 

I shall  assume,  therefore,  that  the  Sudbury  river  does  fur- 
nish 22  per  cent,  of  the  water  at  the  Wamesit  dam. 

The  next  question  is,  what  is  the  flow  of  the  Concord 
river  at  the  Wamesit  dam  ? 

As  we  are  entitled,  as  has  been  stated  already  by  the 
counsel  for  the  city,  to  no  more  than  thirty-six  feet  per 
second  in  one  case,  and  twenty-seven  feet  per  second  in 
the  other,  when  the  water  equals  288  feet  per  second,  if  the 
flow,  after  the  city  has  taken  its  water,  is  288  feet  per 
second,  then  we  suffer  no  damage,  except,  perhaps,  for 
loss  of  head.  That  we  concede.  And,  for  a similar  reason, 
I apprehend  the  different  mill  companies  in  Lawrence 
have  made  no  claim  for  damages.  The  flow  of  water  is  not 
reduced  by  this  taking  to  a point  which  will  affect  them,  and 
I shall  have  presently  to  consider  that  question  in  reference 
to  the  case  of  the  Belvidere  and  the  Middlesex  Company. 
If,  therefore,  the  flow  of  the  Sudbury  river  before  the  taking 
exceeded  369  feet  per  second,  then  the  taking  of  22  pc*r 


Argument  of  George  O.  Shattuck. 


991 


cent,  does  us  no  harm,  except  from  the  loss  of  head ; and 
the  question  before  us  is,  how  much  of  the  time  does  the 
flow  not  exceed  or  fall  below  369  feet  per  second?  There 
may  be  a small  margin  of  cases  where  the  flow  may  be  uncer- 
tain, and  we  might,  as  prudent  men,  be  entitled  to  provide 
for  a probable  insufficiency  in  the  flow  where  none  may 
occur,  because,  as  I have  already  suggested,  you  are  to  give 
us  something  which  will  enable  us  to  do  what  a prudent  and 
reasonable  man  would  do  to  meet  a contingency. 

As  instructive  upon  the  question  of  the  amount  in  Concord 
river,  I propose  first  to  refer  to  the  deeds  of  Mr.  Whipple. 
His  deeds  contain  a covenant  that  the  canal  shall  be  made 
large  enough  to  carry  288  feet  per  second  without  drawing 
the  water  at  any  raceway  more  than  six  inches  below  the 
top  of  the  stone  dam.  That  is,  if  there  is  a loss  of  head  of 
only  six  inches  between  the  Wamesit  dam  and  Wood 
(because  Wood  and  the  Bleachery  have  grants  on  the  same 
terms,  and  are  at  the  lower  end  of  the  canal),  they  are  en- 
titled to  that  proportion ; but  there  is  also  a covenant  that  a 
flash-board  is  to  be  kept  there ; and  there  is  a covenant  by 
Whipple  that  he  would  make  the  canal  large  enough  to  fur- 
nish that  water.  That  covenant  has  never  been  performed, 
and  the  canal  does  not  at  that  height  of  water  furnish  the 
amount  of  288  feet  per  second,  as  appears  by  the  testimony 
of  Mr.  Herschel.  But  this  deed  tends  to  show  that  the  rea- 
sonable loss  of  head  which  was  contemplated  was  not  to 
exceed  six  inches.  It  has  been  stated  here  by  one  of  the 
witnesses  that  if  you  draw  down  the  head  more  you  can  get 
more  water  through  the  canal ; but  it  is  clear  that  there  will 
be  a point  where  the  diminution  in  space  will  more  than 
offset  the  increase  in  the  rapidity  of  the  flow,  so  that  nobody 
can  tell  how  far  it  will  answer  to  allow  the  head  to  go  down 
before  you  will  diminish  the  amount  that  runs  in  the  canal. 
There  is  no  evidence  on  that  point.  Mr.  Herschel  said  he 
could  not  tell  without  a very  careful  examination ; but  this 
deed  shows  that  the  reasonable  flow  which  it  was  supposed 
would  not  draw  down  the  water  at  the  river  at  any  particular 
time  would  be  about  six  inches  in  the  whole  length  of  the 
canal,  which  is  equivalent,  as  Mr.  Herschel  says,  to  four  and 
a half  inches  between  the  Wamesit  dam  and  the  Lawrence- 
street  bridge.  We  wish  to  ascertain,  therefore,  how  much 
water  flows  in  the  Wamesit  canal,  with  this  reasonable  loss  of 
head,  when  the  water  is  as  high  as  the  flash-boards  and 
runs  over  a little  and  when  it  is  nearly  as  high  as  the  top  of 
the  stone  dam.  Now,  upon  these  questions  there  is  no  con- 
flict of  evidence.  I think  it  is  established,  as  well  as  any  such 
fact  can  be  established,  by  the  testimony  of  two  engineers, 


992 


Argument  of  George  O.  Shattuck. 


— one  from  each  side.  Mr.  Herschel  testifies  that  "if  the 
water  at  the  head-gates  was  even  with  the  top  of  the  stone 
dam,  and  the  water  at  the  Lawrence-street  bridge  was  4^ 
inches  lower,  it  would  carry  about  220  cubic  feet  per  second.” 
Mr.  Frizell  testifies  that  when  the  water  was  even  with  the 
top  of  the  flash-boards  and  there  were  of  a foot  (more 
than  six  inches  loss  of  head  between  that  and  the  Bleachery 
or  Wood’s  raceway)  there  was  a little  short  of  300  feet  per 
second  running  in  the  Wamesit  canal,  and  there  was  a loss 
of  height  during  the  day  at  the  Wamesit  dam  of  only  about 
of  a foot.  Now,  that  shows  as  conclusively  as  anything 
can  that  with  the  water  just  running  over  the  flash-boards 
there  is  about  288  feet  per  second,  with  a loss  of  head  of 
about  eight  inches  in  the  canal.  We  may  safely  assume  that 
there  was  about  288  feet  running  in  that  canal,  — a little, 
perhaps,  in  excess  of  it,  — when  the  water  is  just  running 
over  the  flash-boards.  That,  there  is  no  controversy  about. 
Mr.  Herschel  made  one  measurement  on  the  20th  of  March, 
and  found  368  feet  running  in  the  canal,  but  the  difficulty 
vrith  this  measurement  is  that  we  don’t  know  what  the  head 
was  outside.  To  be  sure,  Mr.  Tilton  says  that  in  the  morning 
there  was  six  inches  on  the  flash-board,  but  the  next  morning 
it  was  larger,  — there  was  a rising  river.  The  river  was 
rising  and  continued  to  rise,  and  went  up  to  thirty  and  thirty- 
six  inches  in  a very  short  time  ; so  that  that  particular  measure- 
ment, being  made  on  a rapidly  rising  river,  is  not  by  any 
means  instructive  ; in  fact,  it  ought  to  be  left  out  of  the  case 
as  of  no  value  whatever.  Mr.  Herschel  then  says,  on  cross- 
examination,  that  if  there  had  been  a little  less  loss  of  head 
the  flow  would  have  been  reduced  to  about  280  feet,  and  the 
reasonable  loss  of  head  is  what  we  are  to  take ; and  I 
shall  assume,  with  this  evidence,  which  is  not  contradicted 
and  cannot  be  controlled,  that  the  amount  flowing  in  the 
canal,  when  it  is  even  with  the  top  of  the  flash-boards,  does 
not  exceed  300  feet  a second,  and  is  probably  about  288  feet, 
and  when  it  only  comes  up  to  the  top  of  the  stone  dam  it  is 
about  220  feet  per  second.  Now,  with  these  facts  proved, 
the  testimony  of  Mr.  Tilton  and  his  observations  for  a period 
of  two  years  become  of  immense  value.  We  have  also  the 
measurements  made  by  the  city  at  the  time  that  Mr.  Tilton 
was  taking  the  measurements.  I will  read  the  result  for  a 
few  days  : — 

“ 1876.  August  10th.  The  depth  of  water  on  the  flash- 
boards  at  8.30  A.  M.,  or  between  8 and  9 o’clock,  was  six 
inches;  the  flow  was  332  feet  per  second.”  (That  was  the 
average  flow  for  twenty-four  hours,  and  I suppose  when  the 


Argument  of  George  O.  Shattuck. 


993 


flow  in  the  river  is  as  large  as  that,  there  is  not  a very  great 
difference  between  the  different  hours  of  the  day  and  night.) 

Commissioner  Russell.  Measured  where  ? 

Mr.  Shattuck.  I was  going  to  add  at  the  end  that  this 
included  Hale’s  brook,  which  makes  a considerable  addition. 
These  measurements  are  at  Massic  falls. 

Aug.  1 1 , 5 in.  292  ft.  water  per  second,  including  Hale’s  brook. 
44  12,  5 in.  253 ft.  4 4 4 4 4 4 4 4 

44  14, 4in.  214ft.  4 4 4 4 4 4 4 4 

44  15,  4 in.  179ft.  4 4 4 4 4 4 4 4 

44  16, 3 in.  183  ft.  4 4 4 4 4 4 4 4 

The  water  from  Hale’s  brook  probably  at  that  time  amounted 
to  nearly  20  feet  per  second.  It  varied  all  the  way,  but  I 
And  by  comparing  — 

Mr.  Butler.  These  are  as  appears  over  the  Massic 
falls? 

Mr.  Shattuck.  The  Massic  falls  and  the  average  for  24 
hours.  From  this  evidence  I contend,  and  it  seems  to  me  to 
be  a fair  assumption,  that  if  the  water  at  8.30  o’clock  in  the 
morning  does  not  exceed  6 inches  over  the  flash-boards  there 
will  be  less  by  a considerable  amount  than  369  feet  per 
second  running  in  the  river,  and  we  shall  be  affected  by  the 
loss  of  the  Sudbury  river.  Of  course,  in  the  case  of  an  ex- 
traordinary fall  in  the  river  we  should  be  affected  very  largely  ; 
in  the  case  of  a rapid  rise  after  8.30  o’clock  in  the  morning 
we  might  not  be  affected ; but  this  is  the  best  evidence  that 
can  be  furnished  in  this  case,  and  we  must  act  upon  it. 
Therefore,  we  wish  to  ascertain  during  the  years  from  April 
1st,  1874,  to  April  1st,  1876,  the  period  during  which  Mr. 
Tilton  measured,  how  much  water  there  was  on  the  dam  at 
8.30,  or  between  8 and  9 o’clock  in  the  morning.  I have 
taken  from  his  table  as  printed  the  number  of  days  when 
it  did  not  exceed  6 inches  on  the  Wamesit  dam  in  the  morn- 
ing. In  April,  1874,  there  were  eight  days  when  it  did  not 
exceed  it ; in  May,  1874,  there  were  no  days  when  there  were 
not  over  six  inches  ; in  June  there  were  eight  days  ; in  July, 
31  days,*  in  August,  31  days;  in  September,  30  days;  in 
October,  31  days;  in  November,  30  days;  in  December,  31 
days;  in  January,  31  days;  in  February,  26  days,  and  in 
March,  7 days,  making  264  days  between  the  first  day  of 
April,  1874,  and  the  first  day  of  April,  1875,  when  there  was 
a flow  at  the  Wamesit  dam,  so  small  that  we  were  affected  by 
it.  That  is  8 months  and  24  days. 

Beginning  with  April  1,  1875,  in  April  there  were  no  days 
when  it  was  less  than  6 inches  on  the  dam  at  half-past  eight ; 


994 


Argument  of  George  O.  Shattuck. 


in  May  there  were  7 days;  in  June,  19  days;  in  July,  31 
days  ; in  August,  31  days  ; in  September,  30  days  ; in  October, 
27  days  ; in  November,  17  days  ; in  December,  20  days  ; in 
January,  31  days  ; in  February,  18  days  ; andin  March,  19  days 
— that  is  8 months  and  10  days,  making  250  days  that  the 
flow  was  so  small  that  the  taking  away  of  22  per  cent.,  or 
what  the  Sudbury  river  takes,  would  affect  our  mill-power. 
It  is  a most  extrordinary  commentary  on  the  effect  of  the 
rainfall.  Some  months  when  there  was  a very  large  rainfall 
there  was  a very  small  flow,  and  vice  versa , but  that  is  some- 
thing which  it  is  not  necessary  to  go  into ; that  is  at  Lake 
Cochituate. 

Mr.  Butler.  The  less  said  about  that  the  better. 

Mr.  Shattuck.  You  will  observe  we  are  going  on  the  theory 
of  the  city,  not  on  any  average,  but  on  actual  observations. 
There  is  another  fact  which  is  pertinent.  Mr.  Tilton,  who 
made  these  measurements  and  who  seemed  to  be  a careful 
observer,  said  that  when  there  was  not  over  4 inches  on  the 
dam  at  half-past  eight  it  usually  came  to  a drizzle  or  didn’t  run 
over  at  all  sometime  during  the  day,  and  if  there  was  not 
over  3 inches  it  ceased  to  run  over  entirely  during  the  day ; 
therefore  I have  made  another  calculation  of  the  number  of 
days  when  it  did  not  exceed  3J  inches,  because  when  it  did 
not  exceed  3J-  inches  upon  the  dam  in  the  morning,  we 
practically  lose  the  whole  of  our  22  per  cent.  This  is  the 
time  when  the  river  did  not  run  over  all  day.  It  shows  that 
there  was  not  flow  enough  in  the  Concord  river  during  the 
day  to  more  than  supply  the  Wamesit  canal  when  it  takes  300 
feet  or  a little  less  than  300  feet  per  second.  Before  coming 
to  that,  I will  read  what  Mr.  Tilton  did  say : — 

“ Q.  If  it  did  not  run  over  more  than  three  or  four  inches  in  the 
morning,  wouldn’t  you  expect  it  not  to  run  over  at  all  sometime 
during  the  day? 

“A.  If  it  ran  over  three  or  four  inches,  I should  expect  it 
would  drizzle  over  all  day,  until  towards  night. 

“ Q.  If  it  didn’t  run  over  more  than  four  inches  at  half-past 
eight  in  the  morning,  there  would  be  sometime  during  the  day 
when  it  wouldn’t  run  over  at  all,  would  there  not? 

“A.  I should  think,  if  it  ran  over  three  or  four  inches  in  the 
morning  that  we  could  start,  and  along  in  the  afternoon,  or  about 
noon,  the  Billerica  water  would  get  down  and  help  it,  so  that  it 
would  drizzle  a little  mite  over  the  flash-boards. 

“ Q.  Hardly  run  over,  would  it?  You  would  not  call  it  running 
over,  would  you  ? 

“ A.  No,  sir.” 

That  is  his  statement : up  to  four  it  would  drizzle,  but 
below  three  it  would  not  drizzle.  I have  therefore  taken  off, 


Argument  of  George  O.  Shattuck. 


995 


in  order  to  make  it  perfectly  fair,  three  and  a half  inches  as 
the  measurement  which  would  indicate  that  there  would  be 
no  more  than  water  sufficient  to  supply  the  Wamesit  canal. 
Taking  the  same  months,  in  April,  1874,  there  was  no  day 
when  it  was  so  low  as  that;  May,  there  was  no  day ; June, 
there  was  no  day ; July,  twenty-tour  days  ; August,  nineteen 
days  ; September,  thirty  days  ; October,  thirty-one  days  ; No- 
vember, thirty  days  ; December,  thirty-one  days  ; January, 
thirty-one  days  ; February,  twenty-three  days ; and  March, 
one  day  (that  was  part  of  the  time  when  the  city  were  taking 
this  water)  ; in  all,  221  days,  or  seven  months  and  eleven 
days  that  there  was  so  little  water  running  in  that  canal  that 
we  lost  the  whole  of  our  twenty-two  per  cent. 

Then  I come  to  April,  1875,  and  there  was  no  day  when 
the  water  was  low  enough ; May,  there  was  one  day;  June, 
fourteen  days ; July,  twenty-eight  days ; August,  twenty- 
three  days ; September,  thirty  days ; October,  seventeen 
days  ; November,  twelve  days  ; December,  seventeen  days  ; 
January,  sixteen  days,  February,  seven  days;  and  March, 
three  days;  making  168  days,  or  five  months  and  eighteen 
days ; so  that  we  lose  the  full  twenty-two  per  cent,  seven 
months  and  eleven  days,  between  April  1st,  1874,  and  April 
1st,  1875,  and  five  months  and  eighteen  days  between  April 
1st,  1875,  and  April  1st,  1876  ; and  certainly  I shall  be  jus- 
tified in  taking  the  average  of  those  two.  The  winter  of 
1874  was  rather  dryer  than  usual,  and  the  city  was  taking 
some  of  the  water,  and  in  1875  and  1876  it  was  rather 
wetter,  perhaps ; taking  the  average  would  give  us  a little 
over  six  months.  These  conclusions  are  supported  by  the 
use  of  the  water  on  the  Wamesit  canal,  by  the  limits  of  the 
use  made  of  it.  The  mills  not  owned  by  the  Wamesit  Com- 
pany are  entitled  to  220  feet  a second,  and  every  man’s  flume 
has  been  inspected,  so  that  he  can  draw  no  more  than  that. 
They  may  get  more  than  their  proportion  when  the  water  is 
beginning  to  fall  off,  but  I don’t  know  whether  they  do  or 
not. 

Mr.  Butler.  I don’t  understand  it  to  be  so. 

Mr.  Shattuck.  Well,  leave  it  all  out;  I don’t  attach 
much  argument  to  this.  I merely  put  it  in  for  what  it  is 
worth.  It  is  simply  an  answer  to  any  attempt  by  the  other 
side  to  show  that  there  is  a much  larger  flow  in  the  river,  by 
showing  how  much  power  is  used.  The  mills  not  owned  by 
the  Wamesit  Company  are  entitled  to  220  feet,  and  the 
guaranteed  horse-power  is  207,  which  requires  about  323 
feet  per  second.  They  went  over  a large  number  of  mills  ; 
they  made  it  207  horse-power,  you  will  recollect ; of  the 
guaranteed  mills  they  stated  there  was  some  loss  from  friction, 


996 


Argument  of  George  O.  Shattuck. 


and  from  the  fact  that  the  mills  were  not  on  a straight  line. 
I have  not  taken  that  into  account.  Whatever  that  amounts 
to  is  to  be  added.  I say  the  power  the  company  has  sold  and 
guaranteed  would  be  provided  by  323  feet  of  water ; but 
you  are  to  credit  the  Bleachery,  which  does  not  use  over 
eight  feet  of  water  out  of  thirty-six  in  any  ordinary  times, 
with  twenty-eight  feet.  The  Belvidere  has  not  been  running. 
For  that  credit  twenty-seven  feet,  and  we  have  fifty-five  feet  to 
be  deducted  from  the  322,  which  leaves  268  feet,  which  is 
the  amount  which  they  have  been  using  there  the  past  year. 
Then  you  are  to  add  something  to  those  mills  above,  which 
they  let  without  guaranteeing.  But  this  is  all  they  see 
fit  to  guarantee.  They  practically  found  it  would  not  do,  I 
suppose,  to  guarantee  anything  more  than  that.  After  cred- 
iting the  mills  which  are  not  running,  and  deducting  that 
from  the  gross  amount,  it  brings  it  down  to  about  268  feet 
as  the  amount  which  they  are  using  when  steam  is  not  used. 

I think  I have  given  the  best  evidence  which  has  been  fur- 
nished, to  show  the  actual  amount  of  water  running  in  Con- 
cord river,  and  how  much  of  it  we  are  to  lose ; and  it 
appears  from  this  that  for  nine  months,  about,  within  a few 
days  of  nine  months,  we  lose  some  part  of  the  power  to 
which  we  are  entitled.  We  do  not  lose  it  in  any  six  months 
which  we  can  count  upon,  or  during  any  week  that  we  can 
count  upon,  and  there  is  no  month  in  the  year  during  that 
period  when  we  did  not  lose  some  power.  One  year  we 
didn’t  lose  anything  in  May ; the  other  year  we  didn’t  lose 
anything  in  April ; but  from  January  1st  to  the  last  day  of 
December,  year  by  year,  we  are  liable  any  day  to  suffer  by 
this  taking.  Of  course  if  there  is  high  water  we  are  reason- 
ably  certain  for  a few  days  that  we  shall  not  have  to  furnish 
it.  There  is  no  week  or  month  that  we  are  safe  against  this 
loss  of  power,  and  we  must  therefore  provide  for  it,  and  the 
question  is,  what  will  it  cost  us? 

Upon  this  question  I have  already  stated  generally  the 
view  which  we  take,  and  which  the  evidence  supports.  A 
provision  must  be  made  which  will  enable  us  to  provide  as  a 
prudent  and  reasonable  man  will  provide  for  the  contingen- 
cies, and  that  cannot  be  shown  more  clearly  than  by  reading 
a little  of  the  evidence  of  Mr.  Stott  and  of  Mr.  Farring- 
ton : — 

John  Stott,  page  676.  “If  we  have  g6t  to  get  up  strain  at  all 
to  run  the  engine,  it  makes  no  difference  in  the  expense  of  fuel ; 
that  is  to  say,  it  costs  as  much  to  make  a fire  under  the  boiler  to 
make  steam  for  that  engine,  not  knowing  how  much  we  would  have 
to  use  it,  as  it  would  if  we  were  to  run  all  day.” 


Argument  of  George  O.  Shattuck. 


997 


It  takes  nearly  a ton  of  coal,  more  or  less,  to  fire  up  and 
start  the  engine.  He  also  says  if  they  get  up  steam  at  all, 
whether  they  need  one  horse-power  or  five  horse-power,  that  it 
costs  them  as  much  as  it  would  to  run  twenty  horse-power 
nearly  the  whole  day,  because  the  fire  must  be  built  and  the 
machinery  started,  and  you  cannot  start  it  without  substan- 
tially that  expenditure. 

Then  again  I have  the  evidence  of  Mr.  Farrington.  The 
question  was  this,  on  page  753  : — 

4‘  Q.  You  would  say  it  would  be  as  cheap  to  run  the  twenty 
horse-power  all  the  time,  if  you  had  to  furnish  it  reasonably  often? 

fck  A.  Yes,  sir;  I should  run  it  constantly  for  the  reason  (if  you 
desire  to  know  that)  that  in  a steam-engine  under  such  circum- 
stances, if  it  be  properly  fitted  up,  the  exhaust  steam  is  used,” 
etc. 


That  is  his  reason,  and  that  is  a matter  which  I shall  con- 
sider presently  by  itself.  In  all  the  questions,  and  I don’t 
know  that  there  will  be  any  controversy  on  this  point,  put 
by  the  city,  they  assume  that  the  question  was  one  of  twenty 
horse-power,  that  being  the  smallest  that  can  be  furnished 
practically  with  such  an  engine  as  it  would  be  necessary  to 
put  into  these  mills  ; and  Mr.  Farrington  estimates  that  to 
furnish  the  Sterling  mills  with  twenty  horse-power  ought  to 
cost  $1,500  a year.  I put  this  question  to  Mr.  Farrington, 
page  751  : — 

“ Q.  Don’t  you  put  in  nearly  as  much  coal  and  fuel  to  start  a 
fire  with  for  twenty  horse-power,  as  if  you  were  going  to  have  150 
or  200  horse-power? 

44  A.  Not  quite  as  large  a difference  as  that.” 

I assume,  therefore,  gentlemen, — and  I shall  proceed  on 
that  assumption, — that,  if  we  furnish  the  steam-power,  we 
must  provide  for  at  least  twenty  horse-power ; for,  if  it  is 
necessary  to  use  it  any  part  of  the  day,  and  you  begin  in  the 
morning  and  use  it  an  hour,  you  may  have  to  use  it  another 
hour  at  the  end  of  the  day.  You  cannot  tell  whether  you 
will  have  to  or  not.  If,  therefore,  it  is  necessary  to  use  the 
power  at  all,  — or,  to  go  one  step  further,  if  it  is  so  probable 
that  it  will  be  necessary  to  use  it,  that  a prudent  man  will 
provide  for  it,  — you  must  pay  us  for  twenty  horse-power. 
Nothing  less  will  compensate  us.  That  is  the  uncontradicted 
testimony  of  those  two  witnesses.  Mr.  Farrington  thinks  that 
an  engine  of  thirty-five  or  forty  horse-power  would  answer 
for  us.  The  others  put  it  larger — forty  or  fifty  horse-power. 


998 


Argument  of  George  O.  Shattuck. 


And  as  to  this  class  of  evidence,  I wish  to  say  that,  after 
reflection,  I did  not  think  it  necessary,  where  the  evidence 
was  plain,  to  introduce  cumulative  testimony,  became  the 
commissioners  have  experience,  and  no  doubt  on  this  subject 
are  just  as  well  instructed  by  one  man  who  states  the  truth 
as  they  can  be  by  a dozen  ; and  when  Mr.  Stott  comes  here 
and  states  the  exact  working  of  this  auxiliary  steam-power, 
what  the  cost  is  to  them  as  proved  by  experience  in  .a  mill 
which  has  been  running  about  a month  in  a year  up  to  this 
year,  and,  except  in  case  of  freshets,  nearly  all  the  time  dur- 
ing the  last  three  or  four  months,  — when  he  states  that  ex- 
perience, and  nobody  comes  up  here  to  contradict  it,  and  the 
only  witness  the  city  introduces  here  confirms  it,  we  have 
a right  to  rely  upon  it,  and  I shall,  therefore,  assume  that 
nothing  less  than  the  cost  of  twenty  horse-power  will  pro- 
vide compensation  for  the  injury  which  is  done  us.  Of 
course  the  question  whether  we  are  to  introduce  steam  or 
not  is  a practical  one.  You  are  to  give  us  compensation. 
If  we  can  have  compensation  in  any  less  expensive  way, 
reasonably  we  have  no  right  to  claim  anything  more,  but 
practically  all  these  mills  at  Lowell,  as  the  evidence  shows 
here,  are  running  to  the  full  extent  of  their  power,  and 
every  one  of  them  has  gone  to  the  extreme  verge  of  its 
power,  and  any  change  in  that  power  will  require  them  to 
introduce  steam.  Some  of  the  mills  have  done  it  already. 
The  Belvidere  No.  2 has  never  used  it.  It  bought  the  en- 
gine because  they  expected  this  taking  of  the  water,  but  they 
stopped  for  financial  reasons  and  have  never  used  it.  They 
put  it  in  here  for  this  purpose,  solely  for  this  reason. 
There  is  no  doubt  the  other  mills  will  do  it.  They  have 
never  practically  gone  to  the  Wamesit  Company  to  buy 
power  of  them.  They  found  it  advisable  and  expedient  to 
put  in  their  engine,  and  there  isn’t  any  doubt  whatever  that, 
at  the  moment  when  this  water  is  taken,  and  when  this  is 
settled,  that  all  these  mills  must  put  in  engines,  and  that  is 
the  practical  measure  of  damages ; and  every  one  of  them 
will  run  just  as  the  Belvidere  No.  2 runs,  with  a forty  or 
fifty  horse-power  engine,  and  will  expend  for  it,  when  they 
use  it  at  all,  the  full  cost  of  twenty  horse-power. 

Now  I come  to  the  question  of  what  twenty  horse-power 
is  worth,  and  I suppose  I should  be  safe  enough  to  leave  that 
question  without  any  discussion.  The  exact  loss  of  power 
in  the  Sterling  mill,  taking  away  twenty-two  percent.,  would 
be  15.64  horse-power.  The  exact  loss  of  power  in  the  Belvi- 
dere mill  would  be  11.88,  and  the  evidence,  as  I have  already 
said  — and  I will  not  repeat  it  — shows  that  they  cannot 


Argument  of  George  O.  Shattuck. 


999 


make  that  up  without  using  twenty  horse-power,  and  nobody 
contradicts  it  practically. 

Mr.  Butler.  A twenty  horse-power  engine  ? 

Mr.  Shattuck.  Oh,  we  shall  have  a forty  horse-power 
engine,  but  we  have  to  pay  the  cost  of  twenty  horse-power. 
In  order  to  make  it  available  we  have  to  furnish  twenty 
horse-power. 

Mr.  Butler.  I wish  you  would  read  the  witness’s  testi- 
mony. 

Mr.  Shattuck.  Whose  testimony? 

Mr.  Butler.  Anybody’s  who  testifies  that  you  will  have 
to  use  a forty  horse-power  engine  in  order  to  get  up  twenty 
horse-power. 

Mr.  Shattuck.  Well,  I shall  have  to  use  your  own  wit- 
ness, Mr.  Farrington.  Mr.  Farrington  says  that  exactly, 
word  for  word,  — thirty-five  to  forty  horse-power. 

Mr.  Butler.  The  point  exactly  is  this,  Brother  Shattuck  : 
it  is  more  convenient  to  have  a forty  horse-power  engine, 
and  perhaps  more  economical,  but  you  don’t  have  to  get  up 
twenty  horse-power  in  order  to  use  fifteen. 

Mr.  Shattuck.  If  that  is  intended  to  aid  me,  I am 
obliged  to  you  ; if  it  is  intended  as  a statement  of  fact,  I 
say  it  is  contradicted  by  the  evidence.  That  is  all. 

Mr.  Butler.  Pardon  me ; that  is  my  understanding  of 
the  fact  as  testified  to,  if  testified  to  at  all,  because  nobody 
would  have  testified  to  that  unless  it  was  a crazy  man. 

Mr.  Shattuck.  It  is  the  testimony  of  Mr.  Farrington, 
and  of  Mr.  Holmes  too,  that  there  was  a margin  necessary, 
and  it  has  not  been  contradicted  either. 

Mr.  Butler. 
margin  of  power. 

Mr.  Shattuck.  Oh,  I beg  your  pardon.  I will  read  you 
a little,  if  you  don’t  recollect,  in  regard  to  that.  This  has 
not  been  contradicted  by  anybody : " I should  put  in,  if  I 
wanted  to  furnish  twenty  horse-power  as  a maximum,  as 
auxiliary,  perhaps  an  engine  of  from  thirty-five  to  forty  horse- 
power as  a safety.”  That  is  Mr.  Farrington’s  statement. 
Now  I wish  to  read  the  evidence  which  I think  is  not  only 
uncontradicted,  but  which,  I think,  seems  to  commend  itself 
to  good  sense  to  such  an  extent  that  I read  it  with  entire 
confidence  that  it  will  be  accepted  : — 


But  that  is  a margin  of  engine  and  not  a 


“ Q . Practically,  how  much  steam  is  required  when  you  are 
using  the  smallest  amount? 

“A.  If  we  have  got  to  get  up  steam  at  all  to  run  the  engine,  it 
makes  no  difference  in  the  expense  of  fuel ; that  is  to  say,  it  costs 
as  much  to  make  a fire  under  the  boiler  to  make  steam  for  that  en- 


1000 


Argument  of  George  O.  Shattuck. 


gine,  not  knowing  how  much  we  would  have  to  use  it,  as  it  would 
if  we  were  to  run  all  day. 

“Q.  Can  you  illustrate  that  by  any  instance  within  a day  or 
two? 

UA.  Yes,  sir.  One  instance  yesterday.  Day  before  yesterday 
the  water  was  in  such  condition  that  it  appeared  that  we  should 
be  obliged  to  use  steam,  and  the  order  was  to  get  up  steam  to  run 
the  engine,  and  we  had  a fire  on  purpose  for  steam  for  the  engine ; 
and  I think  they  ran  it  an  hour  and  a half  or  two  hours,  and  then 
the  water  came,  so  that  the  engine  was  not  wanted. 

“ Q.  How  much  coal  do  you  use? 

UA.  Well,  it  takes  somewhere  in  the  vicinity  (not  having  the 
exact  figures)  of  a ton  of  coal  to  start  the  fire  and  run  the  steam- 
engine. 

“ Q.  If  you  wanted  twenty  horse-power  for  all  da}r,  how  much 
more  coal  would  it  take? 

u A.  No  more  at  all.  We  should  not  have  to  get  any  more  fire. 

“ Q.  Practically,  then,  if  you  have  to  furnish  any  auxiliary  power, 
3Tou  must  use  fuel  enough  to  provide  pretty  large  power — is 
that  so? 

“ A . Yes,  sir. 

“ Q.  And  if  you  have  to  provide  it  for  any  part  of  the  day,  you 
must  provide  fuel  enough  substantially  for  the  whole  day  ? 

UA.  Yes,  sir,  substantially  speaking,  the  whole  day.  You  can’t 
tell  when  the  water  is  going  down,  and,  unless  you  want  to  stop 
the  machineiy  entirely,  you  must  have  steam  to  take  the  place  of 
the  water,  and  to  do  that  you  must  have  fire  under  the  boiler. 

“ Q.  Could  you  tell  practically  any  day  this  last  summer,  with  a 
few  exceptions,  in  the  morning,  whether  you  would  need  steam  all 
day  or  not? 

“A.  Well,  yes,  we  know  as  well  as  we  can  know  anything  that 
is  to  come  during  the  day,  that  we  wouldn’t  need  it  all  day.  Well, 
there  have  been  times,  especialty  during  this  3’ear ; we  have  used 
the  steam  probably  more  this  year  than  for  a number  of  }’ears  past. 
We  have  hardly  put  the  water-wheel  on  at  all ; sometimes  scarcely 
drawn  wrater  enough  in  the  morning  to  do  the  pulling  at  times  this 
year.” 

Now,  I do  not  know  how  there  could  be  a more  clear  and 
explicit  statement  by  a witness  of  large  experience. 

Mr.  Butler.  As  book-keeper  ? 

Mr.  Shattuck.  Manager  of  the  mill,  born  and  brought 
up  in  a mill  as  a hand  in  it,  and  manager  when  the  superin- 
tendent is  away.  This  man  states  it  fully,  and  I don’t  care 
to  argue  it,  because  it  is  so  clearly  reasonable  and  fair,  and 
it  is  practically  Mr.  Farrington’s  evidence  also. 

I now  come  back  to  the  question  from  which  I was  di- 
verted. Say  that  twenty  horse-power  must  be  furnished  when- 
ever there  is  any  deficiency  of  the  water,  so  that  we  are 
obliged  to  furnish  steam  at  all  for  any  part  of  the  day,  and 


Argument  of  George  O.  Shattuck. 


1001 


I ask  again,  What  is  steam  worth?  There  is  a legal  princi- 
ple, familiar  to  the  chairman  of  this  commission,  which  throws 
light  upon  this  question.  Suppose  the  city  had  taken  a 
wagon  from  my  clients  in  this  case,  converted  it,  and  a suit 
was  brought  for  the  value  of  that  wagon,  and  we  should  put 
in  evidence  of  the  market  price,  it  would  not  control  that 
evidence  if  the  other  side  should  come  up  and  show  that  by 
going  to  a particular  place  and  buying  the  lumber,  and  get- 
ting this  man  to  make  it  and  another  man  to  paint  it,  we 
could  furnish  such  a wagon  as  that  for  a lower  price,  because 
the  good  sense  of  the  courts  has  determined,  and  it  has  been 
the  rule  of  law  for  a century,  that,  on  the  whole,  the  best 
test  of  value  is  the  market  value  ; and  the  court  would  in- 
struct the  jury  in  the  case  of  the  wagon  that  it  is  the  market 
value,  the  price  the  minds  of  men  generally  meet  on,  which 
is  to  be  paid,  and  not  what  one,  who  may  be  a little  sharper 
than  anybody  else,  or  more  economical,  or  more  vigilant  in 
his  business,  can  construct  it  for.  Upon  the  same  principle, 
in  this  case,  when  the  question  is,  What  is  it  worth  to  furnish 
steam-power  as  an  auxiliary  ? the  best  evidence  is  what  peo- 
ple are  willing  to  pay  for  it.  Usually  it  is  sold  to  tenants 
by  parties  who  furnish  it  with  the  view  to  securing  the  rent 
of  the  premises  that  are  occupied,  so  that  it  is  furnished  at  a 
low  rate.  The  testimony  of  Mr.  Frizell  is,  that  where  you 
are  furnishing  a margin  of  steam-power,  as  in  this  case,  of  a 
small  amount,  that  $150  a year  for  each  horse-power  is  a fair  * 
price  for  it,  and  that  it  is  sold  here  in  Boston  where  coal  is 
cheaper  than  it  is  in  Lowell,  from  $150  to  $200  ; and  that  is 
also  the  testimony  of  other  parties.  In  Lowell  it  is  sold 
from  $100  to  $125  per  horse-power,  not  as  a margin,  as  I 
understand  it,  in  any  case,  but  simply  as  a fixed  amount 
where  it  is  to  be  furnished  regularly.  I shall  assume,  until 
there  is  evidence  to  the  contrary,  that  $150  is  not  far  out  of 
the  way ; but  you  know  this,  gentlemen,  better  than  I do, 
and  as  well  as  any  of  the  witnesses.  It  is  useless,  before 
you,  gentlemen,  to  discuss  this  question ; but  there  are  one 
or  two  considerations  which  I desire  to  call  to  your  atten- 
tion. 

In  the  first  place,  it  has  been  urged  here  that  we  are  not 
entitled  to  any  profit  on  this  steam.  What  is  a profit?  It 
simply  represents  a fair  income  of  the  capital  invested  for 
the  purpose  of  furnishing  steam.  If  we  put  in  a steam-en- 
gine and  allow  for  depreciation,  then  the  profit  represents 
the  interest,  that  is  all,  larger  or  smaller,  according  to  the 
risk  involved.  For  a steam-engine  it  should  be  a pretty 
high  rate  of  interest, — not  twenty  per  cent.,  which  my  brother 
Child  suggested,  — but  a fair  rate  of  interest.  We  will 


1002 


Argument  of  George  O.  Shattuck. 


take  half,  compromise  on  half  even  for  a steam-engine ; 
hut  there  is  some  profit  or  interest  to  be  allowed  on 
this  business  that  we  must  do  in  furnishing  steam,  which  we 
don’t  care  to  embark  in,  but  are  compelled  to  embark  in, 
and  therefore  we  are  entitled  to  fair  interest. 

Mr.  Butler.  After  we  buy  the  engine  for  you  and  pay 
for  it  and  fix  it,  do  you  want  us  to  pay  any  interest  on  that  ? 

Mr.  Shattuck.  That  involves  the  whole  question.  We 
are  trying  to  find  out  what  capacity  ought  to  be  put  in.  We 
have  to  pay  out  the  money  to  begin  with ; we  must  pay  out 
our  money ; we  must  lose  the  interest  on  that  money ; we 
must  invest  in  coal,  in  men,  in  everything  else.  Of  course 
the  amount  which  we  shall  ask  for  from  the  city  is  enough  to 
cover  all  those  sums.  We  don’t  ask  for  anything  more  than 
that. 

Mr.  Butler.  If  it  will  not  interrupt  you,  I would  like  to 
ask  you  to  take  it  in  the  case  of  the  Sterling  mills.  What  is 
your  claim?  What  do  you  think  it  is? 

Mr.  Shattuck.  I will  come  to  that.  I am  stating  the 
principles  and  the  evidence.  You  will  have  it  before  we  get 
through,  General.  I am  discussing  now  the  question  of  the 
cost  of  steam-power.  They  say  there  is  no  profit  to  be  fur- 
nished ; it  is  to  be  furnished  without  any  profit. 

In  the  next  place,  to  contradict  this  evidence  of  the  market 
value  of  power  and  what  it  costs,  they  bring  in  here  the 
general  chief  manager  of  the  Wamesit  Power  Company,  who 
sells  water  with  a small  margin  of  steam  for  $75  a horse- 
power, and  a large  interest  on  the  land  and  buildings  besides. 
Now  I always  supposed  that  steam-power  was  worth  twice 
as  much  as  horse-power.  If  they  get  $75  per  horse-power  out 
of  the  whole,  what  ought  to  go  for  water  and  what  ought  to 
go  for  steam?  I don’t  think  you  will  find  that  the  Wamesit 
Power  Company  is  furnishing  steam  at  a much  less  rate  than 
we  contend  for.  Mr.  Farrington,  who  is,  it  must  be  borne 
in  mind,  constantly  in  litigation  with  our  clients  here,  and 
who  seems  to  believe  that  they  have  been  stealing  an  excess 
of  water  for  years,  comes  here  with  that  natural  prejudice 
against  wrong-doers  which  we  should  expect  under  the  cir- 
cumstances. His  testimony,  in  the  re-direct  examination  by 
General  Butler,  is  much  in  conflict  with  his  direct  testimony 
and  that  given  on  cross-examination.  It  will  be  for  you  to 
read  it  over  and  see ; but  it  is  a little  singular,  I submit,  that 
Mr.  Farrington  should  find  out  that  his  steam-power  costs 
him  exactly  what  he  is  selling  his  horse-power  with  a margin 
of  steam  for,  the  exact  figure  ; that  he  should  sit  down  and 
make  an  independent  calculation  of  the  cost  of  steam,  and 
find  a fair  value  for  us,  is  exactly  what  they  are  selling  this 


Argument  of  George  O.  Shattuck. 


1003 


water  and  steam-power  for.  It  confirms  what  my  brother 
Storey  on  cross-examination  seems  to  have  suggested,  that 
he  must  have  taken  the  $75,  and  then  made  his  figures 
to  suit  the  amount.  Now,  let  us  see  how  he  makes  up  his  $75. 
In  the  first  place,  how  much  coal  does  he  allow  for?  Three 
pounds  per  hour  for  each  horse-power.  Now  that  is  all  very 
well  theoretically.  You  will  see  engines  advertised  to  furnish 
in  small  amounts  horse-power  for  three  pounds  of  coal  per 
hour,  and  by  measuring  every  ounce  of  coal  for  a day  you 
may  get  the  power  at  tha^t  rate  ; but  there  isn’t  a manufactory 
in  the  Commonwealth  who  has  the  experience  of  a month  in 
such  matters  who  doesn’t  know  that  steam-power,  as  you 
use  it  in  mills,  with  engines  as  they  go,  in  small  quantities, 
takes  from  five  to  six  pounds  of  coals  per  hour. 

Mr.  Butler.  I don’t  see  that  the  hour  has  anything  to  do 
with  it.  In  making  your  fire  in  the  morning  you  could  run 
as  cheap  all  day. 

Mr.  Shattuck.  I am  coming  to  that  in  a minute.  Now 
how  much  coal  does  he  allow  us  for  a year  ? To  come  with- 
in his  $75  as  Brother  Storey  suggests,  he  must  get  his  coal 
down  low  enough ; and  he  allows  us  ninety  tons  for  a year 
of  313  days.  Now  Mr.  Stott  says  it  takes  about  a ton  of 
coal  a day  to  run  their  engine  for  almost  any  margin  which 
they  are  required  to  use  to  supplement  their  water,  which 
would  be  over  three  times  as  much  as  Mr.  Farrington  allows 
in  his  estimate,  or  about  three  and  a half  times,  to  be  more 
exact.  Then,  again,  I do  not  care  to  go  over  the  testimony 
which  has  been  introduced  in  the  other  cases.  Take  the 
estimate  of  steam-power  by  Mr.  Holmes  made  in  the  Talbot 
case,  the  estimate  of  Mr.  Bacon  in  the  Saxonville  case,  who 
makes  it  for  a very  large  amount  of  steam-power  (and  this 
evidence  was  not  contradicted  in  either  of  these  cases),  and 
you  are  bound,  if  you  decide  these  cases  by  the  evidence,  to 
decide  them  upon  the  theory  that  steam-power  costs  from 
$125  to  $150  a horse-power.  Yet  the  city  comes  in  here, 
with  Mr.  Farrington,  the  employe  of  the  Wamesit  Com- 
pany, the  natural  enemy  of  all  our  clients,  who  fixes  it  at  $75 
per  horse-power. 

Well,  then  they  tell  us,  or  Mr.  Farrington  does,  that  we 
must  use  our  exhaust  steam ; and  under  some  circumstances, 
and  in  some  mills,  I do  not  doubt  that  they  do  use  exhaust 
steam  to  advantage.  Our  witness  says  they  can  use  it  for 
certain  kinds  of  coloring,  but  in  our  mills  where  they  use 
the  scarlet  dye  it  is  impossible  to  use  the  exhaust  steam. 
They  have  tried  it  and  abandoned  it ; and  so  also  for  wash- 
ing wool  and  for  heating  purposes.  I do  not  understand 
what  Mr.  Farrington  means  by  two  pounds  back-pressure, 


1004 


Argument  of  George  O.  Shattuck. 


but  they  require  thirty  pounds  pressure  for  heat,  wool-wash- 
ing and  dyeing,  and  when  you  have  that  back-pressure  on  an 
engine  you  will  see  how  that  practically  reduces  the  power. 
They  don’t  use  exhaust  steam  in  the  Stott  mills  ; they  find  it 
cheaper  not  to  do  so. 

Mr.  Butler.  Won’t  you  read  Mr.  Mills’s  testimony? 
I don’t  want  you  to  bear  down  too  hard  on  Mr.  Far- 
rington. 

Mr.  Shattuck.  I am  very  happy  to  read  it : — 

“ Q.  Suppose  }Tou  confine  yourself  to  my  question,  and  leave 
other  matters  out : we  shall  get  along  better,  I think.  I want  to 
get  your  judgment.  My  question  is  this : What,  in  your  judg- 
ment, from  your  calculations,  does  it  cost  a year  to  make  a horse- 
power of  steam, — the  engine  being  already  prepared,  a portion  of 
the  boilers  being  heated,  and  an  engineer  and  fireman  to  attend  to 
a portion  of  the  boilers  ? 

“ A.  I haven’t  the  calculation  here;  but,  from  what  data  I 
have  here,  I conclude  it  would  be  not  far  from  sixty  dollars  per 
annum. 

“ Q.  How  many  pounds  of  coal  per  day  per  horse-power? 

UA.  I haven’t  got  all  my  data  here  for  the  calculation,  but  this 
will  give  you  some  idea. 

“ Q.  My  question  was  a very  distinct  one,  Mr.  Mills : How 
much  coal  it  would  take  per  day,  or  any  other  time,  per  horse- 
power? 

“A.  When  their  engines  are  in  good  condition,  they  use  about 
three  pounds  of  coal  per  hour  per  horse-power,  at  about  seven 
dollars  a ton. 

“ Q.  Is  that  a day  of  ten,  twelve,  or  fifteen  hours? 

“ A.  Ten  hours. 

“ Q.  Thirty  pounds  a day,  three  hundred  days  a year,  would 
make  how  much? 

“A.  Nine  thousand  pounds;  at  seven  dollars  per  ton,  that 
would  be  thirty  dollars  for  coal.  I think  that  is  about  as  low  as 
they  get  it. 

“ Q.  Now,  then,  how  much  for  oil? 

“A.  I cannot  tell.  I haven’t  got  any  figures  here. 

“ Q • What  other  items  did  you  put  in,  sir? 

“A.  The  engineer  and  fireman. 

“ Q.  How  much  do  you  make  a day  for  them? 

“A.  For  a hundred  horse-power  engine,  I suppose  it  would  be 
about  fifteen  dollars  a day. 

“ Q • Would  it  cost  any  more  for  a thousand  horse-power  en- 
gine than  it  would  for  an  engine  of  a hundred  horse-power? 
Wouldn’t  an  engineer  tend  one  as  well  as  the  other,  if  it  was  a 
good  engine? 

“A.  You  want  a much  better  engineer. 

“ Q.  A competent  engineer  could  tend  one  as  well  as  the 
other  ? 

“A.  Yes,  sir;  what  I intended  to  say  was,  fifteen  dollars  per 


Argument  of  George  O.  Shattuck. 


1005 


horse-power  per  year.  That  is,  fifteen  hundred  dollars  per  year 
for  a hundred  horse-power  engine. 

“ Q.  That  would  be  five  dollars  per  day  for  the  two? 

“A.  Yes,  sir. 

“ Q.  What  else? 

“ A.  There  would  be  the  depreciation  of  the  engine  from  the 
running,  and  the  wear  of  the  boiler. 

“ Q.  Now,  as  an  engineer,  I will  put  you  this  question  : Which 
do  you  think  would  depreciate  the  most,  — an  engine  standing  still 
or  running? 

“A.  There  is  more  wear  running  than  standing  still. 

u Q.  I know  there  is  more  wear ; but  which  would  depreciate 
the  most  in  your  judgment,  — an  engine  standing  still  three  years 
or  running  three  years? 

UA.  An  engine  running. 

“ Q.  How  much? 

“ A . I cannot  tell  you. 

“ Q.  Now,  will  you  tell  me  whether  this  engine  is  used  most  by 
the  Pacific  Mills  when  the  water  is  too  high  or  too  low  ? 

“ A.  When  it  is  too  high  ; that  is,  when  it  is  too  high  below  the 
mills  ; when  the  fall  is  the  least. 

“ Q.  When  it  is  too  high  below  the  mills,  it  is  generally  too  high 
above  them,  is  it  not? 

“A.  No,  sir;  the  water  is  kept  at  a constant  height  in  the 
canal. 

“ Q.  No  ; the  water  in  the  river  is  higher  when  there  is  a great 
flow  of  w’ater  ? 

“ A . Yes,  sir. 

“ Q.  (By  Mr.  Merwin.)  Your  estimate  assumes  that  the  steam- 
engine  is  already  put  in,  with  all  the  appliances? 

“A.  No  ; there  is  no  assumption  of  anything.  The  question  is, 
how  much  this  twelve  dollars  a day  would  amount  to  per  horse- 
power per  year. 

“ Q.  And  you  say  it  is  equivalent  to  sixtjr  dollars  a year  on  the 
shaft,  and  about  forty-five  dollars  indicator  power? 

“ A . Yes,  sir. 

“Commissioner  Francis  (to  Mr.  Storrow).  This  is  not  in- 
tended to  be  the  cost  of  a steam-engine  ? 

“ Mr.  Storrow.  No,  sir ; it  is  intended  to  show  that  the  cbst 
of  steam-power  is  above  that ; that  a man  will  pay  that  for  water- 
power when  he  has  a steam-engine  in.” 

That  is  the  exact  question ; and  they  say  if  a man  has  his 
steam-engine  in  and  has  his  machinery  and  everything  else, 
fireman,  etc.,  that  they  would  rather  pay  $60  a year  for 
water  than  run  that  engine,  and  that  too  when  they  have  an 
engine  of  a thousand  horse-power.  Now,  if  there  is  any 
other  piece  of  testimony,  I shall  be  much  obliged  to  you  if 
you  will  call  my  attention  to  it. 

Mr.  Butler.  I don’t  think  of  any  other  piece  of 
testimony. 


1006 


Argument  of  George  O.  Shattuck. 


Mr.  Shattuck.  Now,  I say  that  we  are  entitled  to  each 
of  these  mills,  to  furnish  twenty  horse-power  for  nine  months 
at  $150  per  horse-power,  which  is  equivalent  to  $2,250.  I 
wish  to  have  the  commissioners  understand  that  $150  a horse- 
power is  the  fair  market  value  of  a margin  of  steam  ; and 
taking  the  price  at  which  the  Essex  Company  sell  their  water 
as  the  value  of  the  water,  the  Wamesit  Power  Company  gets 
to-day  $150  for  every  horse-power  of  auxiliary  steam  that 
they  furnish.  Taking  the  market  value  of  water  anywhere, 
and  take  the  testimony  of  Mr.  McDaniels,  to  show  how 
much  of  water  and  how  much  of  steam  they  furnish  in  a year, 
and  you  cannot  escape  the  conclusion  that  they  get  fully 
$150  for  it,  the  steam-power.  But  the  commissioners  know 
better  than  any  of  these  witnesses  what  is  a fair  allowance 
for  this  steam-power,  and  whatever  is  allowed  by  them  we 
must  accept,  and  shall  do  it  cheerfully  ; but  upon  the  evidence 
$150  per  horse-power  is  not  too  much.  If  we  have  $2,250 
a year,  we  want  a fund  which  will  secure  us  that.  At  what 
rate  shall  we  have  it  ? Make  such  deductions  as  you  think 
proper.  I put  the  $150  as  what  seemed  to  be  the  fairest 
upon  the  evidence.  If  a deduction  is  to  be  made  from  that, 
you  will  make  it.  We  want  a fund  as  safe  as  the  guaranty 
of  the  City  of  Boston.  We  want  a fund  secured  for  all 
time,  or,  if  my  brother  Child  prefers  it,  as  long  as  the  mills 
are  to  run,  wrhich  is  an  indefinite  period  and  which  is  practi- 
cally for  all  time.  I have  no  doubt  any  fund  which  these 
parties  have  will  be  lost  by  bad  investments  before  that  time. 
But  we  want  a fund,  I say,  as  safe  as  the  guaranty  of  the 
City  of  Boston,  and  five  per  cent,  is  all  we  can  hope  to 
realize  from  it  by  any  investment.  This  rate  was  suggested 
by  the  counsel  on  the  Talbot  dam,  and  I don’t  recollect  that 
there  was  any  objection  made  to  it.  There  was  a suggestion 
however,  — my  friend  suggested  twenty  per  cent.,  and  if  that 
is  a fair  rate  we  ought  to  have  twenty  per  cent.  ; but  by  this 
you  are  not  to  understand  that  my  clients  pay  any  such 
rates  as  that,  or  that  they  ever  expect  to  get  such  rates. 

The  fund  required  at  five  per  cent,  would  give  us  on  each  of 
those  mills  $45,000.  It  will  be  suggested  that  is  a large  sum 
on  those  mills  ; but  I say  it  is  not  an  unreasonable  sum.  Here 
were  two  mills  running  and  doing  their  business  with  water ; 
the  mills  were  constructed  and  adjusted  with  reference  to  that 
supply  of  water ; the  margin  of  profit  in  this  manufacturing 
is,  and  in  future  years  is  likely  to  be,  small ; the  introduction 
of  this  element  of  expense  into  that  mill  changes  its  whole 
character.  If  that  mill  were  to  be  sold  to-morrow,  any  man 
would  naturally  say,  f'  You  must  have  a steam  engineer  and 
a fireman,  and  the  risk  of  fire  and  all  the  inconvenience  at- 


Argument  of  George  O.  Shattuck. 


1007 


tending  it,  and  the  cost  of  coal  and  fuel,  and  we  will  not  buy 
it.”  It  is  a serious,  almost  fatal  blow  to  these  mills  to  be 
obliged  to  put  in  this  costly  and  inconvenient  instrument  to 
furnish  them  the  power  which  they  have  hitherto  had  with- 
out any  such  aid,  and  it  does  affect  the  character  of  that  mill 
to  a very  great  extent.  I have  not  gone  into  the  question  to 
cipher  up  here  how  much  the  building  would  cost,  and  the 
engine  would  cost,  etc. ; and  I think  it  is  safe  in  the  long  run, 
and  it  is  also  in  accordance  with  the  established  legal  princi- 
ples, to  rely  upon  the  market  price  of  power,  because  that 
shows  better  than  anything  else,  in  the  long  run,  what  it 
actually  costs. 

Now  as  to  the  Sterling  mill,  we  have  only  thirty-nine  years’ 
use  of  it,  and  I presume  that  we  are  entitled  to  somewhere 
about  ninety  per  cent,  of  the  total  damage. 

Mr.  Butler.  Oh,  no.  How  do  you  make  that  out? 

Mr.  Shattuck.  Well,  according  to  Mr.  Child  we  ought 
to  have  the  whole  of  it.  The  point  is  just  this.  I didn’t 
suppose  there  would  be  any  controversy  about  it.  The 
reversioner  is  entitled  to  a fund  which  after  accumulating  39 
years,  or  to  the  end  of  the  lease,  will  cover  his  damages.  I 
think  that  will  give  him  about  10  or  12  or  16  per  cent,  of  the 
whole  damage.  The  interest  would  be  compounded. 

Commissioner  Russell.  Five  per  cent. 

Mr.  Shattuck.  I leave  that  to  the  commissioners,  as  I do 
everything  else  — whatever  is  reasonable.  The  Belvidere, 
No.  1,  has  a cloud  on  its  title  yet,  and  I will  make  my  argu- 
ment on  that  when  I make  my  closing  remarks. 


1008 


Argument  of  Hon.  D.  S.  Richardson. 


ARGUMENT  OF  HON.  D.  S.  RICHARDSON. 

Gentlemen  : — When  I came  down  in  the  cars  this  morn- 
ing, a gentleman  whose  opinions  are  always  entitled  to 
respect,  who  is  disconnected  in  every  way  from  every  ques- 
tion involved  here,  remarked  that  probably  this  commission, 
without  the  labor  of  these  hearings,  would  have  gone  on  and 
found  out  the  facts  and  investigated  this  subject  and  come  to 
a just  and  satisfactory  conclusion.  This  remark  was  highly 
complimentary  to  the  weight  that  this  commission  carries, 
and  to  me  it  had  a suggestive  force  in  another  direction.  Had 
the  matters  been  submitted  to  the  commissioners  to  investi- 
gate and  settle,  it  would  have  involved  an  amount  of  labor 
and  inquiry  that  to  them  would  have  been  exceedingly  bur- 
densome, and  therefore  I suppose  that  there  could  have  been 
no  better  way  than  that  which  has  been  pursued  here,  that 
the  parties,  with  their  counsel,  should  place  before  you  all 
the  facts  which  they  could  gather  bearing  on  the  case,  and 
relieve  you  from  the  burden  of  hunting  up  facts.  But  here 
the  remark  of  the  gentleman  comes  in  with  suggestive  force 
to  me.  We  have  discharged  that  duty,  our  clients  and  their 
attorneys  ; we  have  furnished  to  you  all  the  evidence  on  either 
side  that  could  be  furnished,  and  all  that  remains  now  is  to 
see  what  weight  should  be  given  to  that  evidence,  and  what 
conclusions  should  be  arrived  at  therefrom ; and  there  the 
admonition  is  true,  that  I must  be  cautious  how  I assume  that 
I can  be  of  great  assistance  to  gentlemen  who  are,  from  the 
occupations  and  experiences  of  their  lives,  much  more  skilled 
in  most  of  the  questions  that  arise  here  than  any  lawyers 
could  be.  I don’t  therefore  propose  to  go  over  again  with 
any  substantial  part  of  the  great  mass  of  evidence  that  has 
been  put  in  here  and  has  been  discussed,  from  different  stand- 
points, by  so  able  counsel  on  both  sides. 

There  are  two  classes  of  evidence  which  have  been  sub- 
mitted to  you  for  your  guidance  ; one  is  that  which  is  derived 
mainly  from  science  and  skill,  best  understood  by  scientific 
men ; the  other  is  that  which  is  derived  from  observation, 
which  is  common  to  everybody,  and  which  every  well-bal- 
anced mind  can  come  to  some  conclusions  from.  I don’t 
propose  to  touch  to  any  extent  upon  much  of  the  scientific 
testimony,  which  furnishes,  from  short  periods  of  time,  con- 
clusions for  long  periods  of  time.  To  my  heart’s  content  I 
have  read  and  re-read  it,  and  the  conclusions  I might  come 


Argument  of  Hon.  D.  S.  Kichardson. 


1009 


to,  looking  at  it  as  mere  matter  of  evidence,  have  not  in  each 
case,  under  apparently  similar  circumstances,  come  to  the 
same  results.  Therefore  I say  that  I don’t  confine  myself  to 
scientific  men,  who  have  furnished  limited  observations,  in 
some  cases  leading  to  conflicting  results.  Many  of  these 
measurements  may  be  exceedingly  valuable  in  the  line  of  their 
profession ; to  me,  as  counsel  in  aiding  you  in  coming  to  an 
award,  many  of  them  seem  of  no  substantial  value,  and  I 
don’t  believe  they  will  be  of  much  importance  to  you  when 
you  make  up  your  conclusions. 

The  questions  involved  here  are  questions  of  great  pecu- 
liarity. Ordinarily  in  litigations  where  you  sit  in  judgment 
upon  the  matters  before  you,  you  have  evidence  approaching 
very  near  to  demonstration ; you  have  evidence  approaching 
very  near  to  the  transactions  that  you  are  to  pass  upon.  In 
this  case  much  of  the  evidence  is  exceedingly  remote,  and 
your  results,  within  certain  limits,  are  to  be  inferential. 

Now,  I shall  deal  with  few  of  the  questions  of  law,  be- 
cause they  have  been  over  and  over  again  argued  by  both 
sides,  and  I don’t  believe  that  I could  add  anything  to  any  of 
these  questions,  nor  do  I believe  that  a good  many  of  them 
are  of  any  importance  at  this  stage  of  the  proceedings.  I 
do  not  propose  to  deal  with  the  scientific  evidence  in  detail, 
but  I shall  deal  with  that  general  evidence  which,  it  seems  to 
me,  after  all,  you  are  to  be  governed  by  in  coming  to  your 
results. 

By  a power  which  the  sovereignty  exercises,  and  which 
cannot  be  exercised  without  compensation  to  those  injured 
thereby,  this  Commonwealth  has  said  that  a stream  which 
otherwise  would  have  passed  through  a large  portion  of  the 
County  of  Middlesex,  which  for  years  has  passed  unin- 
terruptedly through  that  county,  upon  which  men  have 
settled,  upon  which  men  have  erected  their  dams  and  mills, 
the  water  of  which  they  have  converted  into  power,  and 
where  their  property  is  established  to  give  them  the  income, 
along  the  Sudbury  and  Concord  rivers  to  the  waters  of  the 
Merrimack,  — the  Commonwealth  has  said  that  these  indus- 
tries, established  over  years  of  time,  shall  be  broken  up, 
because  a higher  demand  for  that  water  is  established,  a 
justifiable  demand  to  take  it  for  other  and  different  purposes 
than  for  what  it  has  been  appropriated ; and  the  Common- 
wealth says,  what  it  is  obliged  to  say  by  the  common  com- 
pact under  which  we  live,  that  everybody  injured  by  that 
diversion  shall  be  paid.  And  in  this  connnection  I didn’t 
understand  the  discussion  of  Brother  Child  in  his  argument 
upon  the  doctrine  of  riparian  proprietor.  I don’t  think  it 
has  the  least  pertinency  to  these  cases.  It  is  certain  that 


1010  Argument  of  Hon.  D.  S.  Richardson. 


every  one  who  has  any  land  and  any  water  coming  from 
these  sources  to  that  land  which  he  has  or  can  utilize,  and 
which  gives  him  a value,  is  provided  for  in  the  exact  words 
of  the  statute,  and  no  technical  legal  discussion,  as  to 
whether  he  owns  as  riparian  proprietor  or  whether  another 
owner  on  the  other  side  might  prevent  the  diversion,  can 
come  in  here.  The  legislature  has  fixed  in  distinct  terms 
what  the  rights  are  which  may  be  taken,  and  have  deter- 
mined that  there  shall  be  damages  paid  therefor ; and  I call 
your  attention  to  the  case  in  3 Cushing,  107,  Parker  vs.  The 
Boston  and  Maine  Railroad,  where,  in  almost  similar  lan- 
guage, the  Court  have  defined  what  damages  may  be  re- 
covered. Under  the  language  provided  in  this  case,  every 
railroad  shall  be  liable  to  pay  all  damages  which  shall  be 
occasioned  for  laying  out  and  making  and  maintaining  its 
railroad.  In  these  cases  the  provision  is,  that  they  shall  pay 
all  damages  that  shall  be  sustained  by  persons  in  their  prop- 
erty. Now,  in  the  case  of  the  3d  Cushing,  a wrell  on  a 
neighboring  man’s  land  was  dried  up  by  reason  of  the  con- 
struction of  a railroad  near,  and  the  Court  say  substantially, 
whatever  the  rights  at  common  law  may  be  to  underground 
streams,  that,  when  the  legislature  said  there  should  be  com- 
pensations for  persons  injured,  they  meant  that  every  injury 
done  to  their  property,  not  only  water  above  ground  taken 
and  appropriated  to  mills,  but  water  under  ground,  that  no- 
body knows  where  it  comes  from  or  where  it  is  going  to, 
and  in  that  case  damages  were  allowed  for  drying  up  a well 
on  a lot  adjoining  the  railroad  location.  So  that  here  the 
statute  meant  to  give  everybody  having  property  that  had  a 
value,  irrespective  of  any  learned  discussions  of  riparian 
rights,  a compensation  for  its  injury. 

Now,  in  these  cases  the  water  is  taken  at  a point  a great 
many  miles  from  the  place  where  the  injury  is  done  by  keep- 
ing it  away,  and  there  can  be  no  certain  evidence  that  will 
measure  the  injury,  but  I think  there  is  evidence  so  near 
that  you  cannot  err  much  in  dollars  and  cents  by  regarding 
it.  I think  if  in  fixing  a measure  of  damages  for  all  time 
you  resort  to  evidence  of  occasional  measurements,  of  occa- 
sional observations  over  short  periods  of  time,  and  rely 
much  on  them  alone,  you  might  be  led  to  wrong  conclusions. 
But  when  you  take  the  one  great  established  rule  that  has 
been  found  correctly  all  over  our  rain-bearing  territories, 
to  give  over  a period  of  years  substantially  correct  results, 
you  have  got  a rule  fixed  and  permanent,  and  a very  sure 
guide  to  you,  and  that  rule  is,  comparing  the  water-sheds 
and  the  rainfalls  at  the  sources  and  supplies  of  the  rivers. 

Now,  my  friend,  Mr.  Shattuck,  said  he  was  contented  with 


Argument  of  Hon.  D.  S.  Richardson. 


1011 


taking  as  the  relative  proportion  which  the  waters 
of  the  Sudbury  river  bears  to  that  of  the  Concord  river. 
I think  it  exceeds  that.  It  is  perfectly  certain,  upon  any 
calculation  of  the  proportion  of  the  Sudbury  river  to  the 
whole  amount  in  the  Concord,  you  have  a little  over  one- 
fifth  supplied  by  the  Sudbury  river.  That  water  and  the 
Concord  has  got  to  supply,  before  it  gets  to  the  Wamesit 
dam,  a considerable  proportion  of  its  amount  for  evapora- 
tion, and  to  fill  the  territory  through  which  it  passes.  Now, 
if  over  one-fifth  of  the  water  is  proved  by  the  water-shed  and 
rainfall  to  have  come  from  the  Sudbury  river,  it  don’t  lessen 
one  bit,  if  you  take  it  all  away,  the  evaporation  and  land 
supply  that  you  have  got  to  have  in  what  remains.  That 
has  been  said  by  one  of  the  last  witnesses  to  be  quite  a con- 
siderable item.  So  that  if  you  reckon  it  only  it  seems 
to  me  you  come  under  rather  than  over  the  proportion 
of  water  that  you  have  taken  away  from  Wamesit  dam. 
You  take  over  one-fifth,  but  you  also  require  the  water- 
owners  to  supply  just  as  much  evaporation  and  just  as  much 
supply  to  the  lands  with  what  is  left  as  you  did  before,  so 
that  the  Sudbury  water  would  have  all  gone  to  your  dams 
had  it  not  been  taken  away. 

Assuming,  then,  that  it  is  over  one-fifth  that  is  taken,  let 
us  see,  so  far  as  my  clients  are  concerned,  the  situation  of 
their  property,  and  the  injury  it  does  to  them. 

Now,  you  have  got  in  these  cases,  in  some  manner,  to  fix 
a quantity  of  water  at  the  Wamesit  dam,  which  you  are  not 
called  upon  to  fix  at  any  other  place  on  the  river.  The 
rights  of  these  parties  are  such  that  you  cannot  reach  them 
unless  you  estimate  certain  quantities  of  water  at  certain 
times  in  the  river  at  that  dam.  Well,  now,  how  can  you 
estimate  it?  You  have  got  six  weeks  of  measurements  of 
water  by  skillfulness,  in  the  dryest  time  for  twenty  years, 
from  which  to  draw  conclusions.  You  have  got  observa- 
tions made  at  sundry  times,  and  under  peculiar  circum- 
stances at  certain  seasons  of  the  year ; you  have  got  the 
quantity  of  water  that  starts  from  its  sources  ; you  have  got 
the  water-shed  and  rainfall  that  supply  them : all  these 
things  you  are  to  take  into  consideration.  There  is  also  a 
practical  piece  of  evidence  here  of  great  importance,  unless 
some  of  these  things  militate  against  and  destroy  it. 

As  long  ago  as  15  years,  this  canal  had  but  little  power 
used  upon  it.  The  time  having  arrived  when  the  water- 
power was  going  to  be  useful  and  valuable,  the  owners 
divided  up  that  power,  which  could  not  be  used  together, 
into  portions,  and  sold  it  for  use.  What  was  the  amount 
arrived  at  that  that  river  would  enable  manufacturers  or 


1012  Argument  of  Hon.  D.  S.  Richardson. 

those  who  desired  to  use  water-power,  to  obtain  during  the 
year?  288  feet  was  the  amount  that  the  owner  established 
as  the  substantial  supply  of  the  river,  and  he  has  cut  that  up 
so  that  where  there  was  no  building,  no  wheel  and  machinery 
then,  it  has  been  parcelled  out  and  used  on  the  basis  of  that 
quantity  for  16  years.  They  planned  that  that  was  substan- 
tially the  supply  there.  I say,  that  in  the  absence  of  any 
evidence  absolutely  controlling  it,  it  is  strong  proof  to  your 
minds  that  the  division  made  16  years  ago  is  substantially 
correct,  and  that  the  supply  during,  at  least,  most  of  the 
year  will  be  that  amount.  I admit  that  you  have  a right, 
and  perhaps  it  is  your  duty,  to  qualify  all  such  conclusions 
by  any  measurements  of  a shorter  period  of  time,  and  the 
circumstances  under  which  they  were  made,  giving  more  or 
less  weight  to  them.  But  supposing  we  take  the  measure- 
ments made  during  the  summer,  we  find  that  the  lowest, 
possibly  with  one  or  two  exceptions  which  amount  to  noth- 
ing, that  is,  the  minimum  on  which  you  can  always  calculate, 
is  220  cubic  feet  per  second,  and  nobody  has  estimated  that, 
at  any  time  when  it  is  of  the  least  consequence  to  the  owner, 
it  has  ever  fell  below  that.  When  we  have  288  cubic  feet 
supplied  to  us  we  lose  nothing  by  what  is  taken  away.  If 
you  give  any  importance  to  the  measurements  made  during 
this  dry  season,  that  the  lowest  point  would  be  220,  I shall 
not  undertake  to  show  you  where  you  would  arrive  at 
between  these  points  as  the  average  supply,  because  you  will 
be  better  able  to  do  it  than  I shall ; but  somewhere  between 
288  as  the  highest  and  220  the  lowest  our  water  is,  beyond 
all  question,  supplied  to  us  during  the  whole  year,  and  this 
is  applied  to  periods  before  the  diversion  of  the  Sudbury. 
Now,  if  you  take  288  cubic  feet  a second  for  the  whole  year, 
and  take  the  diversions  made  of  the  water,  and  could 
establish  that  for  the  whole  year,  the  per  cent,  which  I 
agree  in  adopting  with  my  learned  friend  here  as  the  correct 
one,  then  if  you  find  no  more  than  the  288  cubic  feet,  you 
would  have  no  difficulty  in  coming  to  a conclusion  in  these 
cases  by  actual  mathematical  calculation;  because,  if  there 
were  288  cubic  feet  and  no  more  during  the  year,  and  the 
Sudbury  river  takes  22  per  cent,  of  that,  then  the  result  is 
that  we  have  lost  substantially,  Mr.  Wood  5.28  horse-power, 
Faulkner  11  horse-power,  and  the  Bleachery  15.44  horse- 
power, if  I have  made  my  calculation  right.  You  will  know 
if  I have  made  any  error,  because  you  see  the  way  I am 
endeavoring  to  illustrate  my  position  here. 

Now,  I say,  taking  the  evidence  as  it  is,  somewhere  very 
near  the  whole  amount  provided  for  in  the  river  runs  there 
almost  all  the  year.  It  is  conceded  that  for  three  months  so 


Argument  of  Hon.  D.  S.  Richardson. 


1013 


much  more  runs  over  the  dam  that  we  mainly  during  that 
period  of  time  have  our  full  amount.  For  nine  months  in 
the  year  the  water  does  not  run  over  the  dam,  and  for  that 
nine  months  the  Sudbury  river  has  taken  from  us  one-fifth 
plus  2,  A20  of  our  power,  deducting  therefrom  so  much  as 
you  shall  find  the  water  for  any  period  of  time  fall  below  the 
288  cubic  feet  a second.  Well,  now,  I don’t  know  what  rule 
I can  point  out  to  you  that  has  not  been  pointed  out  over 
and  over  again  by  the  several  learned  counsel  who  have 
spoken  in  these  cases.  I can  apply  the  rule,  assuming  cer- 
tain conditions,  and  so  far  as  the  conditions  vary,  so  far  it 
will  change  your  results. 

Now  I will  take  first  Mr.  Faulkner’s  mill  — 

Mr.  Butler.  Before  you  go  from  that  I want  to  ask  you 
something.  I assume  that  you  will  agree  with  me  that  the 
rights  of  these  parties  are  to  be  calculated  according  to  their 
deeds,  without  any  deduction  being  made  in  favor  of  one  or 
in  favor  of  the  other  on  account  of  any  supposed  taking  of 
water  ? 

Mr.  Richardson.  Oh,  that  we  agree  to.  The  question 
has  always  come  up ; it  will  never  fail  to  come  up  in  the 
world  even  where  only  two  men  have  the  right  to  take  each  an 
equal  share  of  the  water,  because  water  cannot  be  divided  in 
its  use  equally.  I noticed,  in  looking  over  Mr.  Storrow’s 
account  of  the  difficulties  there  at  Lawrence  — the  pattern 
city  — with  pattern  water-power,  that  the  very  first  difficul- 
ties he  had  after  selling  out  definite  portions  out  of  a gross 
amount  of  water  were  that  disputes  began  to  ensue,  and  the 
owners  of  the  water-powers  found  difficulty  in  not  exceeding 
at  times  the  proportions  they  were  entitled  to  use. 

[. Adjourned  till  9.30  A . M.f  Friday .] 


1014  Argument  of  Hon.  D.  S.  Kichardson. 


Friday,  October  27,  1876. 

Argument  of  Hon.  D.  S.  Kichardson,  continued. 

Gentlemen  : — At  the  adjournment,  I was  about  placing 
before  you  some  figures  and  calculations  to  form  a starting- 
point  by  which  I might  argue  certain  propositions  in  this 
case.  It  is  quite  easy  to  argue  matters  generally,  to  es- 
tablish theories,  and  to  give  a direction  which  you  must  pur- 
sue to  arrive  at  certain  results.  But  in  these  cases,  while, 
as  counsel,  we  might  do  this,  still  the  more  general  we  make 
our  remarks  the  less  we  aid  you  in  the  duty  which  you  have 
to  perform.  You  will  be  obliged,  when  you  settle  these 
cases,  to  give  the  result  of  your  deliberations  in  exact 
figures,  representing  dollars  and  cents,  and  from  which 
there  is  to  be  no  escape  from  complete  accuracy.  Now,  in 
these  cases,  covering  such  a mass  of  testimony,  and  where 
there  are  such  different  views  of  different  witnesses,  and 
perhaps,  in  some  respects,  of  the  different  counsel  engaged 
in  them,  it  would  be  entirely  out  of  place  for  me  to  under- 
take to  say,  in  the  cases  which  I .represent,  that  just  such  a 
sum,  in  dollars  and  cents,  is  what  you  ought  to  pay  to  my 
clients,  because  you  will  be  obliged  not  only  to  make  up 
from  their  evidence  their  awards,  but  half  a dozen  or  a dozen 
other  awards  in  similar  cases ; and  all  those  awards  must  be 
made  up  by  a consideration  of  the  evidence  that  applies  to 
each  particular  case.  If  I should  undertake  to  say,  in  dol- 
lars and  cents,  just  how  much  I thought  was  actually  proved 
by  our  testimony,  I should  not,  perhaps,  be  leaving  it  to  you 
to  make  such  allowances  as  the  weight  of  testimony  appli- 
cable to,  and  put  in  in  the  other  cases,  would  require.  So  I 
propose  to  take  certain  facts  and  to  assume  certain  figures, 
which,  in  my  view  of  the  evidence,  are  clearly  established, 
and  then  from  that  stand-point  to  ask  you  to  consider  whether 
you  think  those  figures  will  bear  increasing  or  diminishing  in 
establishing  the  awards  in  our  cases. 

I stated  that  I thought  a fair  deduction  from  all  the  testi- 
mony established  the  fact  that  twenty-two  per  cent,  of  the 
waters  that  flowed  in  the  Concord  river  before  this  diversion 
came  from  the  Sudbury ■ river.  I have  made  my  calculations 
upon  that  basis.  They  would  vary  as  you  adopted  a less  or 
greater  ratio  supplied  by  that  river. 

As  to  my  three  clients,  then,  Mr.  Wood  owns  twelve  cubic 


Argument  of  Hon.  D.  S.  Richardson. 


1015 


feet,  which  substantially  gave  him  twenty-four  horse-power, 
and  at  twenty -two  per  cent,  that  would  be  5.28  horse- 
power. Mr.  Faulkner  has  twenty-five  cubic  feet, — fifty  horse- 
power ; the  ratio  taken  would  be  eleven  horse-power.  The 
Bleachery  has  thirty-six  cubic  feet,  — seventy-two  horse- 
power; the  ratio  taken  would  be  15.84-  horse-power.  Now, 
if  the  canal  supplied  uniformly  during  the  year  just  288 
cubic  feet,  you  would  settle  at  once  that  the  amount  of  loss 
was  for  the  year  just  what  ratio  you  should  establish  as  to 
the  water  taken  from  the  Sudbury  river  to  the  whole  amount 
of  water.  I assume  here  that  the  water  for  the  whole  year 
is  288  cubic  feet ; then,  one  element  more  being  fixed,  you 
have  an  easy  way  of  calculating  exactly  the  value  of  the 
water  taken.  Other  elements,  in  my  view,  will  increase  the 
damage,  but  that  will  be  one  step  in  your  progress. 

Now,  I assume,  upon  all  the  evidence,  that  the  power  to 
be  furnished  or  sold  there,  if  a man  had  it  to  deal  in  and  sell 
as  a power,  is  worth  $100  per  horse-power  per  year.  There 
is  considerable  evidence  in  the  case  bearing  upon  this  point, 
but  the  fair  weight  of  the  evidence,  it  seems  to  me,  cannot 
place  it  lower  than  $100  a horse-power  per  year.  The  Es- 
sex Company  at  first  sold  their  water-power  at  a very  much 
less  rate  than  the  amount  I have  named,  but  everybody 
knows  that  the  Essex  Company,  unless  they  could  have  sold 
their  water-power  and  established  industries  near  their  dam, 
had  a property  that  would  be  worth  nothing  to  them,  and 
they  could  have  afforded  to  give  away  their  water  rather 
than  not  have  had  it  go  into  the  market  and  bring  industries 
about  them.  Now  their  conduct  has  proved  this  to  be  true, 
because,  after  they  had  established  several  mills  and  sold 
them  water-power  at  a moderate  rate,  they  put  up,  as  Mr. 
Storrow  tells  you,  their  water-power  to  $75  a horse-power. 
My  friend,  Gen.  Butler,  shakes  his  head.  I may  have  mis- 
apprehended his  testimony. 

Mr.  Butler.  That  was  on  the  north  side. 

Mr.  Richardson.  I don’t  care  where  it  was.  On  page 
100  of  the  report,  Mr.  Storrow  says.  (I  will  read  the  ques- 
tion and  answer)  : — 

“ Q.  What  do  you  charge  and  receive  for  the  power  per  horse- 
power per  year  in  addition  to  the  rent  which  you  charge  and  re- 
ceive for  the  room  occupied  b}^  the  tenant? 

“ Mr.  Butler.  I object ; because  this  was  after  the  act  author- 
izing the  taking  of  the  water  was  passed. 

“ Q ■ My  question  was  what  the  Essex  Company  charge  and 
receive  for  the  power  per  horse-power  per  year  in  addition  to  the 
rent  which  they  charge  and  receive  for  the  room  occupied  by  the 
tenant? 


1016  Argument  of  Hon.  D.  S.  Richardson 


“ A.  We  charge  $75  per  year  for  horse-power,  for  the  right  to 
take  the  power  from  the  shaft  which  we  have  put  in  there,  exclu- 
sive of  the  room,  of  course.” 

So  that,  when  the  land  was  not  worth  $50  an  acre,  and  a 
dam,  canal  and  works  had  been  constructed,  involving 
capital  of  hundreds  of  thousands  of  dollars,  perhaps,  they 
wrere  glad  to  sell  their  water-power  at  a small  sum ; but  as 
soon  as  they  had  attracted  industries  there  they  raised  the 
price,  in  the  former  case  getting  the  benefit  by  the  increased 
value  of  their  land ; in  the  last  case  getting  some  benefit  in 
that  direction,  but  a fairer  value  for  the  water-power.  That 
is  the  lowest  estimate  of  any  value  that  I have  seen,  in  any 
of  the  evidence,  of  the  price  at  which  water-power  was  sold. 

Mr.  Butler.  If  it  will  not  interrupt  you,  I will  say  that 
the  difference,  as  I understand  it,  is  this.  I wish  to  call 
your  attention  to  it.  Where  they  have  sold  the  right  to  a 
man  to  take  so  much  power  and  apply  it  to  a wheel,  they 
have  sold  it,  uniformly,  on  the  south  side,  as  they  did  at 
first,  at  $20  a horse-power.  When  they  put  up  buildings, 
and  put  in  shafting  and  machinery,  they  then  rented  the 
effective  power  from  the  pulley  at  $75  a horse-power.  That 
is  all  the  difference  between  us. 

Mr.  Richardson.  Mr.  Storrow.  says:  "We  charge  $75 
per  year  per  horse-power  for  the  right  to  take  power  from 
the  shaft  which  we  have  put  in  there,  exclusive  of  the  room, 
of  course.” 

I suppose  that  implies  the  construction  of  the  wheel.  I 
suppose  it  implies  that  they  have  the  power  just  as  the  Wa- 
mesit  Power  Co.,  just  as  Mr.  Faulkner  has  it,  precisely ; and 
besides  they  have  it  to  sell  to  persons  who  are  going  to  buy 
land  in  addition  thereto,  and  make  profitable  that  which 
left  for  the  sale  of  the  water-power  would  be  worth  nothing. 

Then  we  will  take  the  evidence  that  was  put  in  for  your 
guidance  as  to  the  value  of  water-power  at  the  Wamesit 
dam.  That  you  will  have  to  consider  in  fixing  what  ought 
to  be  the  value  of  water-power.  Now,  so  far  as  the  Warne- 
sit  Power  Company  is  concerned  in  this  case,  their  offers 
ought  to  be  taken  with  a good  deal  of  caution.  I understand 
the  Wamesit  Power  Company  to  say  that  they  are  ready  to 
furnish  power  at  $75,  either  steam  or  water  power.  Now 
I say  that  the  evidence  from  that  company  should  be  taken 
with  some  degree  of  caution,  because  the  defendants  here 
claim,  and  have  claimed  to  you,  that  they  own  all  the  water- 
power except  two  cubic  feet  per  second  which  the  Wamesit 
Power  Company  talk  about  supplying  and  selling  at  $75  a 
horse-power.  The  offer  to  supply  at  a certain  price  was 


Argument  of  Hon.  D.  S.  Kichardson. 


1017 


ruled  out  as  a measure  of  value,  but  I understand  it  was 
ruled  that  the  fact  that  they  supply  power  at  that  rate  was  to 
be  considered  in  evidence  here.  Now,  they  have  68  cubic 
feet  of  water,  if  they  have  any.  They  let  246  horse-power, 
guaranteed  to  be  paid  for;  they  have  876  horse-power  in 
steam ; and  1 undertake  to  say,  that,  upon  all  the  evidence 
here,  they  cannot  create  and  let  the  steam-power  for  $75  a 
horse-power  without  losing  money.  If  it  is  so,  nobody’s 
experience  has  been  given  to  you  in  this  case  that  corre- 
sponds with  theirs.  They  guarantee  246  horse-powers  ; they 
have  136  water-powers  which  they  claim  to  use  to  answer  to 
that ; the  balance  they  must  supply  in  steam,  for  which  it  is 
claimed  they  have  complete  conveniences.  Now,  how  could 
it  be  that  they  let  their  steam-power  for  $75  a horse-power, 
if,  as  Mr.  Farrington  says,  $100,  substantially,  is  the  lowest 
sum  at  which  horse-power  is  let  by  others?  Mr.  Farrington, 
when  he  was  saying  that  power  could  be  furnished  for„$75 
by  the  Wamesit  Company,  said  that  he  knew  no  place  in 
the  City  of  Lowell  where  steam-power  was  furnished  short 
of  $100.  I will  tell  you,  gentlemen,  why  it  is.  It  is  on 
just  the  same  principle  that  the  Essex  Company  adopted 
when  they  had  land  worth  $50  an  acre,  and  no  more,  unless 
the  water-power  could  be  used  with  it.  If  they  could  sell  their 
water-power  for  ten  per  cent,  of  its  value,  they  could  make 
enough  out  of  the  sale  of  their  land  to  make  it  up.  And, 
gentlemen,  we  have  an  illustration  here.  Mr.  McDaniels 
says  that  they  have  forty  buildings,  speaking  roughly,  al- 
ready erected  and  owned  by  the  Wamesit  Power  Company, 
in  which  they  let  power,  in  and  about  those  premises.  Well, 
their  price  for  power  may  well  be  less  than  it  would  cost 
them,  for,  were  it  not  for  cheap  power,  what  would  be  the 
rent  of  those  forty  buildings  ? 

Let  us  take  an  example  that  they  have  given  us  in  their 
transactions  with  Mr.  Hiscox.  Let  us  see  whether  $75  a 
horse-power  is  not  a lower  price  than  they  would  charge 
anybody  else.  They  charged  him  for  a little  piece  of  land, 
one  hundred  feet  one  way  by  fifty  the  other,  as  smooth  as 
the  back  of  your  hand,  and  for  one  little  room,  with  no  ma- 
chinery, $100  a horse-power.  I submit  to  you,  gentlemen, 
that  when  they  fixed  $100  a year  as  the  rent  of  a horse- 
power to  Mr.  Hiscox,  who  agreed  to  build  his  own  building, 
it  was  a questionable  division  to  say  they  divided  that  into 
$25  for  a little  piece  of  land  of  that  size  and  one  room  be- 
sides, and  $75  for  the  horse-power. 

I say,  then,  that  the  whole  weight  of  the  testimony  is, 
that  the  lowest  possible  sum  that  you  could  fix,  if  you  were 
establishing  the  market  value  of  water-power,  would  be  $100 


1018  Argument  of  Hon.  D.  S.  Richardson. 


a horse-power.  I do  not  touch  upon  the  question  here 
whether  you  could  get  that  power.  I do  not  allude  here  to 
the  fact  that  it  is  claimed  that  there  is  other  power  there 
which  will  supply  that  at  that  sum.  At  this  stage  of  my 
argument,  I only  assume  that,  for  getting  at  certain  results 
in  dollars  and  cents,  as  to  the  damage  done  by  the  taking  of 
those  powers,  supposing  them  merely  articles  of  merchan- 
dise, not  applied  to  buildings  and  machinery.  At  $100  a 
horse-power  a year,  Mr.  Wood’s  power  would  be  worth  $528 
annually;  Mr.  Faulkner’s  would  be  worth  $1,100  annually, 
and  the  Bleachery  $1,584  annually.  Now  those  sums,  if 
these  men  were  in  the  traffic,  desirous  of  buying  or  selling, 
represent  what  that  number  of  horse-powers,  at  $100  per 
horse-power,  would  be  worth  every  year,  and  the  fair  dam- 
age would  be  the  annual  interest  on  a principal  which  would 
pay  those  respective  sums  every  year,  provided,  always,  that 
their  power  was  constant  for  the  whole  year.  It  is  plain 
enough,  upon  the  testimony  in  the  case,  that  it  is  not  con- 
stant, but  at  times  during  the  year  it  falls  short,  and  at  times 
it  is  enough  to  give  them  their  full  power. 

Now  the  evidence  is,  that  the  canal  has  capacity  enough  to 
carry  to  each  one  of  my  clients  the  quantity  of  water  they 
own,  when  it  exists  at  the  mouth  of  the  canal.  I lay  aside 
here,  as  I have  during  the  whole  case,  the  fact  that  in  the 
practical  use  of  the  water  they  have  had  disputes  as  to  the 
amount  they  ought  to  have,  and  the  water  lias  not  probably 
been  divided  with  very  great  exactness  as  to  their  rights ; 
but  I assume  that  that  is  all  to  be  laid  out  of  this  case,  be- 
cause, if  the  water  wTas  at  the  canal,  any  misuse  of  it  by 
those  below,  or  inequality  in  its  actual  use,  would  not  exempt 
the  City  of  Boston,  if  they  should  take  it  before  it  came  to 
such  misuse,  from  paying  therefor. 

Then,  I say,  some  portions  of  the  year,  you  will  find  from 
the  evidence  that  these  parties  will  obtain  all  they  are  en- 
titled to  by  their  grants.  For  how  large  a portion  of  the 
year?  There  is  a dispute  between  the  two  sides,  whether  it 
is  for  six  months  or  for  three  months  ; somewhere,  probably, 
between  those  two  periods  — you  will  fix  the  exact  time.  I as- 
sume in  these  calculations  that  our  testimony  is  controlling 
here,  that  for  three  months  in  the  year  water  runs  over  the 
dam  in  more  or  less  abundance,  and  for  the  rest  of  the  time 
it  does  not.  If  this  statement  is  substantially  correct,  then 
it  will  be,  that  for  three  months  in  the  year  they  take  no 
quantity  so  large  as  to  injure  us,  and  for  nine  months  they 
take  some  portion  of  our  water. 

At  this  point  I desire  to  submit  these  illustrations  as  ap- 
plied to  the  water  going  above  or  below  288  cubic  feet,  the 


Argument  of  Hon.  D.  S.  Richardson. 


1019 


quantity  which  gives  each  one  his  share.  It  is  testified,  from 
observations  made  for  a stated  period  lately,  as  I understand, 
that  at  the  lowest  possible  time  (with  an  occasional  extraor- 
dinary exception  that  is  of  no  consequence)  there  are  220 
cubic  feet  of  water  in  that  canal  during  twelve  hours  of  the 
clay.  That  is  to  say,  that  the  lowest  estimate,  making  all 
due  allowances  which  the  mill-owner  need  make,  is  220  feet 
per  second  during  working  hours.  For  how  long  a period 
that  will  last,  whether,  it  being  only  the  result  of  a little 
over  a month’s  investigation,  in  the  dryest  time  of  the  year, 
the  estimate  is  not  considerably  lower  than  it  ought  to  be, 
you  are  to  determine  from  the  evidence,  including  that  of  the 
water  supply  above  on  the  river.  Somewhere  above  that 
sum  there  would  be  to  us  a less  proportion  of  damage, 
varying  as  the  water  increased  up  to  288  cubic  feet.  But, 
gentlemen,  on  the  other  side,  you  are  to  look  at  this  consid- 
eration : that  when  the  water  of  the  Sudbury  and  Concord 
exceeds  288  cubic  feet  in  the  canal,  we  are  still  injured,  if 
twenty-two  per  cent,  is  taken  from  that,  and  that  I propose 
to  illustrate  in  this  manner  : 288  cubic  feet  per  second,  added 
to  81,  which  would  give  us  our  22  per  cent,  of  the  result 
substantially  and  lower  to  288,  would  make  869  cubic  feet 
per  second  in  the  canal.  Now,  when  the  water  stands  at 
369  cubic  feet,  which  is  over  700  horse-power,  the  City  of 
Boston  cannot  divert  two  cubic  feet  without  doing  some 
damage  to  our  rights.  I will  illustrate  it  in  this  way  : Sup- 
pose the  water  in  the  Concord  river  reduced  to  350  cubic 
feet  per  second,  that  is  700  horse-power.  Now,  let  the  City 
of  Boston  divert  its  22  per  cent,  of  that,  which  is  77  cubic 
feet,  and  you  have,  after  they  have  taken  that  portion  of  the 
water,  273  cubic  feet  only  in  the  canal.  We  had  to  start 
with  350  cubic  feet;  they  have  taken  77  feet,  and  have  left 
us  273  feet,  and  to  give  us  our  full  rights  we  must  have  288 
feet ; and  therefore,  with  that  diversion  of  water,  we  have 
lost  among  us  on  the  Wamesit  canal,  15  cubic  feet  of  water. 
I give  you  that  as  an  illustration,  that  when  there  is  288  feet 
less  in  the  canal  we  are  not  injured,  but  that  when  there  is 
enough  more  to  make  369  feet  the  city  cannot  take  it  in  the 
proportion  which  it  does  take  it  without  injuring  us  propor- 
tionally ; and  so  on  down  to  the  lowest  point  that  it  runs  in 
the  canal. 

The  City  of  Boston  is  taking,  when  the  quantity  that  both 
rivers  would  supply  is  as  high  as  369  feet,  every  day  it 
lowers,  a certain  proportion  from  us,  injuring  us.  When 
you  find  that  there  is  220  cubic  feet  of  water  in  the  canal  per 
second,  of  course  we  have  lost  our  proportion  of  the  sixty- 
eight  cubic  feet  which  is  not  furnished  by  nature  to  the 


1020  Argument  of  Hon.  D.  S.  Richardson. 


canal,  and,  therefore,  that  not  having  been  diverted  by  the 
city,  the  proportion  which  we  lose  is  less,  according  as  you 
establish  the  amount  of  the  flow;  and  so,  I say,  when  you 
find  that  there  is  288  cubic  feet,  that  is,  the  water  standing, 
for  instance,  nine  months  in  the  year  at  the  top  of  the  dam, 
furnishes  us  288  cubic  feet  per  second,  that  makes  our 
supply,  if  none  is  diverted  by  the  city.  When  you  find  that 
the  other  three  months  there  is  considerably  more  than  that, 
you  will  be  obliged  to  find  that  there  is  more  than  369  cubic 
feet  all  that  time  before  the  city  takes  the  Sudbury,  or  else 
we  are  injured  during  those  three  months.  And  so  I say 
that  there  will  be  injury  when  the  canal  for  both  rivers  is 
apparently  full. 

Mr.  Butler.  I don’t  understand  your  proposition.  We 
are  not  bound  to  compensate  you  when  you  get  the  288  feet. 

Mr.  Richardson.  No,  sir.  My  proposition  is,  that  it  is 
perfectly  clear,  that  if  there  is  220  cubic  feet  of  water  in  the 
canal  before  diversion,  we  are  not  entitled  to  compensation 
from  the  city  for  diverting  our  proportion  of  what  would  be 
288  cubic  feet,  that  is,  an  allowance  must  be  made  to  the 
City  of  Boston.  In  the  proposition  I have  made  here, 
instead  of  amounting  to  $528,  $1,100,  and  $1,584,  it  would 
be  the  per  cent,  of  the  220  cubic  feet,  more  or  less,  which 
would  reduce  my  results  to  that  extent.  I have  said  that  for 
three  months  in  the  year  there  is,  with  both  rivers,  288 
cubic  feet  per  second,  but  it  is  very  doubtful  whether  in  any 
day  during  those  three  months  so  much  water  would  run 
over  the  dam  all  day  as  to  supply  to  the  river  369  cubic  feet, 
so  that  the  city,  even  then,  would  be  taking  some  portion  of 
the  water  that  was  running  over  the  dam,  and  that  might,  in 
some  measure,  compensate  the  periods  when  our  supply  is 
less  than  the  288  cubic  feet. 

Now,  gentlemen,  these  figures,  I have  said,  I arrive  at  by 
estimating  the  value  of  the  water-power,  were  it  for  sale ; 
but  neither  of  these  petitioners  presents  any  such  case  as 
that.  I propose  to  take  them  in  their  order,  and  to  show 
you  how  my  clients  think  their  claim  is  increased  over  these 
amounts.  I say  nothing  here  about  considerations  in  deeds, 
about  the  low  rates  that  these  powers  and  this  land  were 
sold  at  years  ago,  because,  in  my  judgment,  there  is  certain 
evidence  here  that  those  amounts  are  of  no  value  as  guides 
in  establishing  the  damages  here.  Mr.  Faulkner,  it  appears, 
in  1862,  gave  $3,000  for  ten  cubic  feet  of  water,  the  interest 
of  which  would  amount  to  about  the  ratio  of  the  Essex  Com- 
pany more  or  less. 

Mr.  Butler.  Just  exactly  that. 

Mr.  Richardson.  One  $18,  and  the  other  $20,  isn’t  it? 


Argument  of  Hon.  D.  S.  Richardson. 


1021 


Mr.  Butler.  The  land  went  in  at  just  about  that. 

Mr.  Richardson.  That  is  no  guide,  because  they  were 
glad  to  sell  their  land  to  have  the  property  improved.  Mr. 
Faulkner  bought  his  water-power  and  his  land.  That  water- 
power to-day  would  be  worth  to  him  to  sell  in  the  market  the 
rates  I put  in  my  table  before ; but  in  addition  to  that,  he 
has  built  his  mill,  eighty-one  feet  by  fifty,  five  stories  high  ; he 
has  put  in  six  sets  of  machinery  ; he  has  prepared  the  whole 
for  operation ; and  in  addition  to  giving  this  amount  for  his 
water,  he  has  put  in  all  this  capital.  The  water  would  be 
worth  nothing  to  him  without  the  capital,  and  the  capital 
there  would  be  worth  little  or  nothing  to  him  without  the 
water ; and  when  these  people  come  and  take  this  water 
away  from  him  after  it  has  been  united  with  his  capital  in 
that  manner,  it  does  not  lay  in  their  mouth  to  say  that  they 
will  pay  him  its  market  value ; but  they  must  pay  him  for 
the  water  that  they  have  taken,  and  in  addition  thereto  they 
must  pay  him  the  diminished  value  of  his  investment,  by 
which  he  used  that  water.  That  is  damage  done  to  his 
property.  It  seems  to  me  this  is  perfectly  clear. 

Take  the  case  of  Mr.  Hiscox,  to  which  I alluded  a little 
time  ago.  He  had  eight  horse-power,  for  which  he  gave 
$800,  adding  a little  piece  of  land  and  a room.  Now,  sup- 
pose the  City  of  Boston  had  taken  all  his  eight  horse-power 
away  from  him.  He  constructed  a building ; he  put  in  his 
works  and  laid  out  capital  there.  Would  $800  a year  be  a 
compensation  for  the  value  of  the  power  taken,  when  the 
building  he  put  there  and  his  machinery  were  rendered  of 
little  value  when  left  without  power?  It  seems  to  me  it  is 
perfectly  plain  that  the  value  of  the  water  taken  is  not  the 
only  element  in  the  three  cases. 

Now,  in  the  case  of  Mr.  Faulkner,  substantially  eleven 
horse-power  is  taken  away  from  him.  It  is  not  denied  in 
this  case  that  this  power  is  indispensable  to  him  to  carry  on 
the  work  that  he  has  established  and  been  engaged  on  there 
for  so  many  years,  and  that  just  so  much  is  his  mill  and  the 
machinery  damaged  as  you  have  taken  away  the  power  that 
he  has  to  run  it.  What  compensation  will  you  give  him? 
Not  the  market  value  of  his  power  alone,  because  then,  if 
you  took  the  whole  of  it  and  paid  him  that,  he  would  have 
to  shut  up  his  mill,  go  away,  and  lose  all  his  investment. 
You  are  obliged  to  pay  him  the  money  value  of  the  power,  in 
addition  to  the  loss  of  invested  capital  that  the  taking  away 
of  that  power  has  brought  about.  You  cannot  say  that  he 
could  have  horse-powers  of  others  around  there,  because  that 
depends  upon  contracts,  and  upon  the  circumstances  of  the 
parties,  and  is  an  uncertain  way  of  arriving  at  the  measure  of 


1022  Argument  of  Hon.  D.  S.  Richardson. 

compensation.  I can  see  only  two  ways  by  which  you  can 
justly  fix  the  measure  of  his  damages.  One  is  by  allowing 
him  for  the  value  of  the  power  and  the  damage  to  his  mill 
and  the  machinery,  assuming  that  the  power  is  taken  away, 
and  the  mill  and  the  machinery  are  of  so  much  less  value. 
The  other  is,  — and  I believe  in  these  cases  that  is  the  con- 
clusion which  you  will  arrive  at,  — that  you  will  give  him 
such  a sum  in  capital  that  he  can  replace  that  power  by 
steam,  and  can  replace  it  so  that  it  will  not  be  dependent 
upon  hiring,  but  will  be  owned  by  him  and  under  his  control. 
I do  not  propose  to  discuss  the  question  of  how  much  it 
would  cost  to  supply  steam  there.  You  have  ample  means 
of  ascertaining  that  in  the  evidence  in  the  case.  I will  put  in 
however,  what  Mr.  Faulkner  claims  is  what  he  would  have 
to  do  in  order  to  get  steam-power  to  supply  this  want.  It 
is  certain  that  the  little  steam-engine  that  my  learned  brother 
alluded  to  as  supplying  the  wants  there,  costing  four  or  five 
hundred  dollars,  is  utterly  useless  for  any  such  purpose. 

Mr.  Butler.  What  did  he  put  it  in  for? 

Mr.  Richardson.  He  put  it  in  for  heating  purposes,  for 
coloring  purposes,  and  because  he  wras  obliged  to,  waiting 
until  justice  pointed  out  to  him  what  he  could  do  perma- 
nently. He  put  it  in  to  meet  a temporary  necessity  caused 
by  the  conduct  of  these  defendants,  and  it  does  not  lay  in 
their  mouths  to  say  that  he  should  be  held  to  that  as  a per- 
manent arrangement.  Mr.  Faulkner  claims  that  he  should 
have  such  a sum  as  would  furnish  him  with  steam-power 
under  his  own  control,  and  the  cost  of  running  it,  with  fair 
compensation  for  his  capital.  He  claims,  in  the  first  place, 
land  at  the  price  it  can  be  procured  for,  to  furnish  a place  for 
engine,  boiler  and  building,  because  he  bought  with  his 
power  only  land  enough  to  use  it  as  he  then  used  it.  He 
claims  that  he  should  have  boiler  of  ten  horse-power  over 
the  water  diverted,  settingup,  including  foundation,  together 
with  safety-valve,  feed-pipes,  valves  and  flanges.  He  claims 
that  he  should  have  an  engine  of  five  horse-power  over  the 
water  diverted,  foundation,  setting  of  the  same,  including 
the  feed-pipes,  exhaust-pipes,  steam-pump,  heater,  clutches 
to  connect  and  disconnect  engine,  extension  of  mill,  main- 
shaft,  coal,  firemen  and  engineer.  Also,  a sum  sufficient  to 
pay  the  first  cost  of  this  steam  apparatus  and  setting  up. 
Then  add  to  that  a sum  sufficient,  the  yearly  interest  of 
which  shall  pay  for  coal,  engineer  and  fireman,  and  eight 
per  cent,  on  cost  of  steam  apparatus,  as  experts  say  this  is 
only  a fair  consideration  for  wear  and  tear  of  steam  ap- 
paratus. 

In  the  case  of  Mr.  Faulkner,  you  will  find,  first,  what 


Argument  of  Hon.  D.  S.  Kichardson. 


1023 


horse-power  is  taken  away  from  him,  and  over  what  period 
of  the  year.  Having  found  that,  you  are  either  obliged  to 
pay  him  the  value  of  that  horse-power,  and  the  damage  done 
to  his  invested  capital  by  taking  it  away,  or  you  are  bound 
to  see  to  it  that  he  has  money  enough,  as  matters  now  go,  to 
supply  that  power  with  steam  in  a manner  to  make  it  per- 
manently under  his  control ; and  he  cannot  go  on  with  his 
mill  without  that  power,  unless  he  abridges  his  machinery. 
What  those  sums  should  be  of  course  will  depend  upon  how 
you  find  the  facts  in  the  case. 

Coming  to  Mr.  Wood, — he.  is  situated  differently  from 
any  person  on  this  stream.  It  is  a small  power,  just  suffi- 
cient to  answer  the  purposes  of  his  business.  He  selected 
it  early,  when  this  water-power  was  put  in  the  market ; he 
constructed  his  mill  and  his  machinery,  for  his  own  personal 
business,  at  a good  deal  of  expense.  It  was  just  enough, 
and  no  more,  to  do  his  work.  Now,  out  of  that  they  have 
taken  5.28  horse-power,  leaving  him,  at  the  most,  not  far 
from  18  horse-power,  when  the  canal  is  full,  to  do  a business 
which,  at  the  lowest,  requires  20  horse-power.  They  have 
destroyed  the  value  and  efficiency  of  his  plant  and  his  appar- 
atus, and  destroyed  it  in  such  manner  that  he  cannot  supply 
it  by  steam.  You  would  hardly  find  that,  with  sixteen  or 
eighteen  horse-power,  it  would  be  advisable  for  him  to  put 
in  steam  to  make  up  this  balance.  He  thinks  it  would  be 
impracticable,  and  that  he  could  not  compete  with  those 
using  water-power.  If  you  should  so  find,  you  would  do  it 
by  the  same  calculations  that  you  make  in  Mr.  Faulkner’s 
and  the  other  cases.  That  matter  I will  leave  to  you.  If 

you  think  he  should  have  steam,  then  of  course  you  will 

give  him  the  capital  that,  considering  how  little  time  he 

will  have  to  use  it,  how  irregular  the  times  in  which  he 

will  have  to  use  it,  will  supply  what  is  taken  from  him  and 
make  him  whole.  If  you  do  not  do  that,  while  you  pay  him 
in  the  manner  calculated  for  the  actual  value  of  the  horse- 
power diverted,  you  must  look  to  one  further  and  greater 
element  of  damage,  to  wit,  the  injury  done  to  his  invested 
capital  for  the  purposes  for  which  it  was  put  there.  When 
you  pay  him  just  what  it  is  worth  in  the  market  to  others  for 
the  water  you  have  taken  away,  you  have  left  him  his  mill 
to  be  run  by  him  with  insufficient  power,  or  else  to  be  dis- 
posed of  for  some  other  and  different  purposes,  so  that  you 
must  give  him  a sum  that  will  compensate  him  for  the  dam- 
age you  have  done  to  his  mill  and  his  machinery  as  estab- 
lished there.  Supposing  twenty  horse-power  in  substance 
would  run  the  grist-mill,  as  he  says  it  would,  and  it  requi  ed 
twenty  horse-power  to  run  it,  as  he  said  it  would,  without 


1024  Argument  of  Hon.  D.  S.  Richardson. 

his  other  machinery,  — suppose  you  take  away  three  horse- 
power from  that  twenty  horse-power,  the  measure  of  the 
value  of  the  three  horse-powers  would  be  nothing  in  com- 
parison with  the  lamed  use  forever  of  the  rest  of  the  power 
there.  He  has  got  his  mill  built,  he  has  got  his  apparatus 
fixed,  and  the  means  of  taking  the  power  and  using  it.  And 
this  injury  would  be  greater  and  greater  as  the  water  of  the 
canal  at  any  period  falls  below  two  hundred  and  eighty-eight 
cubic  feet.  How  you  will  arrive  at  that  is  for  you  to  deter- 
mine. 

Then  the  next  case,  the  last  that  I have  at  present  anything 
to  say  upon,  is  the  Bleachery.  The  Bleachery  and  Mr.  Wood, 
as  we  have  seen,  do  not  at  all  times  get  the  power  that  they 
are  entitled  to  ; it  is  equally  clear  that  they  have  the  owner- 
ship of  that  power,  and  that  there  is  no  reason  why  they  do 
not  get  what  they  are  entitled  to,  except  the  practical  dis- 
putes about  using  it  between  the  parties.  So  I say,  in  their 
cases,  although  they  have  had  inconveniences  in  getting  at 
their  rights,  that  matter  is  to  be  settled  between  them  and 
the  parties  who  interfere  with  those  rights,  and  the  City  of 
Boston  cannot  look  upon  that  as  an  excuse  for  not  paying 
for  what  they  took  away  from  them. 

Mr.  Butler.  It  is  fair  that  I should  state  the  view  I shall 
take  of  that,  that  you  may  answer  it,  as  nobody  else  is  to 
speak  for  Mr.  Wood,  probably.  The  rule  being  the  market 
value  of  the  property  taken,  that  consideration  would  come 
in,  not  as  an  excuse  for  the  city  for  taking  the  property,  but 
in  this  view  : what  is  the  value  of  a water-privilege  for  prac- 
tical use  when  you  cannot  have  any  water?  That  is  the 
point  to  which  I wish  to  direct  your  attention.  No  matter 
whether  you  have  the  right  or  not.  There  are  a great  many 
things  that  a man  has  a right  to  that  he  does  not  get,  and 
they  are  not  valuable  because  he  does  not  get  them. 

Mr.  Richardson.  I understood  the  position  from  the 
very  start  of  this  case  when  we  stood  upon  the  dam,  at  the 
view  that  the  Wamesit  Power  Company,  which  lets  246 
horse-power,  and  has  but  88  water-power  to  supply  it  with, 
had  their  part  of  the  power,  and  none  went  to  the  Bleachery. 
I understood  it  to  be  claimed  there  that  of  course  it  was  no 
damage  to  them  because  somebody  else  took  the  water.  I 
think  I understand  the  whole  claim  made  by  the  City  of 
Boston  in  this  respect : " Either  through  your  neglect  to  en- 
force your  rights,  or  through  your  want  of  knowledge  as  to 
the  reason  why  you  did  not  have  your  rights,  or  for  some 
other  cause,  the  water  that  would  supply  your  whole  72  feet 
horse-power,  which  exists  within  twenty  rods  of  your  wheels 
and  flumes  at  the  head  of  the  canal,  does  not  get  down  to 


Argument  of  Hon.  D.  S.  Richardson.  1025 

you.”  Well,  I should  be  surprised  to  hear  the  City  of 
Boston  contend,  when  I have  proved  that  the  canal  has  the 
capacity  to  deliver  the  water  to  the  Bleachery  and  to  Mr. 
Wood  (for  Mr.  Frizell  says  there  is  no  question  upon  that, 
if  others  did  not  take  the  water  before  it  got  there ) , when  I 
have  proved  that  the  canal  is  six  feet  deep,  and  I do  not  know 
how  wide,  — a canal  anybody  would  suppose  capable  of 
carrying  any  amount  of  water  required  there,  — when  I have 
proved,  with  the  other  petitioners  in  this  case,  that  this  water, 
if  not  diverted,  comes  down  from  the  Sudbury  to  the  Con- 
cord, and  enters  into  the  mouth  of  the  Wamesit  canal  on  its 
way  down  to  Wood’s  and  the  Bleachery  — Isay  I should 
be  surprised  to  hear  the  City  of  Boston  contend  that  because 
we  have  not  at  times  looked  out  and  secured  that  water  and 
the  benefit  of  it,  they  will  set  that  up  and  deprive  us  of  the 
value  of  it.  Such  a proposition  is  hardly  to  be  maintained. 
I do  not  see  how  any  claim  of  that  sort  can  be  setup.  What 
is  it?  You  have  got  the  power,  but  you  have  let  others,  in 
the  kindness  of  your  hearts,  use  it ; you  have  not  used  it ; 
you  have  not  wanted  to  use  it,  perhaps,  yourselves.  You 
have  done  as  Mr.  Wood  has  done,  — got  your  power  at  night 
and  at  irregular  times  to  accommodate  your  neighbors.  But 
the  answer  to  this,  gentlemen,  is  clear  and  plain-,  that  by  our 
deed  we  have  a right  to  that  quantity  of  water  at  the  entrance 
of  this  canal,  and  a capacity  of  the  canal  to  deliver  at  our 
works,  and  because,  practically,  we  have  not  used  it  at  all 
times,  that  is  no  answer  to  our  claim  for  damages  when  the 
city  has  diverted  that  water  and  prevented  its  coming  to  that 
canal. 

I assume,  then,  that  notwithstanding  it  is  in  evidence  that 
at  times  we  do  not  get  our  share  of  the  water,  we  have  proved 
to  you  by  our  conveyance  that  we  have  just  as  much  right  to 
that  water  as  has  the  first  taker  on  the  canal,  or  as  has  the  last 
taker  on  the  canal  of  the  Wamesit  Power  Company.  And  for 
what  is  it  that  you  are  to  estimate  damages  ? Damages  that 
have  taeen  done  to  us  for  years  past?  No.  Damages  meas- 
ured by  the  manner  we  have  used  our  property  ? Not  neces- 
sarily. What  is  it?  It  is  the  damages  done  to  our  property 
by  taking  away  that  which  we  have  a right  to  claim  shall  go 
there  to  make  that  property  valuable,  and  which  would  go 
there  but  for  the  diversion.  The  fact  that  we  have  not 
always  asserted  that  right,  — the  fact  that  for  some  reason 
or  other  we  have  not  had  the  benefit  of  it,  — is  no  answer  by 
the  city,  when  they  have,  by  the  strong  hand,  authorized  by 
law,  taken  it  away  so  that  we  cannot  assert  it,  and,  therefore, 
they  must  pay  the  damage. 

Now*  what  is  the  damage  in  the  case  of  the  Bleachery? 


1026  Argument  of  Hon.  D.  S.  Richardson. 

The  Bleachery  has  put  in  a wheel  capable  of  using  all  that 
water-power.  They  have  72  horse-power,  and  they  have 
got  a 75  horse-power  wheel,  and  they  have  land  enough. 
They  are  situated,  in  that  respect,  just  as  the  Wamesit  Power 
Company  is  as  to  its  surplus  power.  What  is  it  worth  to 
them?  It  is  worth  to  them  just  such  a sum  unused  as  they 
could  sell  it  for,  or  as  they  could  get  in  using  it.  It  is  power 
connected  with  awheel,  so  that  it  can  be  delivered  to  any  per- 
son who  desires  to  use  it.  The  fact  that  they  do  not  use  it  for 
power  is  not  to  be  considered  alone.  It  is  taken  away  from 
them.  To-morrow  they  might  be  able  to  use  it  themselves 
or  sell  it.  What  is  it  worth  situated  as  it  is,  — power  reclaimed 
and  ready  to  be  used?  That  is  one  measure  of  value.  They 
do,  however,  use  some  of  that  power.  They  use,  in  connection 
with  their  repair-shop,  eight  horse-power ; they  use  for  the 
purpose  of  bleaching,  some  ten  or  eleven  cubic  feet  per 
second — ten,  I think  — it  is  somewhere  in  that  neighbor- 
hood. They  use  25  or  30  horse-power  now  for  some  pur- 
poses. That,  then,  has  an  extra  value  over  that  which  they 
have  not  appropriated.  That  gives  an  enhanced  value  to 
their  other  property.  What  it  is  worth  as  power  is  one  of 
the  elements  of  damage,  and  the  additional  benefit  they 
derive  from  that,  as  in  the  other  cases,  is  another. 

Now,  there  are  two  other  views  which  you  must  take  of 
the  value  of  their  property.  It  cannot  be  claimed  that 
because  they  do  not  use  it  they  should  have  no  pay  for  it. 
But  they  do  use  it.  They  have  created  such  a set  of  works 
that  every  particle  of  this  power  could  be  used  for  a purpose 
exceedingly  valuable,  not  only  to  their  own  works,  but  to 
their  neighborhood.  They  have  so  arranged  it,  that  any 
minute,  with  their  present  machinery,  the  whole  of  that 
power  could  be  used  for  extinguishing  fires  over  all  their 
property,  and  over  all  the  property  of  their  neighbors.  It 
seems  to  me  that  gives  a value  additional  to  what  it  would 
be  if  they  had  it  for  sale  in  the  market  only.  Why  not  ? 
$300,000  of  manufacturing  property,  situated  as  that  prop- 
erty is  situated,  would  command  $6,000  a year,  more  or  less 
premium  on  insurance,  and  I submit  to  you  if  one-half  per 
cent.,  $1,500,  would  not  be  readily  taken  off  of  the  rate 
of  insurance  for  any  manufacturing  company  that  had  appa- 
ratus connected  with  a 72  horse-power  wheel  with  this  quan- 
tity of  water  which  they  could  use  any  moment  a fire  should 
occur  there. 

Mr.  Butler.  I want  you  to  look  at  this,  Mr.  Richard- 
son. If  I understand  the  rights  of  these  parties,  the  Wame- 
sit Power  Company,  at  the  end  of  eleven  and  a quarter  hours’ 


Argument  of  Hon.  D.  S.  Eichardson. 


1027 


use  of  that  water  a clay,  could  shut  down  their  gates  and 
leave  the  canal  as  empty  as  a dry  bucket. 

Mr.  Eichardson.  I do  not  argue  that  they  have  any 
right  to  use  it,  except  for  the  eleven  and  a quarter  hours. 

Mr.  Butler.  How  could  they  extinguish  a fire,  if  the 
Wamesit  Power  Company  kept  the  water  out  of  the  canal 
the  other  thirteen  hours  ? 

Mr.  Shattuck.  Mr.  Eichardson  is  considering  the  river 
as  it  runs,  practically. 

Mr.  Butler.  Practically,  we  should  do  that.  After  they 
have  taken  the  water  eleven  and  a quarter  hours,  they  must 
stop.  They  have  a right  to  use  it  eleven  and  a quarter 
hours  as  much  as  they  want  to.  If  you  say  every  man  on 
the  canal  gets  an  interchange,  that  will  not  do,  because  we 
can  shut  every  man’s  mill  down,  except  for  eleven  and  a 
quarter  hours. 

Commissioner  Francis.  The  time,  eleven  and  a quarter 
hours  a day,  is  not  fixed  in  the  deed. 

Mr.  Butler.  My  idea  is,  that  the  rule  of  law  would  be 
the  ordinary  working-hours  of  the  day.  I have  no  doubt 
of  it. 

Mr.  Eichardson.  I do  not  claim  that  they  would  have  a 
right  to  use,  for  the  purpose  of  extinguishing  afire,  any  more 
water  than  is  granted  to  them  by  their  conveyance ; but  if 
twenty  of  the  forty  buildings  of  the  Wamesit  Power  Com- 
pany were  on  fire  at  any  time  when  the  Bleachery  had  no 
right  to  use  the  water,  if  they  should  put  on  their  hose  and 
put  out  that  fire,  I should  not  expect  that  they  would  be  sued 
by  the  Wamesit  Company  for  damages  for  so  doing ! But 
when  they  claim  that  there  is  water  running  there  that  is  not 
used,  I claim  that  during  the  time  they  have  a right  to  use 
it,  be  it  day  or  night,  they  have  a use  which  they  have  desig- 
nated for  it  which  would  lessen  the  insurance  upon  all  that 
property  a good  deal,  even  though  it  were  used  only  eleven 
hours  and  a quarter  a day. 

I said  that  the  Bleachery,  assuming  that  there  was  nothing 
but  a wheel  there  capable  of  using  all  that  power,  would  be 
entitled  to  the  value  of  that  power  to  be  used  or  sold.  I 
say,  in  addition  to  that,  they  have  a value  that  is  capable  of 
estimation  in  dollars  and  cents,  by  actual  appropriation  and 
use,  to  be  added  to  that ; and  that  is,  for  eleven  and  a quar- 
ter hours  of  the  day  no  fire  can  get  into  any  of  their  prem- 
ises without  their  having  the  power  of  applying  all  this 
water  to  extinguish  it ; and  I say  that  is  a circumstance  that 
would  diminish  their  insurance,  so  that  this  alone  would  save 
them  the  interest  each  year  as  large  as  it  would  be  on  any 
amount  which  you  might  give. 


1028  Argument  of  Hon.  D.  S.  Richardson. 


Then,  again,  when  you  come  to  the  question  of  use  for 
bleaching  purposes,  you  heard  the  evidence  of  how  much 
they  use.  They  use  three  or  four  thousand  gallons  a min- 
ute. Twenty  cents  a thousand  gallons  they  pay  to  the  city 
for  the  use  of  their  water.  The  amounts  are  all  down,  and 
you  will  reckon  from  them. 

I do  not  know,  gentlemen,  that  I can  add  anything  more 
that  will  help  you  in  arriving  at  any  conclusion  here. 
Reckoning  the  use  which  the  Bleachery  makes  of  this  water 
in  dollars  and  cents,  the  amount  would  come  to  a very  large 
sum.  Reckoning  twenty  cents  a thousand  gallons  on  three 
or  four  thousand  gallons  a minute,  with  twelve  cents  for 
raising  a million  gallons  one  foot,  and  in  like  ratio,  the 
amount  that  they  use  would  come  to  a very  large  sum.  That 
is  one  element.  The  use  for  fire  is  another  element.  The 
value  as  power  is  another  element  in  the  Bleachery  case 
which  you  are  to  take  into  consideration. 

I have  not  attempted  to  set  out  in  dollars  and  cents  by 
the  tables  which  I have  offered  any  exact  claim  which  either 
of  my  clients  makes  here.  Those  are  annual  losses,  and 
you  must  give  a principal  sum  which  will  give  the  damages 
each  year.  I started  with  those  calculations,  and  I say  now, 
that  if  you  add  compensation  for  damages  other  than  the 
value  of  the  water  taken,  you  will  give  to  each  of  these 
persons  a very  much  larger  allowance  as  principal  than  any 
estimate  I have  made  of  the  compensation  to  which  they  are 
entitled.  The  tables  I made  at  $100  a horse-power  each 
year  would  only  give  a sum  each  year  which  the  property 
taken  away  from  them  was  worth,  were  it  matter  of  mer- 
chandise in  the  market,  to  which  you  must  and  will  add, 
when  you  come  to  the  cases  of  Mr.  Wood,  Mr.  Faulkner 
and  the  Bleachery,  such  sums  as  you  find  their  property  re- 
quires to  make  up  the  damages  done  to  it  by  the  taking  of 
the  water. 

And  now,  gentlemen,  in  conclusion,  I ask  you  to  give  each 
of  the  petitioners  a principal  sum,  the  interest  of  which  will 
give  fair  and  full  compensation  for  the  damages,  which  they 
have  sustained  in  their  property,  as  provided  for  by  the 
statutes.  When,  hereafter,  the  thirsty  tax-payer  of  Boston 
drinks  his  glass  from  the  water  diverted  from  its  natural 
channel  (the  Sudbury  and  Concord  rivers),  and  is  refreshed 
thereby,  do  not  give  him  an  opportunity  of  reflecting  that 
the  great  benefits  his  city  has  derived  from  that  diversion 
have  been  obtained  by  paralyzing  the  industries  along  the 
line  of  those  rivers  without  full  and  adequate  compensa- 
tion. The  rich  and  prosperous  city,  in  which  as  inhabitants 
of  this  Commonwealth  we  all  have  a common  pride,  cannot 


Argument  of  Hon.  D.  S.  Richardson. 


1029 


wish,  through  any  ingenuity  and  ability  of  those  who  repre- 
sent it,  to  drive  a sharp  bargain  in  these  transactions.  Its 
citizens  will  feel  the  better  satisfied,  when  your  awards  are 
made,  if,  while  they  have  obtained  great  benefits  by  the 
diversion  of  the  water  of  Sudbury  river,  no  one  who  is  in- 
jured by  that  diversion  shall  have  cause  to  complain  that  he 
is  made  poorer  thereby. 

This  investigation  has  extended  over  a long  period  of  time, 
and  an  array  of  facts  has  been  laid  before  you  such  as  pro- 
bably will  never  be  exceeded,  if  they  can  be  equalled,  in  any 
other  hearing.  And  no  men  can  probably  ever  be  selected 
more  competent  to  appreciate  those  facts,  and  derive  just 
conclusions  therefrom,  and  whose  combined  judgment  will 
commend  greater  confidence  and  respect  than  those  on  this 
commission. 

I hope  such  sums  will  be  awarded  to  the  petitioners,  that 
they  will  be  accepted  at  once  by  all  parties  as  just  and 
reasonable,  and  that  in  this  manner  all  the  controversies  be- 
tween them  will  be  adjusted  without  further  litigation.  I 
thank  you  for  hearing  me  with  patience,  and  am  happy  that 
my  labors  and  anxieties  in  these  cases,  however  unim- 
portant they  may  be  in  aiding  you  in  your  deliberations,  are 
drawing  to  an  end. 


1030 


Closing  Argument  of  M.  Storey. 


CLOSING  ARGUMENT  OF  MOORFIELD  STOREY, 
Esq.,  FOR  C.  B.  SNYDER,  COMPLAINANT. 

I have  no  desire,  gentlemen,  to  weary  you  by  going  over 
again  the  details  of  evidence  which  have  been  presented  so 
elaborately  by  Mr.  Shattuck  and  Mr.  Richardson  ; and  I 
shall  content  myself,  therefore,  with  as  brief  a statement  a s 
I can  make  of  my  client’s  case.  But  I suppose  it  is  impor- 
tant to  consider,  first,  what  his  rights  were  before  the  action 
of  the  city  ; next,  what  he  has  lost  by  that  action ; and,  last, 
how  much  he  is  damaged  by  that  loss. 

First,  as  to  his  rights  before  the  action,  of  the  city.  In 
reference  to  those  rights  there  seems  to  be  some  difference 
of  opinion.  Mr.  Butler,  during  the  course  of  the  trial,  has 
made  one  claim  in  regard  to  them  ; Mr.  Child,  in  his  clos- 
ing argument  for  the  city,  has  made  another ; and  I propose, 
gentlemen,  to  present  still  a third.  My  client  had  the  right, 
under  two  deeds,  to  draw  from  the  Whipple  canal  forty-eight 
cubic  feet  of  water  a second,  during  eleven  and  a quarter 
hours  of  the  day,  for  six  days  of  the  wreek,  whenever  the 
water  in  that  canal  amounted  to  two  hundred  and  eighty- 
eight  cubic  feet ; whenever  it  fell  below  that  amount,  his 
right  was  to  draw  one-sixth  of  the  water  in  that  canal,  what- 
ever it  might  amount  to.  With  the  fall  at  his  mill,  that 
number  of  feet  of  water  a second,  applying  the  formula  that 
eight  and  eight-tenths  cubic  feet,  over  one  foot  fall,  equal  a 
horse-power  (p.  409),  would  amount  to  about  one  hundred 
and  thirty  horse-power ; and,  as  the  testimony  shows  that 
from  the  estimated  horse-power  twenty -five  per  cent,  must 
be  deducted  in  order  to  arrive  at  the  available  horse-power 
for  the  machinery  (p.  410),  his  available  horse-power,  after 
that  deduction,  would  amount  to  a little  more  than  one  hun- 
dred horse-power.  The  same  result  is  reached  by  his  testi- 
mony, and  Governor  Talbot’s.  Governor  Talbot  estimated 
that  it  would  require  ten  horse-power  to  run  each  set  of  his 
machinery,  which  is  flannel  machinery  (p.  400).  Mr.  Snyder 
testified  that  his  machinery  is  used  for  making  cassi meres 
(p.  683),  and  it  is  testified  by  several  witnesses  that  such 
machinery  requires  more  power  per  set  than  the  ordinary 
flannel  machinery ; Mr.  Snyder  also  testified,  that,  in  his 
judgment,  it  required  about  ten  horse-power  to  run  each  set 
(p.  684),  which  would  reach  about  the  same  result,  — one 
hundred  horse-power  for  the  mill.  The  city  concedes  that 


Closing  Argument  of  M.  Storey. 


1031 


our  right  would  be  ninety-six  horse-power  (p.  684).  I take 
it  that  one  hundred  is  more  nearly  correct ; and,  for  the  pur- 
pose of  convenience,  I shall  assume  that  that  is  the  horse- 
power which  our  right  gives  us. 

I desire  now  to  call  your  attention  to  the  deeds  under 
which  our  right  comes.  Mr.  Butler,  on  the  six  hundred  and 
forty-second  page  of  the  report,  states  his  claim  thus  : " You 
are  to  draw  two  hundred  and  eighty-eight  feet,  never  ex- 
ceeding that  when  the  height  of  the  water  is  at  the  perma- 
nent stone  dam,  and  all  above  belongs  to  us.  We  are  to 
keep  up  the  flash-boards,  because  that  tends  to  keep  up  the 
head.  You  don’t  own  the  water;  and  my  construction  is, 
that  the  Wamesit  Power  Company  own  every  drop  of  water 
above  two  hundred  and  eighty-eight  cubic  feet,  and  you  do 
not  own  that  two  hundred  and  eighty-eight  feet  except  when 
it  is  running  at  the  height  of  the  stone  dam.” 

Now,  gentlemen,  I desire  to  read  the  language  of  the  deed 
which  describes  our  right  (p.  604) , because  I think  that  lan- 
guage makes  it  plain  that  our  right  is  the  right  to  use  our 
portion  of  the  water  whenever  it  runs  in  that  canal,  whether 
the  water  stands  at  the  height  of  the  permanent  stone  dam, 
or  at  the  height  of  the  flash-boards,  or  is  running  over  the 
flash-boards.  The  language  is,  "Also  the  right,  privilege 
and  easement  to  take  water  by  means  of  the  canal  of  the 
grantor  lying  southerly  of  the  premises,  and  leading  out  of 
Concord  river,  and  by  means  of  head-raceways  to  enter  the 
said  canal  at  any  points  opposite  the  premises,  and  to  con- 
duct the  water  to  the  premises  to  be  used  thereon,  the  same 
to  be  done  in  such  a manner  as  in  nowise  to  injure  or  weaken 
the  banks  of  said  canal,  or  interrupt  the  flow  of  water  there- 
in ; also,  the  right  for  said  water  to  enter  said  canal  from  the 
said  Concord  river  to  the  extent  hereinafter  specified,  and 
the  right  forever  hereafter  to  have  said  canal  and  the  banks 
thereof  and  the  permanent  dam  owned  by  the  grantor  across 
Concord  river  continued  for  the  purpose  of  affording  a water- 
power, and  to  the  extent  and  with  the  exceptions  and  reser- 
vations hereinafter  contained  and  set  forth.”  I read  from 
one  of  the  deeds,  where  the  quantity  conveyed  is  thirty-six 
cubic  feet.  The  quantity  conveyed  by  the  other  is  twelve 
cubic  feet,  which  makes  the  whole  amount  forty-eight  cubic 
feet.  " The  quantity  of  water  which  may  be  drawn  from  the 
canal  by  the  grantee,  his  heirs  and  assigns,  is  strictly  limited 
to,  and  shall  not  exceed,  thirty-six  cubic  feet  per  second,  for 
eleven  and  one-quarter  hours  per  day  of  six  days  of  the 
week.  And  if,  at  any  time,  the  quantity  of  water  in  the 
canal  shall  not  equal  two  hundred  and  eighty-eight  cubic 
feet  per  second  during  the  time  aforesaid,  then  the  grantee, 


1032 


Closing  Argument  of  M.  Storey. 


his  heirs  and  assigns,  shall,  during  such  time,  be  restricted 
to  one-eighth  of  the  quantity  of  water  in  the  canal.  Mean- 
ing that  the  quantity  of  water  which  may  be  drawm  from  the 
canal  by  the  grantee,  his  heirs  and  assigns,  shall  never,  at 
any  time,  exceed  thirty-six  cubic  feet  per  second,  for  the 
above-specified  time,  however  great  may  be  the  supply  of 
water  from  the  said  canal,  and  that  the  quantity  of  water 
which  may  be  taken  by  the  grantee,  his  heirs  or  assigns, 
shall  be  restricted  to  such  an  amount  less  than  thirty-six 
cubic  feet  per  second,  during  the  above-specified  time,  as 
shall  be  equal  to  one-eighth  of  the  supply  afforded  from  the 
canal,  whenever  the  water  in  the  canal  shall  be  less  than  two 
hundred  and  eighty-eight  cubic  feet  per  second  for  eleven 
and  one-quarter  hours  per  day  for  six  days  of  the  week.” 

The  right  is  to  take  a portion  of  the  water  whenever  it 
flows  in  the  canal.  There  are  in  the  language  of  the  grant 
no  words  which  limit  that  right  by  the  additional  condition 
that  the  water  shall  not  be  above  the  height  of  the  perma- 
nent stone  dam.  It  will  be  observed  that  the  light  which  is 
given  is  " the  right  to  have  the  canal  and  the  banks  thereof, 
and  the  permanent  dam  owned  by  the  grantor  across  Concord 
river  continued  for  the  purpose  of  affording  a water-power.” 
And  I presume  it  is  from  that  phrase  that  Gen.  Butler 
argues  that  we  have  no  right  in  the  water  above  the  top 
of  the  dam. 

Mr.  Butler.  No,  I did  not  argue  that. 

Mr.  Storey.  If  that  argument  is  not  made,  I shall  not 
answer  it. 

Mr.  Butler.  That  is  not  the  point.  The  point  is,  that 
however  much  water  is  flowing  there,  you  are  not  to  have 
any  more  than  your  aliquot  part. 

Mr.  Storey.  I read  your  claim. 

Mr.  Butler.  I was  speaking  of  the  limitation. 

Mr.  Shattuck.  I did  not  understand  that  Gen.  Butler 
made  that  claim. 

Mr.  Butler.  I did  not  mean  to  say  that  you  have  not  the 
right  when  the  water  is  above  the  stone  dam  to  take  288 
feet. 

Mr.  Storey.  Let  me  call  your  attention  to  your  precise 
words  : "You  do  notown  that  288  feet  except  when  it  is  run- 
ning at  the  height  of  the  stone  dam.” 

Mr.  Butler.  Precisely.  My  proposition  is,  in  a word, 
that  when  it  is  above  that,  we  have  the  right  to  draw  it  down 
by  another  canal  to  the  height  of  the  stone  dam,  and  carry  it 
all  off,  if  we  like. 

Mr.  Storey.  That  is  precisely  the  point  to  which  I was 
addressing  myself. 


Closing  Argument  of  M.  Storey. 


1033 


Mr.  Shattuck.  If  that  point  is  made,  I would  like  to 
make  a suggestion.  I will  wait,  however,  until  you  get 
through. 

Mr.  Butler.  The  difference  is  this  : I do  not  say  that  you 
have  not  the  right  to  use  the  water  while  it  is  running  over 
the  dam,  but  we  have  a right  to  draw  down  the  surplus  water 
to  288  feet ; that  is  the  point. 

Mr.  Storey.  I understand,  then,  that  the  claim  does  not 
differ  materially  from  the  claim  I was  combating.  It  is 
claimed  that  we  have  not  the  right  to  take  any  water  flowing 
into  our  canal,  which  comes  from  that  part  of  the  river,  which 
is  above  the  height  of  the  permanent  stone  dam  ; that  if  the 
grantor,  or  his  assignee,  chooses  to  draw  off  that  water  in 
another  way,  we  have  no  right  to  complain. 

Mr.  Butler  That  is  very  clear. 

Commissioner  Russell.  Precisely  as  at  the  Billerica  dam, 
where  one  of  the  parties  has  a right  to  draw  to  any  extent 
until  it  is  reduced  to  a certain  point. 

Mr.  Shattuck.  I do  not  understand  that  Gen.  Butler  claims 
that  the  city  has  a right  to  draw  the  water  down  to  the  top 
of  the  stone  dam,  if  it  reduces  it  below  288  feet. 

Mr.  Storey.  I understand  it  so. 

Mr.  Butler.  To  explain  exactly  what  I mean,  my  claim 
is  this,  that  if  it  were  possible,  as  an  engineering  feat,  to  so 
construct  the  canal  that  it  would  carry  just  288  feet,  I should 
have  a right  to  put  the  head-gates  at  288  feet. 

Mr.  Shattuck.  That  is  as  I understand  the  claim. 

Mr.  Butler.  That  is  all,  and  I should  exercise  the  right, 
if  I saw  occasion. 

Mr.  Storey.  Do  I understand  you  to  claim  this  — that,  if 
when  the  water  is  at  the  height  of  the  permanent  stone  dam, 
the  canal  will  not  carry  288  cubic  feet,  but  if  when  it  stands 
at  the  height  of  the  flash-boards  it  will,  you  have  the  right  to 
draw  off  all  the  water  which  is  between  the  top  of  the  flash- 
boards  and  the  top  of  the  permanent  stone  dam,  although  by 
so  doing  you  reduce  the  amount  of  water  in  the  canal  below 
288  feet? 

Mr.  Butler.  Pardon  me.  If  I give  you  all  the  water 
there  is  in  the  river  (if  the  canal  is  not  big  enough,  that  is 
another  question),  — but  if  I give  you  all  the  water  in  the 
river  up  to  the  height  of  the  stone  dam,  above  that  you  have 
no  claim. 

Mr.  Storey.  That  is  precisely  what  I understood,  and 
that  is  what  I am  combating. 

Mr.  Butler.  When  it  is  less,  then  you  take  your  aliquot 
part.  I have  no  secret,  and  I want  my  claim  distinctly 
understood  ; I am  a little  anxious  about  that,  for  very  many 


1034 


Closing  Argument  of  M.  Storey. 


reasons.  My  claim  is,  that  I would  have  the  right  to  open 
another  canal  at  the  head  of  the  canal,  and  use  the  water 
down  to  the  top  of  the  stone  dam. 

Mr.  Shattuck.  Even  if  it  reduced  it  down  below  288 
feet. 

Mr.  Butler.  No. 

Mr.  Shattuck.  That  is  the  whole  question. 

Mr.  Butler.  That  is,  if  there  are  288  feet  in  the  river,  I 
have  the  right  to  draw  it  down  to  the  top  of  the  stone  dam, 
whatever  happens. 

Mr.  Storey.  Now,  our  claim  is  that  we  have  a right  to 
all  the  water  in  that  river,  up  to  288  feet,  whether  the  water 
stands  at  the  top  of  the  permanent  stone  dam  or  not,  even  if 
it  is  necessary  that  it  should  stand  at  the  top  of  the  flash- 
boards  in  order  to  give  us  that  quantity.  The  language  is 
that  we  have  the  right  to  take  the  water,  and  " the  right  to 
have  the  water  enter  the  canal  to  the  extent  hereinafter  speci- 
fied.” Now,  if  Gen.  Butler,  by  a canal  on  the  other  side, 
prevents  the  water  from  entering  the  canal  "to  the  extent 
hereinafter  specified,”  then  he  conflicts  with  the  terms  of  this 
grant.  We  have  the  right  that  the  course  of  the  river  shall 
be  undisturbed  so  long  as  all  the  water  is  necessary  to  afford 
us  our  share  of  288  cubic  feet.  The  moment  he  can  supply 
that,  and  have  surplus  water,  he  is  entitled  to  draw  off  the 
surplus  water,  and  he  may  carry  it  off  through  another  canal 
if  he  chooses. 

Mr.  Shattuck.  No,  sir;  I do  not  concede  that.  I did  not 
mean  to  interrupt  you,  but  as  the  statement  was  made  in 
my  presence,  I did  not  want  to  have  it  inferred  by  my  silence 
that  I conceded  it. 

Mr.  Storey.  Now,  I desire  to  call  the  attention  of  the 
commissioners  to  the  reservations. 

“And  said  grantor  reserves  to  himself,  his  heirs  and  assigns,  the 
right  to  lay  and  use  in  the  edge  of  the  river  outside  of  the  bank  a 
tail-race  along  the  line  of  the  conveyed  premises,  but  so  as  not  to  in- 
terrupt the  convenient  flow  of  water  from  said  premises  into  said 
river,  and  the  said  grantee,  his  heirs  and  assigns,  shall  not  by  reason 
of  abutting  on  said  river  or  owning  said  premises,  have  the  right  to 
have  the  water  from  above  in  Concord  river  flow  in  said  river  past 
said  premises,  but  said  Whipple,  his  heirs  and  assigns,  retain  for- 
ever, the  right  to  dam  said  riven  above  said  premises,  and  to  divert 
the  water  thereof  into  and  along  his  said  canal  for  the  privilege 
herein  conveyed,  and  for  other  privileges  established  and  to  be 
established.” 

“ And  the  said  Whipple,  for  himself,  his  heirs  and  assigns, 
further  covenants  that  he  will  forever  hereafter,  keep  and  maintain 
in  suitable  and  proper  condition  and  repair  the  said  canal,  enlarged 
to  the  capacity  aforesaid,  and  the  banks,  and  parts  and  appur 


Closing  Argument  or  M.  Storey. 


1035 


tenances  thereof ; also  said  permanent  dam  and  the  eight-inch  flash- 
boards  as  they  are  usually  kept  thereon,  subject  to  such  reasonable 
and  temporary  interruptions  and  hindrances  as  may  be  necessary 
in  such  maintenance  and  repairs.” 

Therefore,  gentlemen,  you  will  observe  that  he  gives  us 
the  right  to  have  the  water  of  Concord  river  enter  our  canal 
until  we  are  supplied  with  the  quantity  of  water  which  this 
deed  conveys,  and  in  order  to  fortify  that  right,  he  covenants 
with  us  that  he  will  maintain  the  dam,  and  maintain  the  flash- 
boards  for  the  purpose  of  keeping  up  such  a curr  ent  of  water  in 
the  canal  as  will  afford  the  amount  to  which  we  are  entitled 
under  his  conveyance. 

Now,  as  I understand  the  claim  of  the  city,,  it  is  that  these 
covenants  do  not  run  with  the  land,  and  to  that  point  I desire 
next  to  call  the  attention  of  the  commissioners. 

Mr.  Butler.  I have  not  claimed  that. 

Mr.  Storey.  You  claimed  that  to  me  in  the  elevator 
going  down. 

Mr.  Butler.  Pardon  me.  I simply  claimed  that  the  cove- 
nant to  build  the  canal  did  not  run  with  the  land.  He  cove- 
nants that  he  will  build  his  canal  of  a certain  size.  I admit 
that  he  must  keep  the  canal  and  flash-boards.  I only  say 
that  the  covenant  that  he  will  build  the  canal  is  a personal 
covenant,  that  does  not  run  with  the  land.  He  might  as 
well  covenant  that  he  will  build  a church.  We  are  to  main- 
tain the  canal  just  as  it  was  when  you  accepted  it,  just  as 
good  as  it  was,  and  we  are  to  maintain  the  dam,  we  are  to 
maintain  the  flash-boards,  but  if  the  canal  will  not  carry 
288  feet,  we  are  not  obliged  to  do  anything  but  keep  it. 

Mr.  Storey.  One  of  the  conditions  of  this  grant  is  — 

Mr.  Butler.  There  are  no  conditions,  I guess. 

Mr.  Storey.  One  of  the  terms  of  this  grant  is  " that  he 
will,  within  seven  months  from  this  date,  so  enlarge  the  said 
canal  that  the  same  shall  be  of  sufficient  capacity  at  all  times, 
when  the  water  in  the  river  and  canal  is  as  high  as  the  top 
of  the  said  permanent  dam  in  Concord  river,  to  carry  and  dis- 
charge not  less  than  two  hundred  and  eighty-eight  cubic 
feet  per  second,  for  eleven  and  one-quarter  hours  per  day,  of 
six  days  of  the  week,  without  the  water  therein  at  the  head 
of  the  head  raceways  of  the  grantee  being  drawn  down  more 
than  six  inches  below  the  top  of  said  permanent  dam.”  In 
other  words,  we  have  a right  to  have  the  water  flow  into  the 
canal  in  sufficient  quantity  to  supply  the  two  hundred  and 
eighty-eight  cubic  feet,  without  its  being  drawn  down  at  the 
foot  of  the  canal  (for  the  terms  are  the  same  as  those  in  the 


1036 


Closing  Argument  of  M.  Storey. 


deed  to  the  Lowell  Bleachery)  more  than  six  inches  below 
the  top  of  the  permanent  dam. 

It  was  argued  for  the  city,  in  the  opening  close,  that  we 
were  not  damaged  so  long  as  the  water  taken  from  Sudbury 
river  did  not  exceed  sixty-eight  cubic  feet  out  of  the  two 
hundred  and  eighty-eight  cubic  feet  to  which  we  are  entitled. 
That  argument,  as  it  seems  to  me,  rests  on  a very  imper- 
fect examination  of  the  conveyance,  for  by  the  terms  of  the 
deeds,  if  a single  foot  of  water  is  taken  from  the  canal,  which 
reduces  the  total  quantity  below  two  hundred  and  eighty- 
eight  cubic  feet,  of  that  single  foot  we  lose  our  aliquot  part, 
— our  sixth,  in  this  instance.  It  is  not  that  we  have  one- 
sixth  of  two  hundred  and  twenty  cubic  feet,  we  have  one- 
sixth  of  two  hundred  and  eighty-eight  cubic  feet,  and  a sixth 
of  any  quantity  less  than  two  hundred  and  eighty-eight  cubic 
feet  which  happens  to  be  running  in  the  canal.  If  you  take 
out  forty  of  the  two  hundred  and  eighty-eight  cubic  feet,  we 
lose  one-sixth  of  that  forty.  That  is  the  express  language 
of  the  conveyance.  That  is  our  right,  and  the  moment, 
from  any  cause,  less  than  two  hundred  and  eighty-eight 
cubic  feet  runs  in  the  canal,  that  moment  we  are  entitled  to 
draw  less  than  our  full  forty-eight  cubic  feet,  whether  that 
cause  be  a diversion  by  the  city,  or  a failure  in  the  natural 
supply. 

Mr.  Child.  Or  whether  it  is  taken  by  the  Wamesit 
Power  Company. 

Mr.  Storey.  No,  sir;  not  when  it  is  taken  by  the 
Wamesit  Power  Company. 

Mr.  Child.  Whether  the  Wamesit  Power  Company 
uses  it  at  one  end  of  the  canal  or  the  other  is  of  no  conse- 
quence. 

Mr.  Storey.  I should  leave  that  question  to  the  com- 
missioners, under  the  construction  of  our  deed. 

That,  then,  we  conceive  to  be  our  right,  whenever  there 
is  water  enough  in  the  river,  we  are  entitled  to  one  hundred 
horse-power. 

The  next  question  is,  what  the  city  has  taken,  and  I have 
already  contended  before  you,  gentlemen,  that  what  the  city 
has  taken  is  defined  by  the  language  of  the  written  taking 
which  has  been  filed  and  recorded,  to  wit,  that  it  is  all  the 
water  of  the  Sudbury  river.  I understand  the  commission- 
ers to  have  ruled,  that,  in  ascertaining  our  damages,  the  use, 
or  the  extent  of  use,  which  the  city  will  naturally  and  rea- 
sonably make  of  what  they  took,  is  to  be  considered.  I 
understand  that  what  the  city  have  taken  from  us  is  the 
right,  which  forms  part  of  our  whole  right,  to  have  the  water 
of  the  Sudbury  river  flow  in  its  accustomed  course  past  our 


Closing  Argument  of  M.  Storey. 


1037 


mill.  That  right  is  gone.  We  can  no  longer  sell  it,  or  lease 
it.  We  can  no  longer  rely  on  it.  If  we  have  a contract  to 
make,  that  portion  of  the  water-power  on  which  we  should 
rely  to  complete  it  is  gone,  and  the  measure  of  our  damages 
is  the  value  of  the  right.  The  city  having  actually  taken  it 
from  us,  having  actually  entered  upon  the  property  which 
they  have  taken,  they  are  to  pay  us  the  full  value  of  that 
right  as  it  would  be  if  we  had  sold  it  in  fair  open  market. 
If,  after  they  have  taken  it,  and  after  they  have  entered, 
they  do  not  see  fit  to  use  it  for  twenty  years,  that  does  not 
reduce  by  one  cent  our  claim  for  damages,  nor  does  it  make, 
as  I conceive,  any  difference  that  they  cannot  use  it.  I refer 
to  the  case  of  Harrington  vs.  the  County  Commissioners  of 
Berkshire,  22  Pick.,  263,  and  I propose  to  read  a passage 
from  the  opinion  of  Judge  Shaw.  That  was  a case  where  the 
County  Commissioners  of  Berkshire  took  a certain  portion 
of  a man’s  land  to  lay  out  a street.  He  brought  his  petition 
for  damages,  and  recovered  a verdict,  and  while  that  verdict 
was  pending  on  exceptions  in  the  Supreme  Court,  the  County 
Commissioners  discontinued  the  road,  and,  from  the  time  they 
passed  the  original  order  until  the  discontinuance,  they  never 
entered  on  his  land  at  all,  or  disturbed  it  in  any  way  ; so  that 
in  fact  their  action  never  inflicted  upon  him  a particle  of 
damage.  The  field  which  they  had  entered  upon  remained 
undisturbed.  He  had  the  entire  use  of  it,  and,  by  the  dis- 
continuance of  the  highway,  he  was  left  in  precisely  the 
same  position  which  he  would  have  occupied  if  no  action 
whatever  had  been  taken  by  them. 

"It  is  now  contended,”  says  the  Chief  Justice,  "for  the 
respondents,  that  it  would  be  highly  unjust  and  inequitable 
to  require  the  public  to  pay  the  whole  value  of  the  land  for  a 
naked  right  or  privilege  which  they  have  never  used,  and 
now  never  can  use  ; and  that  it  is  equally  unjust  for  the  com- 
plainant to  demand  a sum  of  money  by  way  of  damage  for  a 
loss  which  he  has  not  and  cannot  sustain.”  That  is  a very 
succinct  and  exact  statement  of  precisely  the  position  which 
I understand  the  commissioners  took  in  their  ruling,  and 
that  position  the  Court  distinctly  overrules  in  this  opinion.  I 
conceive  that  there  is  a little  fallacy  in  the  word  "use.”  It 
means  either  the  purpose  for  which  the  land  is  taken,  or  the  ex- 
tent to  which  it  is  used  for  that  purpose  after  it  is  taken.  I 
understand  the  rule  to  be  this,  that  the  purpose  for  which  a 
man’s  property  is  taken  by  the  public  may  be  considered  in  es- 
timating his  damages.  If  by  reason  of  the  purpose,  the  dam- 
age is  more  or  less  than  it  would  have  been  if  the  land 
had  been  taken  for  another  purpose,  that  may  be  considered  ; 
but  if,  after  they  have  taken  it  for  the  special  purpose,  they 


1038 


Closing  Argument  of  M.  Storey. 


do  not  see  fit  to  use  it  at  all,  that  last  consideration  is  not  to 
be  regarded  in  fixing  the  damages.  The  commissioners  re- 
ferred to  the  case  of  Dickinson  vs.  The  Inhabitants  of  Fitch- 
burg, which  was  a case  where  a part  of  a man’s  land  taken 
for  a street,  was  laid  out  as  a sidewalk,  and  the  respondents 
offered  evidence  that  it  was  laid  out  as  a sidewalk,  for  the 
purpose  of  reducipg  the  damages  which  the  petitioner  claimed. 
The  Court  say:  "We  think  the  evidence  of  the  fact  that, 
when  the  damage  was  assessed,  a sidewalk  had  been  laid 
down  on  and  over  the  land,  and  of  the  value  such  sidewalk 
was  to  the  estate,  was  rightly  rejected  by  the  sheriff,  because 
that  use  might  be  changed  to  any  other  use  to  which  a street 
may  be  appropriated.  But  the  uses  to  which  such  a strip 
taken  to  widen  a street  in  a village  or  city,  would  probably 
be  applied,  for  a sidewalk  or  other  use  beneficial  to  the  adja- 
cent owners,  might  properly  be  taken  into  consideration  in 
estimating  the  benefit  to  be  set  off  against  the  damage  done 
to  the  same  estate  by  the  taking.”  This  rule  was  applied 
under  the  special  provisions  of  the  highway  act,  which  re- 
quired the  commissioners,  in  estimating  the  damage,  to  con- 
sider, first,  the  loss  which  the  estate  had  sustained  by  the 
taking ; and  then  the  benefit  which  the  estate  derived  from 
the  use  to  which  the  part  taken  was  put,  and  then  offset  the 
two.  But  I do  not  understand  that  there  is  any  claim  in 
this  case  that  our  estate  is  benefited  by  the  purpose  to  which 
this  water  which  the  city  has  taken  is  applied,  and  the  fallacy, 
as  it  seems  to  me,  lies  in  the  two  meanings  of  the  word 
"use.”  The  purpose  for  which  the  water  is  taken  deprives 
us  of  it  entirely.  They  might  not  use  it  for  that  purpose  for 
a hundred  years,  but  under  the  case  in  the  22d  of  Pickering 
we  are  entitled  to  the  value  of  the  right  we  have  lost.  The 
value  of  so  much  property  has  been  taken  out  of  our  estate. 
That  damage  we  certainly  have  sustained.  It  may  be  that 
in  addition  to  the  value  of  that  right,  a damage  has  been 
inflicted  upon  the  residue  of  the  estate,  and  for  that  also  we 
are  entitled  to  be  paid. 

Such  is  the  theory  of  the  law,  but  I do  not  know  that  in 
this  case  the  question  which  I have  discussed  is  of  much 
practical  importance,  for  what  is  it  which  makes  this  right 
to  have  the  Sudbury  river  flow  in  our  canal  valuable  to  us  ? 
It  is  the  certainty  that  we  can  depend  upon  that  quantity  of 
water  when  we  need  it.  Suppose,  for  example,  the  city 
were  to  say  to-day,  "We  will  grant  you  by  deed  the  right 
to  take  the  water  of  Sudbury  river  when  it  is  flowing  over 
the  dam  at  the  rate  of  3,200  cubic  feet  a second.”  We  would 
not  pay  them  one  cent  for  it,  for  the  reason  that  at  such  a 
time  we  have  all  the  water  to  which  we  are  entitled  without 


Closing  Argument  of  M.  Storey. 


1039 


it.  That  which  makes  the  right  to  have  the  Sudbury  river 
flow  by  our  premises  valuable  is  the  certainty  that  when  we 
need  that  water  to  make  up  the  portion  of  water  to  which 
we  are  entitled  under  our  grant,  we  can  rely  on  it.  At  those 
times  when  the  city  does  not  want  it,  it  is  not  valuable  to  us. 

It  is  argued  for  the  city  that  our  damages  are  to  be  esti- 
mated by  supposing  that  we  only  require  this  water  during 
the  three  summer  months,  June,  July  and  August,  and  those 
three  months  were  especially  named  by  Mr.  Child.  When 
that  argument  was  made,  the  evidence  which  was  before  the 
commissioners  must  have  been  overlooked.  It  is  not  possible 
to  name  three  months  of  the  year  in  which  the  water  is  at 
the  lowest  point.  That  is  shown  by  the  tables  which  they 
made  up  of  the  thirteen  dryest  months  in  thirteen  years. 
They  were  the  thirteen  dryest  months  selected  at  random, 
one  year  January,  and  another  year  July.  The  thirteen 
dryest  months  in  thirteen  years,  — May,  June,  July,  August, 
September,  October,  November,  or  whatever  they  happened 
to  be  (p.  700).  But  I desire  to  call  the  attention  of  the 
commissioners  to  the  other  tables  which  have  been  put  into 
the  case,  and  first  to  the  tables  put  in  by  Mr.  Fteley,  show- 
ing the  measurements  of  Sudbury  river  (pages  806,  807 
and  808).  The  first  shows  the  daily  yield  of  the  Sudbury 
river  and  Farm  pond  during  1874,  in  cubic  feet  of  water  per 
second,  and  I have  taken  the  pains  to  go  through  those 
tables  and  pick  out  the  dryest  days,  and  I find  that,  in  1874, 
the  dryest  day  occurred  in  September,  when  there  was  only 
12.10  cubic  feet  flowing  in  the  river.  The  next  dryest  day 
was  in  October.  The  next  was  in  November,  neither  one  of 
which  months  is  included  in  the  three  months  during  which 
alone,  according  to  the  argument  of  Mr.  Child,  we  suffered 
damage.  During  the  year  1875  the  average  flow  of  Sud- 
bury river  during  the  dryest  month  in  the  whole  year,  was 
12.4  cubic  feet,  and  that  dryest  month  was  January.  Dur- 
ing the  month  of  June  the  flow  was  104.6  cubic  feet.  Dur- 
ing the  month  of  July  it  was  38.7  cubic  feet.  During  the 
month  of  August  it  was  47.6  cubic  feet.  The  next  lowest 
month  was  again  not  one  of  the  three  marned  by  Mr.  Child. 
It  was  the  month  of  September,  when  the  average  flow  was 
24.9  cubic  feet.  Then  I will  call  your  attention  to  the  tables 
that  were  put  in  by  Mr.  Tilton,  showing  when  the  water  was 
running  over  the  dam  (pages  711,712,  713).  In  1874,  during 
June  and  nearly  all  July  it  ran  over.  During  the  month  of 
August,  1874,  beginning  with  the  10th,  it  ran  over  five 
inches, — five,  four  and  a half  down  to  two.  During  the 
month  of  September,  the  next  month,,  it  ran  over,  on  the 
1st  day,  .one  inch.  On  the  9th,10thJ  11th  and  12th,  half 


1040  Closing  Argument  of  M.  Storey. 

an  inch,  and  a quarter  of  an  inch : the  half  inch  on  the 
first  two  days,  the  quarter  on  the  last  two  days.  On  no 
other  day,  during  that  month,  did  it  run  over  at  all.  During 
the  month  of  October  it  did  not  run  over  at  all.  During 
the  month  of  November  it  ran  over  only  five  days,  and  the 
highest  point  which  it  reached  was  one  inch.  And  during 
the  month  of  December  it  run  over  only  fourteen  days,  and 
the  largest  amount  that  ran  over  the  dam  was  one  inch. 
Turning  to  1875,  during  the  month  of  January  no  water 
ran  over  at  all,  in  February  only  four  days  ; whereas,  during 
the  months  of  June,  July. and  August,  the  three  dryest 
months,  as  claimed,  the  water  ran  over,  and  sometimes  as 
high  as  eight  inches.  And  the  same  results  are  obtained 
by  examining  the  tables  more  carefully ; but  I have  stated 
enough  to  show  you  that  it  is  idle  for  the  city  to  argue 
that  our  loss  is  sustained  only  in  the  months  of  June,  July 
and  August,  for,  by  the  tables  that  they  themselves  have 
introduced,  they  have  proved  that  we  have  been  short  of 
water,  during  the  last  three  years,  quite  as  much  in  the 
winter  as  in  the  summer.  During  the  months  of  March 
and  April,  while  the  snows  are  melting,  we  may  be  reason- 
ably sure  of  having  more  water  than  we  need ; and  if  the 
city  were  to  grant  us  every  right  which  they  could,  to  have 
all  the  water  of  Sudbury  river  at  that  time,  we  would  not 
pay  them  one  cent,  because  it  would  jaqt  be  of  the  least  value 
to  us . The  same  things  which  make  it  of  no  value  to  them 
destroy  its  value  to  us.  I have  stated  this  for  the  pur- 
pose of  showing  that  that  which  gives  the  value  to  our  right 
is  the  certainty  that  we  can  rely  on  this  water  when  we  need 
it ; and  we  need  it  not  during  three  months,  but  during  the 
whole  year. 

I have  followed  in  my  argument  thus  far  the  order  of  Mr. 
Child,  on  three  points.  The  next  point  which  he  made  in  re- 
gard to  our  right  was,  that  there  is  no  evidence  that  we  are 
riparian  proprietors, — there  was  no  evidence  that  we  have 
any  right  whatever.  To  that  the  answer  is  simple,  that  we 
have  put  in  a warranty  deed,  which  shows  that  we  have  a 
right,  and  defines  its  character,  and  that  is  prima  facie  evi- 
dence that  we  have  it,  and  good  until  it  is  rebutted.  I do 
not  understand  that  the  rule  of  evidence  in  regard  to  a water- 
right  is  different  from  that  in  regard  to  a piece  of  land.  Ours 
is  a deed  of  a piece  of  land  which  borders  upon  Concord 
river. 

Mr.  Butler.  Below  the  dam. 

Mr.  Storey.  Below  the  dam,  with  this  right  to  the  water 
appertaining  to  it ; and  I think  it  is  hardly  worth  while  to 
dignify  the  point  by  further  argument.  In  fact,  I do  not 


Closing  Argument  of  M.  Storey. 


1041 


think  Mr.  Child  attaches  much  importance  to  it,  because  he 
said  it  was  unnecessary  for  the  commissioners  to  hold  with 
him  upon  it. 

The  next  argument  is,  that  we  are  restricted  to  the  terms 
of  our  grant,  and  it  is  only  when  the  water  runs  in  the  canal 
that  we  have  any  right,  and  therefore  that  it  is  competent 
for  the  grantor  to  prevent  the  water  from  running  in  the 
canal  by  digging  another  canal  and  making  it  run  on  the 
other  side.  The  answer  to  that  is,  that  the  grantor  has 
especially  conveyed  to  us  the  right  to  have  the  water  of 
Concord  river  enter  our  canal,  and  that  water  would  be  in- 
terfered with  by  making  another  canal.  He  cited  the  case 
of  the  Essex  Company  ; but  the  cases  are  materially  different. 
The  Essex  Company  have  granted  to  various  parties  who 
have  purchased  water-rights  from  them,  the  right  to  have  a 
certain  definite  quantity  of  water  during  the  year.  By  the 
terms  of  their  conveyance  the  Essex  Company  are  bound, 
out  of  the  water  which  runs  in  the  river,  to  give  them  the 
granted  quantity.  In  our  case,  they  have  not  granted  us  any 
quantity  of  water  absolutely,  but  simply  our  share  of  the 
water  which  runs  in  the  canal.  The  Essex  Company, 
therefore,  is  the  party  damaged  in  that  case,  because  the  city 
takes  from  them  a portion  of  the  surplus  water  upon  which 
they  rely  to  make  good  their  agreements  with  their  tenants  ; 
but  in  our  case,  the  city  takes  from  us  directly,  because 
every  drop  they  take  from  that  river  takes  just  so  much  from 
our  share  of  the  river.  It  is  not  an  absolute  quantity,  but  a 
certain  share  of  the  water  of  the  river,  and  that  which  dimin- 
ishes the  whole  diminishes  each  aliquot  part. 

The  junior  counsel  for  the  city  says  that  there  is  no  evi- 
dence that  Mr.  Whipple  was  a riparian  proprietor.  I think 
the  commissioners  will  find  some  evidence  of  that  in  the  tes- 
timony ; but  if  they  do  not,  there  is  evidence  enough  to  show 
that  we  have  the  right  which  we  claim,  and  it  is  unnecessary 
for  us  to  show  the  title  of  our  grantor. 

Having  considered  first  what  our  right  was  before  the 
city  took  the  water,  I pass  to  the  question  of  how  much  we 
are  damaged  by  the  action  of  the  city.  As  I have  already 
argued,  they  have  taken  from  us  the  right  to  have  that  water 
flow.  Now,  gentlemen,  taking  from  us  the  right  to  have 
that  water  flow,  only  damages  us  when  the  right  is  necessary 
to  us,  and  I desire  to  call  your  attention  to  the  testimony  of 
Mr.  Herschei,  as  bearing  on  the  question  of  when  we  are 
damaged.  It  appears  from  his  testimony  that  he  measured 
the  water  on  the  20th  of  March,  when  it  was  running  six 
inches  over  the  flash-boards  — between  six  inches  and  another 
higher  amount  measured  the  next  day.  He  says  that  at 


1042 


Closing  Argument  of  M.  Storey. 


that  time,  by  actual  measurement,  it  carried  382  cubic  feet 
(p.  777),  but  he  also  testifies  that  at  that  time  the  head  was 
drawn  down  more  than  the  limit  fixed  by  our  grant ; if 
according  to  the  terms  of  our  grant  the  head  was  only  drawn 
down  four  and  a half  inches  at  the  Lawrence-street  bridge, 
or  six  inches  at  the  end  of  the  canal  where  the  Lowell 
Bleachery  takes  the  water,  there  would  have  flowed  in  the 
canal  287.88  cubic  feet  (pp.  788,  789)  within  of  a foot  of 
the  exact  amount  which,  by  the  terms  of  our  grant,  that 
canal  should  hold ; therefore,  gentlemen,  when  the  water  is 
running  six  inches  over  the  flash-boards,  according  to  the 
terms  of  our  grant,  we  should  have  just  about  288  feet. 

Mr.  Butler.  That  wrould  depend  upon  what  the  head- 
gates  allow  to  go  into  the  canal. 

Mr.  Storey.  There  is  no  testimony  upon  that  point,  as 
to  how  the  head-gates  were  at  that  time. 

Mr.  Butler.  No,  but  it  is  regulated  by  the  head- 
gates. 

Mr.  Storey.  Yes,  sir,  it  is  regulated  by  the  head-gates ; 
regulated  in  such  a way  that  288  feet  were  running  at  that 
time.  I was  about  to  say  that  that  condition  of  things  is 
precisely  the  condition  of  things  when  we  suffer  the  maximum 
damage.  Whenever  there  is  just  288  cubic  feet  running  in 
that  canal  the  diversion  of  the  Sudbury  river  injures  us  the 
most.  The  diversion  of  one-fifth  involves  the  loss  of  the 
greatest  number  of  horse-powers.  On  the  other  side,  the  evi- 
dence in  the  case  shows  that  for  far  the  larger  portion  of  the 
year  there  is  water  enough  in  the  canal  to  run  those  mills. 
That  testimony  has  been  carefully  presented  by  Mr.  Shat- 
tuck.  He  has  been  through  the  details,  and  he  has  shown  to 
you,  by  the  calculations  of  Mr.  McDaniels  and  Mr.  Farring- 
ton, about  how  many  days  in  the  year  the  water-takers  on 
that  canal  can  rely  on  having  a supply  sufficient  to  run  their 
mills.  We  should  be  damaged,  of  course,  most  if  the  river 
always  ran  288  cubic  feet,  never  running  any  less.  Now,  we 
have  shown  that  when  the  water  does  not  exceed  six  inches, 
we  get  no  more  than  our  288  cubic  feet,  and  I think  the 
other  testimony  which  was  brought  to  your  attention  by  Mr. 
Shattuck,  shows  you  that  we  get  the  number  of  feet  which 
belongs  to  us  during  a very  large  portion  of  the  year.  I 
think  1 do  not  overstate  the  matter  when  I say  that  the  evi- 
dence shows  that  for  nine  months  in  the  year  we  get  no  more 
than  the  288  cubic  feet.  That  is  to  sav,  for  nine  months  in  the 
year  we  lose  our  full  proportion  of  the  water  of  the  Concord 
removed  by  the  diversion  of  the  Sudbury. 

Mr.  Richardson  has  argued  to  you,  and  the  argument  is 
sound,  that  we  suffer,  perhaps,  not  our  maximum  damage, 


Closing  Argument  of  M.  Storey. 


1043 


but  at  the  same  time  we  suffer  damage  whenever  the  water 
in  the  river  falls  below  369  cubic^  feet  of  water  per  second ; 
and  therefore  it  would  be  safe  to  conclude  that  we  suffer 
damage,  to  put  it  mildly,  for  nine  months  in  the  year  — 
either  the  maximum  or  less.  Now  that  the  Sudbury  river 
furnishes  its  fair  proportion  of  the  water  which  runs  in  the 
Concord  river  is  certainly  proved  by  the  weight  of  the  evi- 
dence. It  is  proved  by  the  theory  ; it  is  proved  by  the  testi- 
mony of  experts  ; it  is  proved  by  the  testimony  of  men  who 
are  personally  familiar  with  the  waters  of  the  two  streams  ; and 
it  is  proved  by  the  evidence  which  shows  how  much  work  the 
stream  actually  does.  That  evidence  they  seek  to  control  in  the 
first  place  by  stating  that  the  doctrine  of  averages,  however 
correct,  as  applied  to-  streams  of  the  same  size  and  flowing 
through  the  same  country,  is  extremely  fallacious  when  you 
undertake  to  apply  it  to  streams  of  different  size,  drawing 
from  water-sheds  of  different  size  and  different  character.. 
In  other  words,  that  it  would  not  be  safe  to  calculate  that 
the  upper  streams  of  the  Mississippi  contributed  their  full 
share,  according  to  the  water-shed,  of  the  water  which  runs 
over  the  bar ; and  that  doctrine  is  undoubtedly  correct,  but 
it  is  to  be  observed  that  it  does  not  apply  to  a case  like  this. 
The  Sudbury  river  and  the  Concord  river,  until  the  Concord 
reaches  the  Wamesit  dam,  are  not  streams  of  such  different 
sizes,  or  drawing  from  such  different  water-sheds,  or  having 
such  a different  height  in  the  country,  or  such  a different 
height  as  compared  with  their  surrounding  water-sheds,  as  to 
invalidate  the  general  rule.  It  is  perfectly  obvious,  from  the 
testimony,  that  the  Sudbury  and  the  Concord  flow  substan- 
tially on  the  same  plane.  According  to  the  testimony  of  Mr. 
Shedd,  the  fall  is  sometimes  not  an  eighth  of  an  inch  in  a 
mile ; according  to  the  testimony  of  one  of  the  witnesses, 
who  is  introduced  by  Mr.  Storrow  (page  109),  in  Fair 
Haven  Bay,  when  he  was  measuring  the  force  of  the  current 
the  wind  caught  his  float  and  sent  it  up  stream,  — there  was 
not  current  enough  to  carry  it  down.  That  shows  you,  gentle- 
men, that  between  the  absolute  elevation  of  the  Concord  and 
the  absolute  elevation  of  the  Sudbury  river  there  is  very  little 
difference,  no  such  difference  as  would  lead  you  to  suppose 
that  the  water-shed  of  the  two  streams  did  not  contribute 
proportionally  to  the  general  volume  at  the  Wamesit  dam. 
And  it  is  also  true,  as  you  know  from  your  knowledge  of 
Middlesex  County,  that  there  is  no  such  difference  in  the 
character  of  the  water-shed,  or  in  the  relative  height  of 
the  surrounding  country,  as  to  make  any  difference.  There 
is  some  little  testimony  from  Mr.  Shedd,  — I read  it  over 
this  morning,  — that  the  water-shed  of  the  Sudbury  is  good 


1044 


Closing  Argument  of  M.  Storey. 


because  the  water  runs  into  it  rapidly  from  the  neighboring 
country ; that  the  surrounding  country  is  high  ; but  we  cer- 
tainly know  that  the  surrounding  country  of  the  Concord  is 
not.  Mr.  Shedd  says  (p.  891)  : — 

“ Q.  How  does  the  Sudbuiy  compare  with  the  Concord  as  a 
river  to  furnish  power,  or  to  carry  off  the  rainfall? 

“A.  I think  there  is  no  great  difference  between  the  Sudbury 
and  Concord  rivers.  In  some  respects  they  may  be  different,  in 
one  way,  and  that  be  balanced  by  differences  in  another  way ; so 
that,  on  the  whole,  I think  that  the  supply  of  water  for  mill  pur- 
poses would  be  about  the  same  from  the  Sudbury  and  from  the 
Concord. 

“ Q.  Will  you  state  what  those  advantages  and  disadvantages 
are? 

“ A.  Both  rivers  are  what  would  be  called  slow  rivers.  In  gen- 
eral, the  Concord  river  is  a slower  river  than  the  Sudbury.  But 
.the  amount  of  water  that  would  be  gathered  from  the  Sudbury 
drainage  area  and  utilized  for  manufacturing  purposes  would  be 
rather  greater,  I think,  than  from  the  Concord. 

“ Q.  Why  so? 

“ A.  Because  the  slopes  are  steeper,  and  the  water  that  falls 
upon  those  slopes  would  be  less  exposed  to  loss  by  evaporation 
than  the  water  that  falls  upon  the  basin  of  the  Concord.” 


There  are  no  underground  streams  which  would  be  likely 
to  come  into  the  Concord.  If  the  magnitude  of  the  stream 
depends  on  its  height  as  compared  with  the  average  height 
of  the  water-shed,  the  water-shed  of  the  Sudbury  would 
be  quite  as  likely  to  supply  the  fair  share  of  water  to  the 
Concord  as  any  other  part  of  the  water-shed  which  feeds  the 
Concord  before  it  reaches  the  Wamesit  dam. 

Mr.  Shattuck.  Mr.  Shedd  thinks  the  Sudbury  a little 
better. 

Mr.  Storey.  Not  only  does  Mr.  Shedd  think  so,  but 
Mr.  Mills  thinks  so,  and  Mr.  Mills  is  familiar  with  all  the 
sources  by  which  the  Merrimack  is  fed  at  Lawrence.  He 
considers  the  water-shed  of  Sudbury  river  below  Saxonville 
not  equal  to  the  average  of  the  Merrimack  water-shed,  its 
water-shed  above  that  point  quite  as  good  as  the  average 
(pp.  71-87). 

I recapitulate  here  somewhat  briefly  various  pieces  of 
testimony  as  to  the  amount  which  the  Sudbury  river  fur- 
nishes. You  can  measure  either  by  the  water-shed,  by 
the  theories  of  science  as  testified  to  by  experts,  or  by  the 
amount  of  work  which  the  stream  actually  does,  or  by 
the  measurements  which  have  been  made.  Mr.  Mills  es- 
timates that  the  Sudbury  furnishes  from  forty  to  fifty-five 


Closing  Argument  of  M.  Storey. 


1045 


cubic  feet  for  the  twenty-four  hours  in  the  clryest  times 
(p.  90).  Mr.  Frizell  says  that  it  contributes  about  forty- 
five  cubic  feet  (pp.  659,  660).  Then  there  is  the  testimony 
of  persons  who  have  been  familiar  with  the  actual  opera- 
tion of  the  Saxonville  mills  since  1839,  who  testify  that 
in  the  very  dryest  times  they  have  water  enough  to  run 
their  mill  No.  3 and  to  do  their  washing  and  scouring,  and 
it  must  be  a very  dry  time  when  they  have  not  in  addition 
water  enough  to  run  the  mill  No.  2 (pages  214,  222,  223, 
226,  405,  406).  But  taking  the  lowest*  time  which  they 
fixed,  they  say  they  have  from  seventy-five  to  one  hundred 
horse-power;  fifty  to  run  Mill  No.  3,  fifteen  to  run  the  re- 
pair-shop, about  ten  for  the  washing  and  scouring,  making 
seventy-five  and  a little  excess.  Now,  if  you  will  apply  the 
formula,  you  will  find  that  8^  cubic  feet  with  25|  foot  fall, 
which  is  there  by  measurement  (page  248),  gives  them  for 
75  horse-power  35T2F  cubic  feet,  for  100  horse-power  44 
cubic  feet;  and,  gentlemen,  what  they  are  dealing  with  is 
the  actual  net  horse-power,  the  horse-power  which  is  avail- 
able to  the  machinery  ; and  in  addition  to  that  they  have  the 
additional  power  which  is  necessary  to  turn  the  wheels,  the 
25  per  cent,  which  is  to  be  deducted  when  you  reason  from 
cubic  feet  to  horse-power.  In  other  words,  if  I were  to  say 
how  many  horse-power  a given  number  of  cubic  feet  would 
furnish,  1 should  be  obliged,  if  I had  applied  the  formula, 
to  deduct  25  per  cent.  When  I reason  from  the  number  of 
horse-power  which  was  available  for  the  machinery  to  cubic 
feet,  I must  add  the  25  per  cent.  Am  I not  right? 

Commissioner  Francis.  No,  sir.  Excuse  me.  When 
you  should  add  a third,  you  have  a fourth. 

Mr.  Storey.  I observe  that  error.  I didn’t  mean  to  say 
that  I must  add  precisely  that  percentage,  but  that  1 must 
make  a corresponding  addition  to  the  deduction  which  I 
made  before. 

Commissioner  Francis.  Simple  arithmetic,  that  is  all. 

Mr.  Storey.  I didn’t  concern  myself  with  the  arithmetic 
so  much  as  the  general  theory. 

Mr.  Butler.  The  difference  between  interest  and  dis- 
count I take  it. 

Mr.  Storey.  Then  I was  wrong  in  putting  the  addition 
too  low.  I am  obliged  for  your  correction,  not  only  because 
it  is  right,  but  because  it  is  an  advantage  in  the  case.  Then 
I will  say  I should  add  a third  to  the  horse-power  which  is 
shown  here,  and  where  the  net  horse-power  shows  36  cubic 
feet  you  should  add  a third  to  that,  which  gives  48  feet ; and 
if  you  add  it  to  the  44  you  get  about  58,  so  that  where  the 
Sudbury  river  furnishes  from  75  to  100  horse-power,  as  it 


1046 


Closing  Argument  of  M.  Storey. 


actually  does  to  the  machinery,  it  must  furnish  from  48  to  58 
cubic  feet  a second,  and  in  the  dryest  times  ; and  that  you  will 
observe  corresponds  very  nearly  with  the  estimate  of  Mr. 
Mills,  from  40  to  55  cubic  feet. 

Mr.  Butler.  But  not  with  the  measurements. 

Mr.  Storey.  Then  there  is  another  suggestion.  Take 
the  city  tables  from  the  Cochituate  water-shed.  They  have 
concluded  because  the  Cochituate  water-shed,  which  is  a 
neighboring  water- shed,  is  found  to  yield  so  many  feet  of 
water  to  so  many  inches  of  rainfall,  that,  applying  the  same 
ratio  to  the  Sudbury  water-shed,  you  will  be  able  to  find 
what  that  yields  to  the  rainfall  ; and  on  page  700  you 
find,  from  the  table,  that  the  average  yield,  in  the  dryest 
months  of  nine  years,  is  29.2,  say  30  cubic  feet.  This 
gives,  of  course,  the  average  of  exceptional  cases.  Where 
you  get  the  dryest  month  in  each  year,  and  calculate  the 
average  of  those,  such  an  average  is  very  exceptionally  low. 
I mean  that  a single  very  dry  month  in  nine  years  may  bring 
the  average  below  the  actual  flow  of  either  of  the  eight  other 
months  selected.  It  is  to  be  observed,  that,  when  they  se- 
lect their  months,  they  do  not  take  July  and  August. 

Mr.  Butler.  Pardon  me.  You  would  not  let  me  put  in 
the  tables. 

Mr.  Storey.  Here  they  are  printed. 

Mr.  Butler.  I understand  there  is  a great  deal  printed 
which  is  not  evidence. 

Mr.  Storey.  I cite  from  your  questions. 

Mr.  Butler.  You  are  citing  from  my  questions.  Mr. 
Butler  said  that. 

Mr.  Storey.  I know  he  did. 

Mr.  Butler.  You  put  it  hypothetically.  You  said  it 
could  not  go  in. 

Mr.  Storey.  That  is  the  result  of  an  hypothetical  theory 
which  is  stated  by  the  counsel.  You  may  subject  the  argu- 
ment, Gen.  Butler,  to  the  same  infirmity  that  the  testimony  is 
subject  to.  It  is  worth  no  more  than  the  testimony  is  ; but 
that  is  the  argument  which  is  drawn  from  your  statement. 
According  to  that  theory  we  should  have  the  amount  I have 
stated ; and  I was  going  on  to  add,  that,  in  the  next  dryest 
month,  — a much  fairer  test  of  the  ordinary  dry  seasons,  — 
the  same  table  would  show  an  average  flow  of  forty-three  to 
forty-four  cubic  feet ; so  we  reach  by  that  testimony  approxi- 
mately the  same  result  that  has  been  proved  by  Mr.  Mills 
and  Mr.  Frizell,  and  the  actual  work  which  that  water  does, 
— and  these  coincidences  are  not  to  be  overlooked.  It  is  to 
be  observed  that  the  last  estimate,  if  it  be  competent  evi- 
dence, must  be  corrected  by  this  consideration,  that  the 


Closing  Argument  of  M.  Storey. 


1047 


actual  yield  of  the  Cochituate  water-shed  is  very  small  as 
compared  with  the  rainfall  (p.  637)  ; that  the  ratio  between 
the  two  is  exceptional,  and  to  apply  that  exceptional  ratio  to 
an  adjoining  water-shed,  where  the  ratio  probably  is  not  the 
same,  is  a source  of  error  for  which  allowance  must  be  made. 
Then  let  me  take  the  tables  of  Mr.  Mills,  page  30  (and, 
while  it  is  not  perhaps  safe  to  say  that  one  fifty-seventh  part 
of  the  amount  which  flows  in  the  Merrimack  at  Lawrence  is 
always  to  be  attributed  to  the  Sudbury,  yet  they  must  help 
us  to  form  an  approximate  idea) , and  call  your  attention  to 
the  fact  that,  during  the  five  years  in  which  these  measure- 
ments were  taken,  there  is  not  one  month  before  August, 
1376,  when  one-fifty-seventh  of  the  quantity  that  flowed  in 
in  the  Merrimack  is  less  than  fifty  feet.  I have  gone  through 
an  elaborate  examination,  and  divided  each  of  the  averages 
by  fifty-seven,  after  deducting  the  quantity  drawn  from  the 
lakes,  and  that  is  the  result.  I give  it  to  you  for  what  it  is 
worth.  Of  course  it  is  subject  to  various  corrections ; but 
the  fact  is  that  there  is  but  one  month,  and  that  Septem- 
ber, 1375,  when  one  fifty-seventh  of  the  quantity  flowing  in 
the  Merrimack  was  less  than  fifty  feet. 

Now,  gentlemen,  this  mass  of  testimony  is  met  how?  It 
is  met  by  certain  measurements  of  the  Sudbury  river,  made 
at  the  city  dam ; and  those  measurements  are  compared  with 
measurements  which  were  made  in  the  Concord  river  for  less 
than  three  months.  The  measurements  from  July  6th  to 
September  25th,  I believe  it  is,  of  the  Sudbury  river  are 
compared  with  measurements  during  that  time  of  the  Con- 
cord river,  and  from  the  comparison  it  is  claimed  by  the 
counsel  who  opened  the  closing  argument  for  the  city  that 
the  average  contribution  of  the  Sudbury  to  the  Concord, 
during  the  three  dry  months,  is  only  one-tenth.  In  regard  to 
the  accuracy  of  those  tables,  gentlemen,  I am  perhaps  hardly 
competent  to  speak.  This  I will  say,  that,  where  their  accu- 
racy may  most  easily  be  tested,  I have  endeavored  to  test  it. 
On  page  807,  in  the  first  column,  showing  the  average  yield  for 
January,  I find  there  were  five  measurements  : that  by  three 
of  these  measurements  it  appeared  that  12.4  cubic  feet  were 
flowing  in  the  canal ; by  two  it  appeared  that  13  cubic  feet 
were  flowing  in  the  canal ; but  the  average  is  put  at  12.4,  to 
wit,  the  lowest  point  reached  in  the  month.  The  highest 
point  is  not  considered  in  calculating  the  average.  I only 
make  this  suggestion,  as  showing  that  the  tables  are  not  accu- 
rate. And  there  is  one  very  singular  fact.  I have  taken 
pains  to  go  through  the  tables  to  find  what  is  the  day  of 
least  flow  in  each  year.  I find  that,  during  the  year  1874,  the 
smallest  amount  was  on  the  15th  of  September,  and  was  12.1 


1048 


Closing  Argument  of  M.  Storey. 


cubic  feet.  I find  that,  in  1875,  the  smallest  amount  was 
11.1  cubic  feet,  which  was  on  the  1st  of  August.  1 find 
that,  in  1876,  up  to  the  1st  of  July,  the  smallest  amount 
was  10.5  cubic  feet. 

Mr.  Butler.  On  what  day? 

Mr.  Storey.  That  10.5  was  on  the  29th  of  June.  So 
that  you  will  observe  that  for  two  years  and  a half,  from  the 
1st  of  January,  1874,  until  the  1st  of  July,  1876,  the  quan- 
tity of  water  flowing  in  the  river,  at  the  dryest  times,  never 
fell  below  10.5  cubic  feet  of  water  per  second.  On  the  6th 
of  July  the  city  measurements  began,  and  in  the  month  of 
July  the  lowest  point  which  the  water  reached  was  six  cubic 
feet,  or  about  half  of  the  smallest  quantity  which  was  meas- 
ured in  the  year  1874 ; and  the  lowest  points  reached  in  the 
three  months  July,  August,  and  September  were  6 cubic 
feet  per  second,  7.4  cubic  feet  per  second,  and  6.8  cubic 
feet  per  second.  The  smallest  amount  was  less  than  half  of 
the  least  amount  which  ran  in  1874,  and  little  more  than  the 
same  proportion  of  the  least  quantity  which  ran  in  1875. 
The  arithmetic  is  faulty  there.  But  the  point  is  that  10.5 
was  the  lowest  point  reached  before  the  measurements 
began ; that  after  that  time  we  have  three  very  low  meas- 
urements, and  that  the  average  of  water  is  lower  than  any 
average  which  you  will  find  in  the  previous  years.  You  will 
also  observe  that  the  day  when  we  made  our  view  no  meas- 
urements were  taken,  so  that  we  are  unable  to  compare  the 
state  of  things  we  saw  and  the  quantity  which  flowed  in  the 
river  and  canal.  It  is  obvious,  therefore,  from  this  table 
alone,  if  no  foreign  cause  was  acting,  that  the  measurements 
compared  with  the  Concord  river  were  measurements  at  an 
exceptionally  low  time,  and  no  fair  test  of  the  capacity  of 
the  Sudbury  river.  If  the  average,  based  upon  the  lowest 
point  of  six  cubic  feet  of  water  a second,  would  make  the 
Sudbury  river  one-tenth  of  the  Concord,  an  average  based 
on  12.1  cubic  feet  of  water,  the  lowest  point  reached  in  the 
year  1874,  would  make  it  one-fifth. 

Mr.  Butler.  Would  not  that  depend  upon  how  much 
ran  down  over  the  dam  at  Massic  ? 

Mr.  Storey.  Of  course  it  would.  They  must  be  com- 
pared together,  but  in  measurements  of  this  sort  there  are 
many  elements  of  error  which  it  is  impossible  to  bring  out. 
It  the  water  in  the  Sudbury  river  above  was  held  by  dams 
the  quantity  would  be  very  much  less.  If  any  of  the  mills 
above  on  the  stream  were  shut  down,  the  amount  which  would 
reach  the  city  dam  would  be  much  less  than  usual.  We 
know  the  Dwight  Printing  Works  were  shut  and  no  water 
which  would  be  retained  by  that  dam  was  there ; we  saw 


Closing  Argument  of  M.  Storey. 


1049 


that  in  our  view.  But  it  is  perfectly  obvious  that  the  com- 
parison made  from  such  figures  as  these  is  fallacious,  and  that 
the  witness  who  produced  them  admits,  when  he  states  that 
notwithstanding  these  measurements  and  the  comparisons  that 
he  has  made,  there  is  nothing  in  his  results  which  in  this 
case  invalidates  the  general  rule  that  the  amount  of  water 
which  the  Sudbury  would  yield  would  be  one-fifth  of  the 
water  running  in  the  Concord  (p.  835).  Surely,  gentlemen, 
no  strong  argument  can  be  based  by  a lawyer  on  tables  pro- 
duced by  an  expert,  which  the  expert  himself  admits  are  no 
guide  to  the  truth.  Therefore,  I say,  that  when  you  weigh 
the  mass  of  other  testimony  to  which  I have  called  your 
attention,  when  the  only  evidence  which  contravenes  the  facts 
on  which  we  rely  is  found  in  these  tables,  which  are  not  pre- 
tended to  be  a safe  guide,  the  general  rule  remains  unim- 
paired, and  we  may  safely  assume  that  a fifth  of  the  water 
which  flows  in  the  Concord  comes  from  the  Sudbury.  There 
is  not,  in  fact,  anything  in  the  character  of  the  two  streams 
which  should  invalidate  that  general  rule.  There  is  nothing 
in  the  testimony  of  any  of  the  witnesses  which  should  lead  us 
to  doubt  it,  and  after  that  testimony  we  have  the  testimony 
of  Mr.  Shedd,  familiar  with  the  streams,  appointed  to 
examine  them  particularly,  who  testifies  that  in  his  opinion 
the  Sudbury  yields  on  the  whole  at  least  the  proportion 
of  the  Concord  river,  which  it  would  be  supposed  to  yield 
from  the  comparative  areas  of  water-shed.  I think, 
therefore,  gentlemen,  we  have  shown  that  for  nine  months 
in  the  year  we  suffer  the  loss  of  a fifth  of  the  power  on  which 
we  can  rely  during  that  time ; and  I think  as  we  have 
shown  that  during  nearly  the  whole  year  we  have  the 
power  which  we  need  to  run  our  mill,  we  have  shown 
a loss  of  20  horse-power  for  nine  months  in  the  year. 
There  is  no  conclusion  which  I can  give  more  accurate  than 
that.  If  you  think  my  argument  is  subject  to  qualification, 
of  course  it  must  be  made.  I claim  a loss  of  20  horse-power 
for  nine  months  in  the  year,  and  the  measure  of  our  dam- 
ages is  the  value  of  what  we  lose.  That  is  one  element,  and 
before  I pass  to  that,  allow  me  to  call  your  attention  to  the 
argument  of  Mr.  Child  that  we  are  not  to  be  paid  a sum  of 
money  which  will  pay  us  our  damages  during  all  the  years 
that  the  mills  have  to  run,  and  when  they  eventually 
stop,  as  stop  they  must,  leave  us  with  the  capital  in  our 
pocket ; that  in  estimating  our  damages  you  are  to  consider 
the  fact  that  in  all  human  probability  this  mill  will  not  run  for- 
ever. When  the  City  of  Boston  takes  from  me  a corner  lot  to 
widen  its  street,  and,  remembering  that  corner  lots  in 
Palmyra  are  worth  less  to-day  than  they  were  once,  asks  me 


1050 


Closing  Argument  of  M.  Storey. 


to  take  less  than  its  fair  market  value  because  Boston  may 
some  day  be  as  prostrate  as  Palmyra,  I will  admit  that  there 
is  force  in  this  argument. 

Mr.  Butler.  Salem  is  nearer  than  Palmyra. 

Mr.  Storey.  I take  the  City  of  Palmyra.  If  you  take 
my  land  in  Salem,  then  I should  have  the  market  value  of 
land  there ; and  all  considerations  of  future  depreciation 
are  considered  in  fixing  that.  I was  going  to  add,  General, 
when  you  interrupted  my  beautiful  comparison,  that  when 
Boston  became  like  Palmyra,  then  the  mills  in  Lowell  and 
Lawrence  would  cease  to  run,  and^  not  before.  Until  that 
contingency  happens,  you  may  safely  conclude  that  the 
water-power  of  Lowell  will  be  valuable. 

I was  also  going  to  add  that  it  is  not  merely  the  value 
which  is  taken  from  our  property  which  is  to  be  paid,  but 
there  is  another  element  which  has  been  alluded  to  by 
another  counsel,  and  which,  I think,  it  is  fair  to  consider. 
It  is  this  : we  have  sat  here  for  nearly  two  months  endeav- 
oring to  find  out  exactly  how  much  water-power  is  taken 
from  these  mill-owners,  and  you,  gentlemen,  will  arrive  at 
some  conclusion  which  will  be  expressed  in  figures  ; but  the 
fact  that  it  has  taken  so  long  to  arrive  at  it,  the  fact  that 
arguments  on  both  sides  have  been  made  which  indicate  a 
very  wide  difference  of  opinions,  the  fact  that  the  evidence 
itself  is  very  conflicting  cannot  fail  to  impair  the  value  of 
the  property  which  depends  upon  that  water-power.  The 
person  who  comes  to  Mr.  Snyder,  for  example,  to  buy  his 
mill  and  power  will  say  " how  much  am  I to  take  out  of  the 
price  for  the  amount  which  you  have  lost  by  the  diversion  of 
the  Sudbury  river  ? ” and  what  can  we  tell  him?  We  can 
tell  him  that  the  commissioners  said  that  so  much  water  was 
taken,  and  that  they  had  the  best  assistance  that  we  could 
afford  them ; but  I venture  to  say  that  when  he  buys  the 
mill  he  will  make  a liberal  discount  from  that ; he  wants  to 
lie  sure.  Let  me  illustrate  by  a very  common  case.  Sup- 
pose a man  offers  for  sale  an  estate,  and  Mr.  Bowditch  or 
some  other  conveyancer  questions  the  title ; he  may  go  to 
the  very  first  lawyer  in  Boston  and  get  an  opinion  that  his 
title  is  good,  but  he  cannot  sell  that  property  until  the 
Supreme  Court  has  given  its  decision  upon  the  title.  The 
doubt  makes  the  estate  unmarketable.  That  which  gives  its 
value  to  the  Court’s  decision  is  the  fact  that  it  is  final,  — that 
it  makes  the  title  good.  Now,  if  your  decision  determined 
how  much  water  we  shall  lose  in  fact,  — was  not  merely  an 
opinion  as  to  our  probable  loss,  — then  I should  admit  that 
this  claim  which  I am  making  now  was  not  tenable  ; but  inas- 
much as  every  man  will  insist  on  guessing  for  himself  when 


Closing  Argument  of  M.  Storey. 


1051 


he  buys,  it  ought  to  be  considered  by  you.  I think  any  one 
of  you  will  admit  that  if  my  client’s  mill  was  put  into  the 
market  to-day,  there  is  great  doubt  as  to  what  it  would  bring, 
because  no  one  knows  how  much  water  is,  in  fact,  taken ; 
the  purchaser  would  say  that  a liberal  discount  from  the 
value  of  the  mill  ought  to  be  made,  because  he  was  uncer- 
tain how  much  water  we  have  lost  by  this  diversion. 

Passing  from  that  consideration  we  come  to  the  next. 
Supposing  that  we  have  lost  just  a fifth  ; supposing  that  w^e 
lose  20  horse-power,  the  value  of  that  is  what  it  will  cost  us 
to  replace  it.  If  it  were  possible  for  us  to  say  that  we  should 
need  that  20  horse-power  from  the  1st  of  January  to  the  1st 
of  October,  and  should  not  need  it  from  the  1st  of  October 
to  the  1st  of  January,  then  the  measure  of  our  damages 
would  be  more  easily  ascertained  ; but  when  the  nine  months, 
during  which  we  miss  that  power,  is  made  out  of  a day  in 
January,  five  days  in  February,  thirty  days  in  August,  and 
so  on,  — when  it  is  wholly  uncertain  when  that  want  of  the 
water,  which  comes  from  the  Sudbury  river,  may  be  felt,  we 
are  substantially  obliged  to  furnish  the  power  necessary  to 
supply  the  loss  of  the  water  for  the  entire  year ; and  that 
conclusion  is  supported  by  the  testimony  which  is  introduced 
by  the  city.  Mr.  Farrington,  I think,  testified  that  if  he 
were  obliged  to  furnish,  for  three  months  in  the  year,  at  un- 
certain times,  20  horse-power,  it  would  be  cheaper  to  run 
his  engine  all  the  time  (p.  753).  If  that  is  true  of  three 
months,  a fortiori  it  is  true  of  nine.  It  costs  very  little 
more  to  run  horse-power  for  a year,  than  it  does  to  run 
for  nine  months.  We  have  got  to  have  the  engineer 
there  ; the  interest  on  the  plant  is  the  same  ; we  cannot  dis- 
miss our  engineer,  and  say  we  don’t  want  him  after  the  1st  of 
October,  because,  when  we  want  him  again,  we  might  find  it 
difficult  to  replace  him.  All  the  substantial  expenses  are  to 
be  paid  whether  we  need  power  nine  months  or  a year ; and 
therefore,  I say  that,  in  estimating  our  damages,  it  is  only 
fair  to  give  us  that  sum  of  money  which,  put  at  interest, 
will  enable  us  to  replace  by  steam  the  20  horse-power  which 
we  have  lost,  and  that  in  fixing  that  sum  no  deduction  should 
be  made  from  the  cost  of  each  horse-power  for  a year.  But 
it  is  not  enough  that  we  should  put  in  a 20  horse-power 
engine.  What  you  have  taken  from  us  is  one-fifth  of  the 
available  horse-power  on  the  machinery,  and  you  must  return 
to  us  just  so  much  available  power  as  we  have  lost.  In 
order  to  give  us  so  much  available  power  you  must  give  us 
an  engine  which,  in  addition  to  furnishing  that  power  to  the 
machinery,  will  furnish  power  enough  to  turn  the  shafts  and 
the  wheels.  You  must  make  the  addition  of  an  amount, 


1052 


Closing  Argument  of  M.  Storey. 


whatever  the  percentage  may  be,  necessary  to  give  us  pre- 
cisely the  power  we  need.  Moreover,  it  is  not  safe,  when 
you  want  20  horse-power,  to  have  an  engine  which  will  give 
exactly  20  horse-power  available  on  the  machinery ; but  it  is 
necessary- and  prudent  to  have  more.  According  to  the  tes- 
timony of  Mr.  Farrington,  he  would  put  in  an  engine  which 
would  furnish  from  35  to  40  horse-power  (p.  751).  There- 
fore, gentlemen,  you  must  give  us  money  enough  to  put  in 
an  engine  of  that  size  (I  am  arguing  here  from  the  testimony 
of  the  defence  alone,  taking  the  testimony -which  is  most  un- 
favorable to  us)  ; you  must  give  us  an  engine  of  that  size ; 
and  you  must  give  us  money  enough  to  run  it,  so  that,  by  the 
use  of  steam  power  instead  of  water,  we  may  not  lose  a cent. 

Now,  as  to  what  the  price  of  that  steam-power  is,  much 
evidence  has  been  put  into  the  case,  and  1 think  the  general 
mass  of  the  testimony  would  tend  to  the  conclusion  that  for 
that  amount  of  power  $100  a year  per  horse-power  would  be 
about  fair.  I have  not  gone  very  accurately  over  all  the 
figures.  Mr.  Bacon’s  was  an  estimate  for  an  engine  of  320 
horse-power,  and  as  I understand  it  the  larger  you  have  an 
engine  the  smaller  the  cost  for  each  horse-power  will  be. 
Where  you  are  putting  in  an  engine  of  35  or  40  horse-power 
it  costs  you  more  money  per  horse-power  than  it  does  to  put 
in  an  engine  of  300  horse-power.  Mr.  Mills  testified  that  it 
would  cost  about  $60  for  a horse-power ; but  at  the  time 
when  Mr.  Shattuck  was  interrupted  in  his  argument,  it  was 
pointed  out  that  $60  was  the  cost  of  a horse-power  when  the 
engine  was  all  ready,  — when  the  fire  was  made  under  the 
boiler,  when  the  engineer  and  everybody  were  in  attendance 
(p.  74)  ; what  it  would  cost  after  you  had  made  all  }rour 
preparations  to  run  your  engine  per  horse-power  more  than 
it  would  to  keep  it  still,  and  that  he  said  was  $60  per  horse- 
power. It  was  not  what  it  cost  to  buy  the  engine  and  boiler 
too,  and  employ  the  engineer  and  make  all  your  arrange- 
ments to  furnish  horse-power  when  it  was  needed,  but  sup- 
posing all  that  was  done,  supposing  it  was  a question  between 
letting  an  engine  lie  still  and  running  it,  it  would  cost  $60  a 
year  per  horse-power  to  run  it.  Then  there  is  the  testimony 
of  Mr.  Farrington,  and  I submit  that  the  question  I put  to 
him  on  his  cross-examination  illustrates  precisely  the  way  he 
made  up  his  figures.  On  page  748  he  says,  when  he  finally 
comes  to  the  precise  question  which  was  asked,  " My  opinion 
is  that  if  the  proprietors  of  the  Sterling  mill  should  undertake 
to  supply  the  20  horse-power  to  their  establishment  it  would 
cost  them  $1,500  a year  to  do  it,  and  that  is  $75  a horse- 
power”— 20  times  75;  $75,  the  price  which  the  AVamesit 
Power  Company  get  for  a power  partly  made  up  of  water 


Closing  Argument  of  M.  Storey. 


1053 


and  partly  of  steam.  Then,  on  cross-examination  as  to  pre- 
cisely how  these  figures  were  made  up,  he  says,  (p.  760)  : 
" I arrived  at  it  in  this  way : I said  that  that  would  leave 
$870  to  pay  for  the  fireman,  interest  and  depreciation,  which 
I knew  was  very  large  ; that  it  would  fully  cover  it.”  That 
is,  deducting  630  from  1,500  would  leave  870.  Then  I asked 
him  (pp.  760,  761)  what  items  he  made  it  up  of,  and  he 
said  he  never  had  any  experience  in  putting  in  an  engine 
except  two.  When  Mr.  Faulkner  was  offered  as  an  expert 
to  prove  what  the  cost  of  a steam-engine  was,  he  was  ruled 
out,  and  I will  read  you  what  his  testimony  was,  in  order  that 
you  may  compare  them.  On  page  682  — 

“ Q.  Have  you  had  an}’  experience  in  putting  up  and  running  a 
steam-engine  ? 

“ A . I had  a great  deal  of  experience  at  Billerica. 

“ Q.  How  many  years? 

“ A.  Fifteen  or  twenty  years,  etc. 

“ Q.  You  say  you  have  been  acquainted  with  a steam-engine  at 
Billerica  — more  than  one  ? 

“ A.  Yes  ; two  or  three  different  engines  in  the  course  of  twenty 
years.” 

And  that  witness  was  excluded,  and  I think  properly  ; but 
Mr.  Farrington  was  only  acquainted  with  two  steam-engines, 
— one  an  engine  of  320  horse-power,  and  the  other  the 
Wright  engine  which  had  been  put  in  by  the  Wamesit  Power 
Company  under  certain  circumstances  (p.  755),  — and  when 
he  was  asked  as  to  what  made  the  cost  of  steam-power  he 
was  unable  to  tell  anything  about  it  (pp.  755,  760,  761). 
It  was  ruled  by  the  commissioners,  and  it  was  admitted  by 
us,  that  the  testimony  of  Mr.  Faulkner  was  of  no  value  ; and 
I submit  that  the  testimony  of  Mr.  Farrington  stands  on  the 
same  foundation  and  is  of  as  little  value,  because  he  knew,  as 
his  cross-examination  shows,  no  more  about  the  subject  he 
was  talking  of  than  Mr.  Faulkner.  When  you  consider 
the  elements  which  go  to  make  up  his  estimate  of  the  cost 
of  producing  steam-power,  it  is  obvious  that  with  any 
proper  allowance  the  cost  would  be  very'  much  greater. 
He  cuts  us  down  to  a second-class  fireman ; he  will  not 
allow  us  any  room  for  our  engine ; we  must  crowd  it  in 
some  small  place  in  our  mill,  and  we  must  take  the  same 
steam  to  run  it  and  to  do  our  heating  and  scouring. 
Now,  we  are  not  to  be  held  to  any  such  estimate  as  that. 
The  actual  practice  of  men  who  are  looking  to  their  own 
interest  is  to  be  considered,  and  I ask  your  attention  to  the 
testimony  of  Mr.  Snyder  (p.  684),  who  says  that  he  has 
in  his  mill  four  boilers,  and  when  the  engine  is  not  run- 
ning they  use  two  in  order  to  furnish  the  steam  which  is 


1054 


Closing  Argument  of  M.  Storey. 


necessary  for  their  scouring  and  dyeing,  and  when  they  run 
the  engine  they  put  on  the  other  two. 

Now  Mr.  Snyder  is  a practical  man ; he  is  not  a man  who 
is  going  to  waste  steam-power  ; he  is  not  a man  who  is  going 
to  build  a lire  under  two  additional  boilers  and  use  them 
when  the  two  which  are  running1  will  answer  to  run  his  engine 
just  as  well.  If  it  was  possible  for  him,  with  the  steam  fur- 
nished by  the  two  boilers  which  he  is  ordinarily  using,  to  run 
his  engine  and  heat  the  mill,  he  would  do  it ; but  in  practice 
he  finds  it  inexpedient.  To  run  his  engine  he  needs  the  two 
additional  boilers.  One  set  supplies  steam  for  the  engine, 
the  other  is  to  be  for  the  heating  and  dyeing.  Measured  by 
what  it  will  cost,  under  ordinary  circumstances,  to  make 
steam-power,  I think  the  whole  weight  of  the  testimony 
in  the  case  shows  that  for  an  engine  of  the  size  which  we 
shall  need  in  order  to  repair  the  loss  of  power  which  we  sus- 
tain, $100  for  a horse-power  is  a fair  estimate.  If  we  needed 
only  a thirty  horse-power  engine,  at  $100  a year,  we  should 
need  $3,000,  and  capitalized  at  6 percent,  it  would  amount  to 
$50,000,  and  that  would  be  the  damage  sustained  by  Mr. 
Snyder  from  the  diversion  of  this  river.  If  you  think  that 
a larger  engine  is  necessary,  or  that  my  estimate  of  the  cost 
of  power  is  too  small,  his  damage  should  be  proportionately 
increased.  If  you  think  that  in  addition  to  the  damage 
sustained  from  the  loss  of  water,  the  market  value  of  his 
estate  is  decreased  by  the  uncertainty  as  to  the  extent  of 
his  loss,  for  such  additional  damage  he  should  receive 
compensation.  I give  you  no  figures  on  that  point,  because 
you  are  familiar  with  his  property  and  I am  not,  and  any 
estimate  I can  give  you  would  be  absolutely  valueless. 
We  must  rely  on  your  personal  knowledge  and  skill  and  ex- 
perience. We  have  given  you  the  benefits  of  such  evidence 
as  we  could  obtain,  but  we  have  done  it  in  the  faith  that  you 
knew  quite  as  much  as  any  witness  whom  we  have  produced. 
Knowing  that,  we  have  laid  before  you  the  facts  and  evidence 
at  our  disposal,  but  we  do  not  rely  on  the  evidence  alone  ; 
we  rely  on  your  knowledge  and  judgment  quite  as  much  to 
supply  the  deficiencies  of  the  testimony  and  to  correct  its 
errors. 

But  there  is  another  point;  I don’t  know  that  it  is 
worth  while  to  refer  to  it,  but  perhaps  it  is  as  well  to 
mention  it.  The  extent  of  the  loss  is  precisely  the  same 
whether  the  water-right  is  taken  from  one  mill  or  from  the 
next.  In  other  words,  the  fact  which  has  been  admitted  that 
we  have  a steam-engine,  does  not  make  our  damage  by  the 
diversion  of  the  water  any  less  than  it  would  be  if  we  had  no 
engine,  — no  less  in  proportion  than  the  loss  of  the  Sterling 
mill,  which  has  lost  fifteen  horse-power.  In  other  words, 


Closing  Argument  of  M.  Storey. 


1055 


to  put  a homely  illustration,  if  two  men  each  have  a coat, 
and  one  has  two,  and  a thief  comes  and  steals  a coat  from 
each,  the  measure  of  damages  is  not  different  in  one  case 
and  the  other  ; the  thief  cannot  say  to  the  man  who  has  two 
coats,  "You  are  not  damaged  so  much  as  the  man  who  has 
but  one  coat ; you  have  another  to  put  on  your  back  to 
supply  the  place  of  the  one  I have  taken.”  What  we  ask  is 
the  value  of  the  right  which  we  have  lost.  The  testimony  in 
regard  to  steam-power  has  been  put  in  for  the  purpose  of 
affording  you  the  means  of  measuring  the  value  of  that  right. 
It  is  the  best  practical  test  that  we  can  offer  you.  We  were 
entitled  to  sell  that  right,  to  rely  on  that  right,  and  we  must 
receive  its  value  in  dollars  and  cents,  and  the  measure  of 
that  value  must  be  the  same,  whether  one  man  or  another 
owns  it ; whether  the  owner  needs  it  every  day,  or  has  so 
much  power  that  he  never  uses  it.  The  market  value  of  a 
horse  is  the  same,  whether  its  owner  has  twenty  more  or  only 
one.  Its  value  is  what  it  will  cost  to  supply  its  place,  and 
that  we  offer  to  you  as  the  measure  of  damages.  Capitalized 
even  at  a greater  rate  of  interest  than  has  been  suggested, 
our  damages  would  amount  to  not  less  than  $50,000. 

To  recapitulate  : Our  whole  right  has  been  taken.  If  the 
city  don’t  choose  to  use  it,  the  measure  of  our  damages  is  not 
changed.  Practically,  that  consideration  is  of  no  importance, 
because  they  will  use  it  whenever  the  right  to  use  it  is  valua- 
ble to  us.  We  would  not  give  them  one  cent  for  the  right  to 
use  the  enormous  quantities  which,  as  they  have  shown,  in 
some  portions  of  the  year  flow  over  their  dam,  because  those 
periods  of  excessive  flow  do  not  enhance  the  value  of  the 
right  which  we  have  lost.  The  value  of  the  right  depends 
upon  the  fact  that  we  may  rely  upon  it  in  the  dryest  times 
and  when  we  need  it.  The  measure  of  our  damages  is  what 
it  would  cost  to  supply  the  power  which  the  taking  of  the 
right  has  deprived  us  of,  and  by  all  the  testimony  in  the  case 
we  must  have  not  less  than  a hundred  dollars  a year  for  each 
horse-power  which  is  gone,  in  order  to  put  us  in  the  position 
which  we  occupied  before  the  taking.  To  supply  the  power 
which  is  gone,  we  need  not  less  than  thirty,  and  probably 
more  nearly  thirty-five  to  forty  horse-power ; and  1 do  not 
mean  thirty-five  to  forty  net  horse-power  applied  to  the  ma- 
chinery, but  an  engine  which  will  yield  that  amount,  in  order 
that  the  machinery  may  run  as  easily  as  it  would  have  run  by 
means  of  the  water-power  which  we  have  lost. 

We  claim  a sum  of  money  which  will  enable  us  to  put  in 
and  run  such  an  engine,  and  in  addition  to  this,  compensation 
for  the  depreciation  in  the  value  of  our  property  caused  by 
uncertainty  as  to  the  extent  of  our  loss. 

[ Adjourned  till  1.30  P.  M.~\ 


1056 


Argument  of  George  O.  Shattuck. 


AFTERNOON  SESSION. 

ARGUMENT  OF  GEORGE  O.  SHATTUCK,  Esq.,  ON 
PETITION  OF  THE  BELVIDERE  CO.  IN  REGARD 
TO  MILL  No.  1. 

These  deeds  have  been  put  in,  and  they  show  grants  from 
Mr.  Thomas  Hurd  going  as  far  back  — 

Mr.  Butler.  Are  they  put  in  according  to  the  order? 

Mr.  Shattuck.  They  are  not  put  in  quite  according  to 
the  order,  because  I was  not  able  to  furnish  all  of  the  deeds 
at  once,  and  the  printers  were  anxious  for  copy  ; but  they  are 
substantially  in  proper  order.  Deeds  put  in  according  to 
printed  pages  No.  , and  they  prove  our  title  to  y9^-  of  the 
water  on  the  Middlesex  dam,  after  providing  for  two  breast- 
wheels  and  a fulling-mill  for  the  Middlesex  Company,  which, 
according  to  the  uncontroverted  testimony  of  Mr.  Frizell, 
cannot  use  over  168  feet  per  second. 

Mr.  Butler.  I don’t  understand  that  he  testified  that  the 
present  wheels  cannot  use  over  that. 

Mr.  Shattuck.  The  wheels  provided  by  this  deed. 

Mr.  Butler.  Oh,  no.  The  present  wheels,  my  friend. 

Mr.  Shattuck.  I think  it  covered  the  present  wheels, 
too. 

Mr.  Butler.  The  fulling-mill  he  didn’t  know  anything 
about ; of  course  he  could  not. 

Mr.  Shattuck.  Oh,  yes  he  did.  He  made  an  estimate  of 
that,  and  there  is  nothing  to  contradict  it,  that  only  168  feet 
per  second  was  called  for.  If  they  have  any  larger  wheels 
which  they  have  put  in  there  wrongfully,  it  was  incumbent 
upon  the  city  to  show  it ; if  they  acquired  by  proscription  any 
adverse  rights,  it  is  also  incumbent  upon  the  city  to  show  it. 
We  stand  here  to-day  upon  our  title,  which  gives  us  of 
all  the  water  in  the  Concord  river  after  allowing  the  Middle- 
sex Company  168  cubic  feet  per  second.  The  provisions  in 
several  of  the  deeds,  by  which  the  flannel  mill  had  certain 
advantages  on  the  other  side,  are  not  material  now,  because 
we  own  the  flannel  mill.  Of  course  they  are  of  some  value 
as  against  the  holders  of  the  other  y2^,  but  they  are  not  of 
any  substantial  value  ; therefore,  I did  not  care  to  consider 
them.  The  Belvidere  mill  No.  1,  therefore,  is  entitled  to 
tVf  a^  damage  caused  by  the  taking  at  the  Middlesex  dam, 


Argument  of  George  O.  Shattuck. 


1057 


subject  to  the  claim  of  the  Middlesex  Company.  The  first 
question,  therefore,  is,  how  much  is  the  Middlesex  Company 
to  be  affected?  It  seems  to  be  agreed  that  the  water  has 
been  measured  during  a very  dry  period  which  we  have  had 
since  the  taking.  According  to  the  testimony  of  Mr.  Fteley 
and  the  witnesses  introduced  by  the  city,  the  testimony  is 
important  as  showing  the  minimum  supply.  It  appears  that 
during  the  time  of  our  measurements,  — a period  of  one 
month,  during  the  last  half  of  August,  when  there  was  a very 
small  rainfall,  and  during  the  early  part  of  September,  up  to 
the  25th,  when  the  contribution  of  the  Sudbury  river  was  at 
the  lowest  point,  — there  were  only  three  or  four  days  when 
there  was  not  water  enough  to  furnish  the  Middlesex  Com- 
pany its  full  quota,  so  that  I shall  assume,  for  the  purpose  of 
this  inquiry,  that  the  Middlesex  Company  is  in  the  position 
of  some  of  the  mills  at  Lawrence,  whose  claims  upon  the 
water  are  so  small  that  the  withdrawal  of  the  Sudbury  river 
has  no  substantial  effect  upon  them.  Therefore,  we  ask  for 
y92*o  of  all  the  damage  caused  by  the  taking  over  a fall  of  11 
feet  and  a fraction  in  the  summer,  and  about  9 feet  in  the 
winter.  The  table  from  which  I have  made  these  computa- 
tions, unfortunately,  is  now  in  the  hands  of  the  printer.  It 
was  the  table  which  Mr.  Frizell  introduced,  but  which 
General  Butler  asked  him  to  add  to,  and  he  made  certain 
additions,  and  it  came  here  this  morning  and  was  sent  away. 

Mr.  Child.  Here  it  is. 

Mr.  Shattuck.  Here  is  the  table.  I am  obliged  to 
you.  I supposed  it  was  in  the  hands  of  the  printer.  It  is 
hardly  necessary  for  me  to  repeat ; but  between  the  24th  of 
August  and  the  24th  of  September,  and  taking  the  average 
flow  while  the  mills  were  running,  and  we  find  that  on  the 
31st  of  August  there  were  160.82  feet  on  the  Wamesit  dam, 
on  the  13th  of  September  there  were  160.47,  on  the  14th  of 
September  there  were  139.74,  and  on  the  16th  of  September 
there  were  135.79.  Now,  if  we  add  the  contributions 
of  Hale’s  brook  to  this,  the  water  on  two  of  those  days  will 
come  nearly  or  quite  up  to  the  amount  used  by  the  Middle- 
sex Company.  There  were,  therefore,  only  two  days  in 
that  period  when  there  would  be  any  real  deficiency.  In 
those  there  would  be  such  a small  deficiency  that  probably  it 
never  would  be  known.  This  period  has  frequently  been 
spoken  of  by  my  friends  on  the  other  side  as  the  dryest 
period  ever  known.  Whether  that  is  so  exactly  or  not  is 
not  material,  but  it  is  of  great  value,  as  Mr.  Fteley  says,  of 
showing  the  minimum. 

The  fall  in  the  Middlesex  dam,  which  provides  for  Belvi- 
dere  mill,  was  during  this  period,  as  measured  by  Mr.  Fteley, 


1058 


Argument  of  George  O.  Shattuck. 


on  the  19th,  20th,  21st  and  22d  days  of  September,  respect- 
ively, 11.48  feet,  11.27,  11.35  and  11.05.  Now  what  are 
our  damages?  We  have  an  engine  large  enough,  I suppose, 
for  any  emergency.  We  have  used  that  engine  prior  to  this 
year  about  one  month  in  a year,  that  is  sometime  in  the  day 
for  about  30  days  in  a year,  and  during  that  time  we  have 
been  obliged  to  furnish  at  least  about  20  horse-power  because 
we  could  not  run  the  machinery,  the  engine,  without  incur- 
ring that  expense. 

Mr.  Butler.  But  pardon  me.  You  stop  down  there,  if 
I understand  it,  absolutely  when  the  water  gets  down,  and 
you  must  run  everything  by  steam.  You  cannot  draw  part 
water  and  part  steam. 

Mr.  Shattuck.  Oh  yes,  we  do  constantly. 

Mr.  Butler.  What,  when  you  are  down  below  the  bolt? 

Mr.  Shattuck.  Oh,  no  ; when  the  water  gets  down  below 
the  bolt  we  stop  wholly.  But  the  practical  working  of  it  is 
this,  when  they  find  the  tendency  of  the  water  is  to  go  below 
that,  they  put  on  the  steam  and  supplement  it,  and  reduce 
the  amount  of  water  used,  so  as  to  keep  it  above  that  point. 
That  is  the  testimony. 

Mr.  Butler.  I don’t  think  you  will  find  it  so. 

Mr.  Shattuck.  That  is  the  testimony. 

Mr.  Butler.  I am  very  sure  it  is  not.  It  would  be  a 
very  remarkable  way  of  using  it,  and  that  is  why  I don’t 
think  that  is  the  testimony. 

Mr.  Shattuck.  That  is  the  statement  made  to  me,  and 
that  is  Mr.  Stott’s  testimony.  He  does  sometimes  stop  wholly, 
and  sometimes  he  runs  partly  by  water  and  partly  by  steam. 
He  stated  that  fully.  He  didn’t  distinguish  between  the 
days  when  they  used  the  full  amount  and  the  days  when 
they  were  using  a part  of  it,  but  he  said  there  were  many 
days  when  they  simply  supplemented  the  steam,  and  many 
days  when  they  run  wholly. 

Mr.  Butler.  Part  of  the  day  they  would  have  to  use 
water,  and  then  they  would  have  to  put  on  the  engine  for 
the  rest  of  the  day ; but  I don’t  understand  that  they  put  on 
part  steam  and  part  water  at  the  same  time. 

Mr.  Shattuck.  I have  the  testimony  here  : — 

“ Q.  How  much  steam-power  have  3011  ? What  is  }X>ur  engine? 

“A.  We  have  a sixt}r-horse  Corliss  engine. 

u Q.  Whether  with  3'our  boiler  3011  have  more  or  less  than  that 
effective  power  that  30U  can  use  ? 

“ A.  Yes,  sir  ; if  we  had  any  use  for  it. 

“ Q.  How  much  more,  do  you  think? 

“ A.  Well,  we  have  what  is  called  a locomotive  tubular  boiler. 
It  would  drive  eonsiderabty  more  machinery  than  wliat  we  have. 
I can’t  sa}’  how  much. 


Argument  of  George  O.  Shattuck. 


1059 


“ Q.  Let  me  ask  you,  when  yon  use  steam  as  auxiliary,  what 
amount  have  you  practically  used  at  different  times  ? 

“ A.  Sometimes  we  have  run  the  water-wheel  in  combination 
with  the  steam-engine.  It  would  be  a hard  matter  to  say.  It 
might  be  two  or  three  horsepower,  and  it  might  be  ten  horse-power  ; 
and  sometimes  the  water  would  be  so  low  that  we  would  throw  the 
wheel  off,  and  run  entirely  by  steam. 

“ Q.  What  portion  of  the  day  do  you  run  steam? 

“ A.  That  depends  on  the  water. 

“ Q.  I mean,  practically,  — one  hour,  or  all  day? 

“ A.  Sometimes  we  start  up  in  the  morning  at  quarter  of  seven, 
bell  time,  and  there  will  be  water  enough  to  run,  and  we  should 
not  run  the  engine.  Then  in  an  hour’s  time  after  that,  or  a half- 
hour’s  time  after  that,  the  water  will  run  right  down,  and  we  have 
to  put  on  steam. 

“ Q.  When  you  start  steam  in  the  morning,  how  does  it  work? 

“A.  Those  things  are  governed  by  the  water  we  find  the  day 
before,  and  if  the  prospect  for  the  next  day  is  that  we  must  use 
steam,  the  order  to  the  engineer  is  to  have  the  steam  up  ready  to 
run  the  engine  in  the  morning ; and  if,  after  we  have  run  the  en- 
gine for  an  hour  or  two,  the  water  comes  down,  as  it  often  has 
come  down,  the  steam  we  have  got  up  would  be  of  no  account. 
We  don’t  need  to  use  it. 

“ Q.  Practically,  how  much  steam  is  required  when  you  are 
using  the  smallest  amount?  ” 

This  has  been  introduced  before,  and  I have  used  that  in 
my  other  argument.  Your  view  of  it  is  correct,  except  that 
they  did  a part  of  the  time  use  steam  with  water.  Now 
where  they  used  the  steam  as  auxiliary,  they  used  always 
as  much  as  20  horse-power ; where  they  used  it  exclusively 
they  used  as  much  as  50  or  60  horse-power ; and  during 
that  month  during  which  they  have  used  steam  at  all, 
the  damage  is  almost  as  great  as  if  they  were  obliged  to  use 
steam  exclusively.  The  change,  therefore,  which  is  to  he 
made  now  in  consequence  of  the  taking,  is  that  they  will  he 
required  instead  of  using  steam  one  month  to  use  steam  nine 
or  ten  months.  The  witness  Stott  stated  that  this  summer 
they  have  been  obliged  to  use  steam  nearly  all  the  time, 
except  after  the  freshets.  For  a few  days  after  the  freshets 
they  had  water  enough ; at  all  other  times  they  had  used 
steam.  The  problem,  therefore,  is  to  determine  what 
it  is  worth  to  supply  steam.  I will  call  it  nine  months, 
eight  or  nine  months.  It  will  probably  amount  to  40  or  60 
horse-power  on  an  average,  40  to  60  horse-power  for  eight 
or  nine  months.  It  is  not  attended  with  the  same  un- 
certainty as  to  the  amount  that  there  will  be  in  the  case 
of  the  Sterling  and  Belvidere  No.  2.  I endeavored  to 
impress  upon  the  commissioners  that  in  those  mills  there  was 
always  a contingency  which  a prudent  man  must  provide  for, 


1060 


Argument  of  George  O.  Shattuck. 


and  that  we  could  not  be  made  whole  unless  that  was  borne 
in  mind  in  determining  what  provision  was  to  be  made  for  us. 
To  a less  extent  there  will  be  the  same  uncertainty  in  this  mill. 

As  we  have  to  furnish  all  the  power  by  steam  in  many 
cases,  there  is  not  always  to  be  thfi  same  uncertainty  as  to 
the  amount  that  there  will  be  in  the  Sterling  mill  and  Belvi- 
dere  No.  2.  I don’t  think  it  worth  while  for  me  to  take 
time  in  further  discussing  the  cost  of  horse-power.  If  any- 
thing shall  be  added  in  the  argument  of  counsel  for  the  city, 
I may  desire  to  allude  to  it  hereafter. 

Mr.  Butler.  Well,  I call  your  attention  so  that  you  may 
have  it  now.  There  are  three  rights  taken  out  of  all  these  ; 
two  of  them  indefinite  rights,  that  I don’t  find  any  deed  for. 

Mr.  Shattuck.  If  you  will  refer  to  them  I shall  be  very 
happy  to  explain  them.  I shall  have  the  close,  I suppose, 
on  this  question.  I see  no  difficulty  whatever.  There  was 
great  difficulty  in  locating  the^land,  and  in  connecting  the 
deeds ; but  after  careful  investigation  it  seems  now  to  me  to 
be  clear ; but  if  there  are  any  objections  which  occur  to  you, 
of  course  they  will  be  stated  in  your  argument,  and  then  I 
will  endeavor  to  get  over  them.  . 

Mr.  Butler.  I give  you  notice  that  any  of  these  notes 
and  queries  are  not  part  of  the  testimony. 

Mr.  Shattuck.  You  mean  notes  in  here? 

Mr.  Butler.  Anything  which  is  not  a copy  of  a deed 
goes  for  nothing,  because  I cannot  tell  anything  about  them. 

Mr.  Shattuck.  There  are  some  of  these  cases  of  apparent 
difficulty.  I think,  for  instance,  that  Mr.  William  Sturgis 
made  a deed  in  which  he  recited  that  he  had  held  a mort- 
gage and  foreclosed  it.  But  there  was  no  assignment  of  the 
mortgage  to  him  on  record,  and  the  foreclosure  didn’t  appear  ; 
but  we  subsequently  found  that  the  equity  passed  through 
other  hands  to  the  same  party  who  took  the  conveyance  from 
Mr.  Sturgis.  Therefore,  we  didn’t  think  it  necessary  to 
introduce  the  question  of  mortgage. 

Mr.  Butler.  I only  pointed  it  out  so  that  there  may  not 
be  any  more  time  taken  to  look  up  deeds.  All  I want  is  the 
title  settled.  If  that  is  your  title  we  are  prepared  to  take  it. 

Mr.  Shattuck.  I don’t  mean  absolutely  to  conclude  my- 
self. I don’t  know  how  ingenious  counsel  for  the  city  may  be. 

Mr.  Butler.  It  is  not  a question  of  ingenuity,  it  is  a 
question  of  law. 

Mr.  Shattuck.  I don’t  mean  to  say  that  we  will  not  in 
any  event,  in  case  of  transfers,  put  in  another  deed. 

Mr.  Butler.  All  I can  say  is,  that  there  must  be  a time 
when  this  thing  shall  stop.  I have  given  notice  of  every- 
thing in  my  power. 


Argument  of  Hon.  D.  S.  Richardson. 


1061 


ARGUMENT  OF  HON.  D.  S.  RICHARDSON  IN 
THE  CASE  OF  MRS.  NANCY  L.  RICHMOND. 

I propose,  gentlemen,  to  call  your  attention  to  some 
general  considerations  which,  I think,  are  applicable  to  the 
case  of  Mrs.  Richmond.  She  owns  a dam  and  land  on  both 
sides  of  the  river,  and  an  island  in  the  stream,  all  capable  of 
being  used  in  connection  with  the  water-power.  The  first 
question  that  will  be  presented  to  your  mind  is,  what  was 
the  original  flow  of  water  in  that  river,  that  she  had  a right 
to  before  any  interference  was  made  therewith  by  the  taking 
by  the  City  of  Boston?  Now,  it  would  not  be  any  benefit 
to  her  or  you  for  me  to  argue  that  question  to  any  great 
extent.  You  have  had  the  question  most  carefully  argued, 
by  Mr.  Hodges,  on  the  Saxonville  case  ; you  have  had  it 
carefully  argued,  in  a little  different  manner,  by  Judge 
Abbott,  in  the  Talbot  case,  because  it  was  argued  there  in 
connection  with  the  supply  of  the  Concord  river ; you  have 
had  it,  perhaps,  more  fully  argued  than  in  either,  and  on 
some  different  evidence  in  the  Wamesit-dam  case ; and  any- 
thing I could  say  here,  in  connection  with  her  particular 
property,  would  hardly  alter  the  conclusion  that  you  would 
come  to  as  to  the  amount  of  water  that  originally  run  in  the 
river.  Whatever  it  was,  she  was  entitled  to  the  whole  of  it. 
Now,  what  property  had  she  first  in  use  in  connection  with 
the  use  of  that  water?  and,  second,  what  property  had  she 
which  she  could  change  by  the  addition  of  buildings  and 
machinery  so  to  use  it?  Both  of  these  considerations,  in 
my  mind,  are  exceedingly  important  in  estimating  her  dam- 
ages. I take  it  to  be  quite  clear  that  the  amount  of  water, 
which  she  had  actually  utilized,  was  about  a hundred  horse- 
power. I think  in  the  last  testimony  of  Mr.  Coburn,  where 
we  recalled  him,  and  went  over  the  items  of  power  which 
were  made,  that  his  old  wheels,  when  water  was  not  very 
frugally  and  carefully  used,  gave  96  horse-power.  The  num- 
ber of  wheels  he  gave ; their  condition  was  that  they  were 
not  the  best  of  wheels,  and  with  other  wheels  no  doubt  the 
water  might  be  used  to  better  advantage.  She  had  erected 
buildings,  and  put  in  machinery,  and  that  utilized  water,  and 
produced  the  income  which  the  uniting  of  the  power  and  the 
machinery  and  buildings  would  give  her.  That  is,  that 
water,  controlled  by  the  dam  and  utilized  by  machinery, 
stood  in  a different  relation  from  the  water  which  was  run- 


1062  Argument  of  Hon.  D.  S.  Richardson. 

ning  by  over  the  dam,  and  which  would  require  some  capital 
to  be  invested  to  get  an  income  from.  She  has  a right  to 
that  water  day  and  night.  The  cases  we  have  just  tried 
limited  the  rights  to  eleven  and  odd  working  hours  in  the 
twenty-four.  She  is  entitled  to  use  that  water-rights,  and 
just  so  much  more  should  be  added  to  the  damage  done  her 
as,  according  to  the  ordinary  business  of  life,  such  water 
would  be  used  nights. 

Take  it,  therefore,  that  she  has  100  horse-power  utilized, 
— taking  it  without  going  into  the  22  per  cent.,  as  we  did 
in  the  case  of  the  Wamesit  dam, — taking  it  at  what  my 
brother  Story  took  it  (at  one-fifth) , for  convenience  of  cal- 
culation, as  what  has  been  taken  in  the  other  cases,  — the 
City  of  Boston  has  taken  away  from  her  20  horse-power  that 
she  had  actually  appropriated  and  used  on  her  land  and  with 
her  machinery.  Now  there  comes  this  question.  My  brother 
Butler  will  say,  "Well,  she  has  got  more  horse-power  which 
is  not  used  and  is  not  worth  much  ; she  can  put  it  in  there, 
and  you  must  give  her  that  value.”  I don’t  believe  that  is  a 
fair  way  of  estimating  her  damages.  When  the  Concord 
supplied  four-fifths,  and  when  the  Sudbury  supplied  one- 
fifth  of  that  river,  you  are  entitled  to  treat  the  waters  at  the 
dam  of  Mrs.  Richmond  as  well  as  at  the  Talbot  dam,  as 
supplied  in  the  same  proportion  from  these  rivers.  This 
question  don’t  become  material  to  any  extent  at  the  Wamesit 
dam,  but  you  are  to  treat  that  100  horse-power  where 
there  is  no  limitation  on  the  rights  as  made  one-fifth  of  it 
by  the  Sudbury  water  and  four-fifths  of  it  by  the  Con- 
cord water ; and,  when  they  have  taken  away  the  Sudbury 
water,  they  have  taken  away  one-fifth  of  water  that  in 
the  course  of  nature  did  and  could  not  help  going  to  supply 
her  100  horse-power  which  she  has  used.  If  that  is  true, 
then,  if  she  has  had  20  horse-power  taken  from  the  100 
which  she  was  using,  it  was  her  great  good  fortune  that  she 
had  other  means  of  supplying  that  want ; but,  in  taking  that, 
she  injures  the  rest  of  her  estate,  by  lowering  the  water  that 
would  improve  it.  That  does  not  lessen  the  damage  that 
the  city  should  pay  her  or  the  value  of  what  it  has  taken. 

Twenty  horse-power  at  the  $100  estimate  would  give  Mrs. 
Richmond  $2,000  a year.  Reckoning  that  the  flow  of  water 
would  be  so  great  in  the  three  months  that  it  would  not  be 
of  any  importance  to  her,  then  take  out  one-fourth,  $500, 
for  that,  and  you  have  $1,500  a year  in  actual  value  that 
they  have  taken  away  from  her  wheels  and  her  mills,  in  the 
proportions  as  I have  said  before  — $1,500  annually  takes 
away  from  her  a sum  that  a capital  of  $25,000  only  will 
supply.  Now,  besides  that,  you  have  a further  supply  of 


Argument  of  Hon.  D.  S.  Richardson. 


1063 


water  that  belonged  to  her  dam  and  lands,  and  to  the  dam- 
age to  that  whole  available  supply  she  is  entitled.  What  did 
the  legislature  mean  when  they  asked  you  to  compensate  the 
owners  of  property  on  the  Concord  river  ? Did  they  mean 
only  that,  so  far  as  that  water  had  been  appropriated, 
you  should  estimate  damages?  Did  they  mean  that,  if  a 
person  had  a dam  and  a piece  of  land  that  was  worth 
$10,000  with  the  water,  because  the  water  would  increase 
the  value  of  the  land,  you  could  take  away  all  that  water 
and  pay  nothing,  and  say,  " Why,  you  never  had  appro- 
priated the  water  ; it  was  running  by  to  no  use  ” ? I say  that 
there  is  no  such  meaning,  and  every  person  who  had  a dam 
has  a right  to  the  value  of  the  water,  the  enhanced  value  of 
it  when  it  is  appropriated,  and  to  a less  value  for  that  which, 
by  any  ordinary  means  on  that  land,  he  could  appropriate 
and  utilize. 

This  estimate  is  based  upon  the  same  estimate  that  we 
have  had  before,  upon  the  ordinary  working-hours  of  the 
day.  A large  part,  more  than  half,  of  that  power  is  appro- 
priated to  paper-making,  the  rent  of  which  is  $3,000  a year 
to  her,  and  that  paper  business  permits  her,  requires  her,  to 
use  that  power  nights  as  well  as  days. 

In  this  connection,  one  word  as  to  the  consideration  of  the 
deed  which  was  put  in  of  the  half  of  this  property  owned 
by  Alanson  J.  Richmond.  It  was  put  in  for  the  purpose  of 
showing  that,  several  years  ago,  Mrs.  Richmond’s  husband 
paid  a sum  with  the  mortgages  on,  of  $15,000  for  half  of  it ; 
and  I suppose  this  evidence  was  put  in  with  a view  of  asking 
you,  that,  in  finding  her  damages,  you  be  governed  to  some 
extent  by  that.  I say  that  recent  sales  only  are  of  value  as 
to  the  market  price.  They  are  of  little  or  no  consequence 
in  any  of  these  cases,  because  none  of  the  parties  here  have 
put  them  in  except  as  incidentally ; and  see  how  absurd  it 
would  be  to  reckon  on  that  property  as  worth  $30,000  when, 
as  it  now  exists,  only  the  100  horse-power  appropriated  and 
let,  — and,  in  one  case,  only  a mill,  and  no  machinery  fur- 
nished,— it  shows,  as  a return,  $6,000  a year  income  and 
all  the  rest  of  the  power  and  the  rest  of  the  land  waiting  to 
be  improved  and  give  a like  return.  So  I say  it  is  no  guide, 
and  none  of  the  parties  in  these  cases  have  relied  upon  it  as 
a guide.  It  has  been  put  in  as  evidence,  but  it  is  so  insig- 
nificant that  you  never  will  consider  it. 

Taking,  then,  I say,  what  proportion  of  the  power  she 
used  that  has  been  taken  away,  giving  her  the  value  for  that, 
you  have  the  rest  of  the  power  which  she  has  by  the  posi- 
tion of  her  land  a right  to  the  benefit  of,  either  as  increas- 
ing the  value  of  that  land,  or  in  adding  some  weight  to  the 


1064  Argument  of  Hon.  D.  S.  Richardson. 


future  possible  improvements.  Her  case  is  situated  differ- 
ently from  any  other  case  on  the  river.  She  has  the  96 
horse-power  appropriated  ; she  has  the  balance  of  the  power 
with  ample  land  to  put  up  structures,  and  she  has  also  a 
canal  already  dug,  but  not  yet  in  use,  which,  with  the  addi- 
tion, as  the  witnesses  agree,  of  $1,000  can  be  made  a com- 
plete canal  for  use,  and  by  the  addition  of  a $3,000  wheel 
would  give  her  60  horse-power  more  to-day.  Well,  now, 
that  is  worth  a great  deal  more  than  water  which  you  could 
use  only  by  making  a canal ; it  is  partly  utilized  power,  and 
though  I admit  that  a less  «um,  a less  value,  should  be 
attached  to  it  than  that  which  is  appropriated  and  fitted  to 
run  machinery,  yet  it  is  of  considerable  value,  in  proportion 
as  it  can  be  easily  used  and  will  increase  the  value  of  the 
land  on  which  it  may  be  used.  She  has  the  land  and  the 
dam,  which  is  in  itself  the  first  appropriation  of  the  water, 
and  thus  she  has  the  right  of  appropriating  the  rest  of  this 
power,  and  it  is  valuable  and  increases  the  value  of  her  land 
to  the  whole  extent  of  the  ordinary  flow  of  the  river. 

Now,  what  I claim  for  her  is  such  payment  for  her  por- 
tion of  the  utilized  power  which  has  been  taken  away,  at  such 
rates  as  that  power  was  worth,  together  with  the  damage 
that  the  city  has  done  to  her  buildings  and  machinery,  by 
taking  the  power  away.  I claim  for  her  the  value  of  the 
power  up  to  50  or  60  horse-power  which,  by  the  addition  of 
$4,000  or  $5,000,  she  could  make  ready,  to  be  supplied  to 
anybody  that  wanted  it  in  the  same  manner  the  Wamesit 
Company  has  made  ready  to  supply  not  only  the  little  horse- 
power by  water  that  they  have,  but  also  376  horse-power  by 
steam.  These  she  is  entitled  to. 

Now,  how  much  water  is  there  there  ? That  is  the  great 
question.  I say,  tired  as  we  all  are  with  the  weight  and  extent 
of  this  investigation,  I would  not  endeavor  to  embarrass  ; I 
know  I could  not  help  you,  in  undertaking  to  define  exactly 
that  amount,  but  I can  give  you  some  suggestions  on  the 
subject,  so  far  as  my  case  is  concerned,  which,  perhaps, 
ought  not  to  be  omitted.  We  have  been  unfortunate,  I 
think,  in  this  and  the  other  case,  in  having  measurements 
along  the  line  of  this  river  only  in  the  dryest  time  that  has 
been  for  years.  It  is  a small  guide  to  the  quantity  of  water, 
and  I think  you  will  find  more  aid  from  Mr.  Hodge’s  case 
and  from  Mr.  Talbot’s  case  in  the  true  permanent  flow  over 
a series  of  years  than  from  measurements  made  on  the 
Wamesit  dam  or  on  the  Classic  dam.  We  have  made  meas- 
urements that  we  have  been  obliged  to  take  at  this  period 
of  time,  for  we  had  no  other.  There  have  been  measure- 
ments taken  at  the  Wamesit  dam  over  a period  of  two  or 


Argument  of  Hon.  D.  S.  Richardson.  1065 


three  years  before  this.  They  were  evidently  taken  for 
another  purpose,  I don’t  know  what.  They  are  put  in  here, 
and  you  are  asked  to  consider  them,  and  must  consider 
them ; but  I say  to  you  I don’t  see  how  you  can  take 
a measurement  made  for  two  or  three  consecutive  years, 
at  half-past  eight  o’clock  each  morning,  of  the  quantity 
of  water  flowing  over  the  Wamesit  dam,  and  at  no 
other  time  in  or  out  of  working  hours,  for  us  or  against 
us,  as  indicating  how  much  water  daily  flows  during  the 
year.  I shall  take  the  lower  and  the  higher  amount  by 
way  of  illustrating  what  there  seems  to  be  there.  Assum- 
ing what  Mr.  Frizell  says,  as  the  result  of  his  measurement 
during  this  short  and  this  dry  time,  we  have  at  the  Wamesit 
dam  220  cubic  feet  per  second  before  the  Sudbury  is 
diverted.  If  I am  not  wrong  in  my  calculations,  that  gives 
440  horse-power  at  Wamesit  falls.  I deal  in  figures  approxi- 
mately because  they  are  more  convenient.  I take  one-third 
of  that  as  Mrs.  Richmond’s  power  at  the  lowest  state  at  Massic 
falls.  I do  this  because  that  440  horse-power  at  25  feet  fall  at 
the  Wamesit  dam,  she  having  8 feet  fall,  gives  her  about  one- 
third,  or  146  horse-power ; so  that  if  you  find  that  it  would 
be  prudent  for  her  to  calculate  to  use  at  her  estate  only  the 
lowest,  the  minimum,  which  could  be  relied  upon,  you 
would  then  say  that  Mrs.  Richmond  has  146  horse-power, 
100  of  it  substantially  utilized,  46  more  that  can  be  made 
just  as  good  as  that  hundred  by  the  expense  of  $4,000  or 
$5,000.  One-fifth  of  the  value  of  that  she  would  be  entitled 
to.  If  it  is  as  low  as  that,  she  is  entitled  to  $100  a horse- 
power for  the  20  out  of  the  100  she  uses,  and  not  a great 
way  from  that  for  the  same  proportion  of  46  horse-power, 
over  and  above  that,  and  which  she  could  with  so  little 
expense  make  just  as  good  as  the  other.  The  city  have  no 
right  to  say  "Why,  we  have  taken  out  of  your.  100,.  20 
horse-power,  and  you  can  take  out  of  that  46,  that  20  horse- 
power, and  it  is  not  going  to  damage  you  so  much.”  I say 
the  city  is  to  pay  her  the  damages  that  were  done  to  her 
property  and  its  capacities.  The  damage  done  to  her  prop- 
erty was  taking  what  she  appropriated,  and  destroying  the 
capacity  of  improvement  of  the  rest,  what  we  could  make 
with  this  46  horse-power  over  and  above  what  we  have  used. 
But  I don’t  suppose  you  are  going  to  put  any  great  reliance 
upon  the  exact  estimate  of  220  horse-power  for  a considera- 
ble length  of  time.  You  are  going  to  compare  that  with  the 
sources  of  supply,  with  the  engineer’s  estimates,  with  the 
uses  to  which  the  water  has  been  proved  to  have  been 
applied  at  Saxonville  and  at  the  Billerica  dam,  and  with 
the  quantity  of  water  that  all  the  evidence  gives  you  infor- 


1066  Argument  of  Hon.  D.  S.  Bichardson. 


mation  of,  as  existing  in  the  stream.  You  take  it  as  evi- 
dence that  at  this  period  that  was  the  lowest  possible 
minimum  of  water  there.  You  never  can  go  below  that ; 
you  will  go  much  higher. 

Now  there  is  one  other  point  that  I wish  to  call  your  atten- 
tion to,  and  that  is  that  we  have  just  been  trying  a series  of 
cases  which  have  involved,  I confess,  positions  a little  differ- 
ent from  some  of  those  above  on  the  river,  because  there  has 
been,  in  the  nature  of  the  rights,  an  inducement  to  have  the 
quantity  more  or  less,  according  to  the  positions  you  took 
there.  You  have  in  the  Wamesit-dam  cases  a diversion  of 
288  cubic  feet,  an  amount  which  was  so  far  true  — which  was 
so  far  the  actual  supply  that,  until  the  interference  with  Bos- 
ton therewith,  the  owners  who  took  it  in  that  proportion  had 
that  supply  and  were  generally  satisfied.  You  have  got  to 
find  that  some  portion  of  that  amount,  more  or  less,  existed 
at  the  Wamesit  dam.  Now  for  such  period  of  time  as  you 
find  288  cubic  feet  exists  at  the  Wamesit  dam,  you  find  192 
horse-power  existing  at  Mrs.  Bichmond’s  dam.  All  these 
estimates  excluded  Hale’s  brook,  which  I considered,  there- 
fore, of  no  consequence  in  any  remarks  I make  here.  That 
was  taken  out,  and  it  was  of  but  very  small  amount.  From 
the  576  horse-power,  at  all  such  times  as  that  existed  at 
Wamesit  dam  and  supplied  the  other  parties  with  their  rights, 
Mrs.  Kichmond,  as  she  had  one-third  of  it,  would  have  192 
horse-power  at  the  dam  below ; 288  doubled  gives  us  the 
horse-power.  I don’t  state  these  with  exactness,  because  I 
suppose  here  is  a fall  of  twenty-four,  and  in  order  to  get 
the  576  horse-power,  we  should  have  it  on  a fall  of  twenty- 
five  feet.  I only  make  these  allusions  by  way  of  illustration, 
because  I cannot  tell  what  proportion  you  will  adopt.  Then 
I say,  that  in  the  lowest  estimate  of  power  there,  she  has  146 
horse-power.  The  city  have  taken  away  of  her  utilized 
power  twenty  horse-power  ; which,  at  the  rate  we  have  estab- 
lished in  the  other  cases,  damages  her  to  the  extent  of  $1,500 
annually,  or  $25,000,  and  that  is  allowing  she  is  not  damaged 
at  all  for  three  months  in  the  year.  She  has  forty-six  horse- 
power left,  which,  with  a small  expense,  she  can  make  as 
useful  as  that.  Deducting  that  expense  from  the  capital,  and 
she  is  entitled  to  the  same  proportion  in  damages  for  that. 
But  if  you  adopt  the  288  feet,  or  any  intermediate,  or  any 
greater  amount  of  water,  of  course  her  damages  are  increased 
in  a like  proportion.  In  the  case  of  the  288  feet  appropri- 
ated at  the  Wamesit  dam,  she  would  have  100  horse-power 
utilized,  and  she  would  have  92  horse-power  besides  that. 
Now,  it  is  not  for  the  city  to  say  that  it  will  pay  her  for  the 
cheapest  and  poorest  part  of  her  property  that  they  have  taken. 


Argument  of  Hon.  D.  S.  Richardson. 


1067 


They  are  not  to  say,  when  they  take  it,  they  have  left  what 
she  has  utilized,  and  take  it  out  of  the  balance.  They  have 
taken  a proportion  of  all  the  water  she  used,  and  when  they 
have  taken  that  proportion  they  have  deprived  her  not  only 
of  the  value  of  the  water  as  it  stood,  but  they  have  de- 
prived her  of  the  value  of  the  use  of  the  water  and  of  the 
capacities  which  her  land  had  of  being  largely  increased  in 
value  by  utilizing  that  water,  in  addition  to  the  opportunity 
of,  by  a small  outlay,  putting  that  water  in  condition  to  be  as 
valuable  as  the  already  utilized  water. 

I ought  not  to  take  up  any  more  of  your  time  in  her  case, 
except  to  say  that  you  will  find,  and  you  will  find  it,  no 
doubt,  not  from  the  evidence  on  her  dam  alone,  but  from  all 
the  evidence  in  the  case,  what  water  substantially  she  has  in 
connection  with  her  dam,  buildings  and  land.  You  will  find 
how  much  of  that  water  is  utilized,  and  how  much,  for  the 
interference  with  that,  is  to  be  paid.  You  will  find  how  much 
of  all  the  remainder  can  be  utilized  at  a reasonable  expense, 
and,  taking  out  that  expense,  allow  her  for  that  and  for  the 
damage  her  land  has  suffered  thereby.  I undertake  to  claim 
that  an  estate  like  hers,  situate  in  the  City  of  Lowell,  where 
we  have  increased  about  an  average  of  a thousand  inhabitants 
a year  down  to  this  time,  which  began  with  big  mills  and 
large  capital,  and  is  now  growing  with  small  mills  and  small 
capital,  is  not  only  exceedingly  valuable  to-day,  but  every 
day  that  Lowell  grows  is  going  to  be  more  valuable ; and 
when  you  look  at  her  case,  you  must  look  at  it  not  alone  in 
the  light  of  what  actual  income  or  money  you  take  from  her 
to-day,  but  what  capacities  you  take  away  from  her  estate  for 
all  future  time.  Take  away  the  water,  so  that  she  could  not 
have  any  power  there,  and  her  land,  which  in  connection  with 
the  power  is  exceedingly  valuable,  would  be  worth  nothing. 

I submit  to  you,  then,  gentlemen,  that,  without  under- 
taking to  guide  you  at  all  other  than  I have  with  these  few 
suggestions,  in  regard  to  the  quantity  of  water,  when  you 
find  that  quantity,  and  her  reasonable  opportunities  of  using 
it,  and  the  extent  to  which  she  could,  by  improvements  on 
her  land,  use  it,  you  will  find  such  a sum  as  the  city  has 
actually  damaged  her  in  the  property  so  far  as  used,  and  the 
value  of  the  whole  available  water,  used  or  not  used,  which 
has  been  taken  away  from  her  dam  and  land.  You  will  add 
to  that  sum  such  damages  as  you  think  she  has  sustained  in 
her  land  by  reason  of  the  diminished  capacity  of  that  land 
for  future  use  and  improvement,  and  therefore  in  diminished 
value. 

Mr.  Storey.  I used  one-fifth  in  my  argument.  I didn’t 
mean  to  make  any  distinction  between  that  and  22  per 


1068  Argument  of  Hon.  D.  S.  Eichardson. 


cent. , or  to  indicate1  that  I differed  from  Mr.  Shattuck  and 
Mr.  Eichardson  in  their  estimate  of  proportion. 

Mr.  Butler.  I want  to  call  the  attention  of  the  commis- 
sioners to  the  case  of  Harrington  vs.  the  County  Commission- 
ers of  Berkshire,  which  in  my  judgment  does  not  touch  the 
case  at  all,  but  I may  be  mistaken  about  it.  In  this  case, 
Harrington  had  had  the  road  laid  out  oyer  his  land  by  the 
County  Commissioners  — 

Mr.  Storey.  On  paper,  but  not  in  fact. 

Mr.  Butler.  Had  had  the  road  laid  out  over  his  land  by 
the  County  Commissioners,  and  had  had  a verdict  of  a jury 
giving  him  damages  for  that  laying  out,  and,  while  the  ques- 
tion was  pending  as  to  the  acceptance  of  that  verdict  — a 
question  of  law  — the  County  Commissioners  discontinued 
that  road  for  a good  reason,  and  undertook  to  plead  such 
discontinuance  in  suit. 

“ It  is  now  contended,”  says  Judge  Shaw,  “ for  the  respondents 
that  it  would  be  highly  unjust  and  inequitable  to  require  the  public 
to  pay  the  whole  value  of  the  land  for  a naked  right  or  privilege, 
which  the}’  have  never  used,  and  now  never  can  use  ; and  that  it  is 
equally  unjust  for  the  complainant  to  demand  a sum  of  money  by 
way  of  damage  for  a loss  which  he  has  not  and  cannot  sustain.  If 
there  were  any  middle  course  to  be  adopted,  if  any  apportionment 
could  be  made,  by  which  the  complainant  could  be  indemnified  for 
the  actual  trouble  and  expense  to  which  he  has  been  subjected, 
and  the  public  exempted  from  further  liability,  it  would  be  more  in 
accordance  with  principles  of  equity.” 

In  this  case  you  can  take  another  course  ; but  the  trouble 
was  here  that  they  could  not. 

“ But  there  seems  to  be  no  legal  principle  on  which  this  can  be 
done.  It  was  suggested  that  he  should  claim  damage  for  the  dis- 
continuance ; but  the  discontinuance,  as  it  relieves  his  estate  from 
a burdensome  service,  to  which  it  was  subject,  by  a perpetual 
easement,  is  a benefit,  and  not  a damage  ; indeed,  the  damage 
given  on  laying  out  the  road  is  a compensation  for  imposing  this 
service  on  the  land.  It  is,  therefore,  a question  of  legal  right  to 
the  sum  fixed  by  the  verdict,  and  the  adjudication  upon  it,  by  the 
Court  having  jurisdiction  of  the  subject;  and  it  appears  to  be  a 
necessary  consequence  that  the  complainant  is  entitled  to  the  whole 
amount,  or  to  no  part  of  it.  If  the  adjudication  discontinuing  the 
road  vacated  all  the  prior  proceedings,  including  the  verdict  and 
judgment  of  the  Court  of  Common  Pleas  accepting  it,  that  judg- 
ment is  in  effect  reversed  and  annulled,  and  then  ttife  complainant 
can  make  no  claim  under  it;  otherwise,  it  remains  in  full  force, 
and  lie  is  entitled  to  the  entire  benefit  of  it. 

“ Such  being  the  question,  the  Court  are  of  opinion  that  the 
petitioner,  on  the  return  and  acceptance  of  the  verdict,  acquired  a 


Argument  of  Hon.  D.  S.  Richardson. 


1069 


vested  right  to  his  damages,  and  that  the  subsequent  discontinu- 
ance of  the  highwa}7  did  not  divest  or  defeat  that  right. 

. . . “ The  Court  are,  therefore,  of  opinion,  that  when  the  high- 
way is  once  completely  established,  and  the  damages  of  the  land 
owner  settled  by  the  modes  pointed  out  by  law,  the  right  of  the 
public  to  a perpetual  easement  in  the  land  for  a highwaj7,  till  the 
public  shall  see  fit,  for  any  cause,  to  discontinue  it,  becomes 
complete,  and  the  right  of  the  owner  to  his  damages  or  compensa- 
tion for  the  lien  or  qualified  right  acquired  by  the  public  in  his 
land  becomes  vested.” 

The  difficulty  was,  that  under  the  law  there  was  no  way 
of  getting  at  it.  That  is  what  the  decision  here  is.  1 can- 
not conceive  how  that  bears  upon  this  case,  because  here  we 
are  upon  the  question  which  would  have  been  before  the  jury, 
provided,  before  the  jury  had  tried  and  passed  upon  the 
question  the  road  had  been  discontinued.  Then  the  damages 
would  not  have  vested,  clearly,  under  this  opinion. 

Mr.  Storey.  I think  they  would. 

Mr.  Butler.  Not  at  all.  They  say,  vested  by  the  ver- 
dict and  judgment.  There  was  no  way  of  getting  at  it. 
That  is  the  difference  between  that  case  and  this.  It  would 
be  exactly  like  this  case,  supposing  that  after  you  got  your 
verdict,  and  we  paid  over  the  money,  we  should  come  to  the 
conclusion  to  take  the  Merrimack  river,  and  never  take  the 
Sudbury  river.  We  could  not  go  back  again  then,  because 
there  would  be  no  way  of  reversing  it,  no  way  of  getting  at 
it.  This  case  is  not  the  slightest  authority,  in  my  judg- 
ment. 

Mr.  Storey.  The  Court  said,  whether  they  used  it  or 
not,  they  must  pay  for  it. 

Mr.  Butler.  They  said,  whether  they  used  it  or  not, 
they  must  pay  for  it,  when  they  had  judgment  against 
them. 

Mr.  Storey.  It  was  because  of  this  decision  that  that 
statute  was  passed,  providing  that  the  damages  shall  not  be 
paid  until  the  property  is  divested. 

Mr.  Butler.  No  ; it  was  because  they  had  got  into  such 
a state  that  they  could  not  get  at  it. 

Mr.  Storey.  That  decision  establishes  the  principle, 
that  the  damages  are  fixed  the  moment  the  title  is  divested, 
and  the  statute  says  that  the  damages  shall  not  be  paid  until 
actual  entry  is  made  upon  the  property. 

Mr.  Butler.  It  was  put  upon  the  ground  that  they  could 
not  get  at  it. 

[. Adjourned  to  Friday , Nov.  3,  at  9b  o'clock.'] 


1070 


Argument  of  Hon.  J.  G.  Abbott. 


* 


Boston,  November  3,  1876. 

The  commissioners  met  at  half-past  nine  o’clock. 

ARGUMENT  OF  HON.  J.  G.  ABBOTT. 

I want  only  to  make  two  or  three  remarks,  Mr.  Chairman, 
and  shall  be  very  much  within  the  time  I required  when  here 
a few  days  since.  I shall  take  half  an  hour,  and  Brother 
Hodges  says  he  may  be  a little  more  at  length ; and  there- 
fore I shall  make  the  few  remarks  I propose  to  make  first. 

I have  examined  the  evidence  carefully,  so  far  as  I can  get 
it  from  the  reports,  bearing  upon  the  relative  amounts, — that 
is,  the  amount  produced  at  Framingham  and  the  amount  at 
the  Wamesit  dam  or  at  the  Massic  dam,  whichever  it  may 
be,  — and  also  the  theory  put  forward  by  Mr.  Herschel  in  ref- 
erence to  water-courses  in  the  high  lands,  further  up  the 
streams,  producing  less  than  water-courses  further  down.  I 
have  to  say  upon  that  subject,  sir,  after  examining  the  testi- 
mony, and  that,  especially,  from  Mr.  Fteley,  and  the 
argument  of  my  friend  Mr.  Shattuck  upon  that  matter,  that 
I have  nothing  to  add.  I don’t  believe  anything  I could  add, 
after  looking  at  it  carefully,  would  tend  to  lighten  counsel 
to  any  considerable  extent,  and  therefore,  with  this  tribunal, 
I don't  think  it  necessary  to  weary  you  or  weary  myself  by 
saying  anything  on  that  subject,  and  only  a few  words  upon 
the  question  of  the  amount  that  has  been  shown  to  have 
flowed  over  the  dam  at  Massic  or  the  Wamesit  dam, — the 
measurements  made  at  the  Massic  dam  being,  1 think,  from 
July  6th  to  September  24th,  and  on  the  other  dam,  by  taking 
the  height  of  the  water  for  a greater  length  of  time  on  the  top 
of  the  dam.  As  I understand  the  result  of  that  measure- 
ment, at  the  Massic  falls,  it  was  this,  that  during  the  time  I 
have  mentioned,  this  season,  beginning  at  some  time  in  July 
and  extending  sometime  into  September,  the  minimum 
flowing,  after  deducting  the  water  taken  by  the  city  at  that 
point  of  time,  would  be  about  180  cubic  feet  a second.  1 
believe  I am  right,  Mr.  Shattuck. 

Mr.  Shattuck.  Yes,  sir. 

Mr.  Abbott.  That  is  the  minimum,  as  I understood  the 
evidence,  — though  it  is  unfortunate  in  that  respect,  perhaps, 
that  I didn’t  hear  the  witness.  The  whole  effect  of  the  testi- 
mony was  that  180  cubic  feet  per  second  was  what  could  be 
used  during  the  twelve  hours,  and  there  was  an  addition  to 


Argument  of  Hon.  J.  G.  Abbott. 


1071 


that  of  a considerable  amount,  — 50  or  60  cubic  feet,  more  or 
less, — running  over  the  dam  the  other  twelve  hours.  Am 
1 right,  Mr.  Francis,  in  this  respect? 

Commissioner  Francis.  Yes  ; they  gave  what  would  run 
during  the  day,  — during  the  working  hours,  — at  so  much, 
and  then  there  was  some  used  during  the  night  in  addition. 
It  is  in  the  printed  evidence. 

Mr.  Butler.  Flowed  away,  but  it  was  all  measured. 

Mr.  Shattuck.  It  was  180  cubic  feet  per  second  during 
the  working  hours,  allowing  for  the  usual  amount  that  went 
over  after  the  working  hours. 

Mr.  Abbott.  That  is  what  I understood,  and  the  witness 
said  that,  after  the  gates  were  shut  down,  he  found  during 
the  other  hours  there  were  50  or  60  cubic  feet  a second  run- 
ning ; so  you  have  for  the  working  hours,  in  addition  to 
what  may  have  flowed  over  the  Massic  dam  in  the  night  dur- 
ing this  season  and  during  that  particular  time,  a minimum 
of  180  cubic  feet  per  second. 

Now,  gentlemen,  of  course  I need  not  say  and  repeat 
what  my  brother  Shattuck  has  put  before  you  so  fully  and 
carefully,  — the  utter  — I was  going  to  say  uselessness,  but 
perhaps  that  is  a strong  word,  of  a measurement  made 
during  this  season,  beginning  with  July  6th,  and  ending 
August  24th,  for  the  purpose  of  telling  us  really  the  practi- 
cal value  of  the  water,  or  of  the  amount  of  water  through  a 
great  length  of  time. 

Mr.  Butler.  You  don’t  get  that  quite  right,  Brother 
Abbott,  I think.  It  is  from  July  6th  to  September  25th. 

Mr.  Abbott.  That  I thought  I said,  sir. 

Commissioner  Francis.  You  said  August  the  last  time. 

Mr.  Abbott.  That  is  merely  a slip,  sir.  Sept.  24th  I 
had  stated  it  before.  Now,  Brother  Butler  has  put  in  the 
rainfall  for  the  three  months  of  July,  August  and  Septem- 
ber, through  which  the  experiments  extend,  — not  quite  three 
months,  beginning  a little  after  the  first  of  July,  and  ending 
before  the  last  of  September,  — and  has  compared  them  with 
the  average  of  years.  It  turns  out  undoubtedly,  looking  at 
that  comparison,  that  the  average. of  those  three  months  is  a 
little  larger  than  the  average  for  the  last  nineteen  years  ; 
but  it  comes  from  this,  sir,  that  during  that  time  the  ordi- 
nary condition  of  affairs  has  been  reversed.  The  month  of 
August,  as  we  all  know, — you  may  take  a series  of  ten 
years,  or  flvq  years,  I think,  certainly  ten  years,  for  any 
series  of  years,  — the  month  of  August  will  produce  more 
rain  than  any  other  month  in  the  year,  and  the  month  of 
July  very  much  less.  In  this  year  it  turned  out  that  the 
month  of  July  was  double  — say,  in  round  numbers,  double 


1072 


Argument  of  Hon.  J.  G.  Abbott. 


— the  usual  average  ; and  the  month  of  August  not  quite  a 
third,  not  a quarter  even,  of  the  usual  average  ; and  the 
month  of  September  about  the  usual  average,  though  the 
rain  all  fell  towards  the  latter  end  of  the  month,  at  any  rate 
to  a large  extent,  so  that  you  didn’t  feel  the  elfects  of  it, 
and  couldn’t  feel  the  effects  of  it  in  this  measurement  of  the 
flow  of  the  river.  Now  we  haven’t  given  to  us  the  month  of 
May  and  the  month  of  June,  and  I have  not  been  able  to 
obtain  the  rainfall  for  either  of  those  months.  I only  know 
this,  and  I can  appeal  to  your  experience  upon  the  matter, 
that  the  month  of  May  and  the  month  of  June  were  certainly 
(that  is,  after  the  11th  or  12th  of  May,  six  or  eight  weeks, 
up  into  July)  exceptionally  dry.  It  affected  all  the  crops; 
it  affected  the  hay  crops,  especially,  all  through  this  part  of 
New  England,  from  the  fact  that  those  months  were  excep- 
tionally dry.  You  find  then  a dry  time,  to  use  the 
ordinary  expression,  running  for  nearly  eight  weeks,  — so  dry 
that  it  affected  the  surface  of  the  ground  very  much,  and 
the  crops  to  a very  great  extent.  You  had  at  that  time  the 
longest  days  in  the  year,  and  of  course,  the  most  exposed 
to  the  sun,  and  the  largest  amount  of  evaporation ; then  in 
the  following  July  a very  large  amount  of  rain,  — more  than 
double  the  usual  quantity  ; and  then  again  followed  by  a very 
little  or  no  rain  in  August ; and  then,  in  September,  excep- 
tionally dry  up  to  past  the  middle  of  the  month ; certainly 
the  heavy  rains  began  past  the  middle  of  September.  All  I 
wish  to  say,  Mr.  Chairman,  to  you,  and  to  you  too  gentle- 
men, is,  that  this  season,  so  different,  so  exceptional  from 
the  ordinary  common  rule  of  the  rainfall,  is  not  a safe  guide 
to  go  by  when  you  are  dealing  with  a great  length  of  time. 
Take  this  case  : you  have  a dry  time,  extending  over  six  or 
eight  weeks,  and  at  a time  when  the  sun  has  the  most 
power,  the  days  are  the  longest,  and  the  whole  surface  of  the 
ground  becoming  perfectly  dry,  dry  and  hot,  and  extending 
into  July,  and  then  this  large  amount  of  rain;  a very  great 
portion  of  it  would  be  absorbed,  undoubtedly,  and  never  get 
into  the  stream.  By  looking  at  one  of  those  charts  it  shows 
that  you  had,  say,  a particularly  heavy  rain  at  one  point  of 
time,  in  July,  two  inches  or  more  I think,  and  it  didn’t 
affect  the  stream  at  all ; you  had  to  wait  until  you  got  the 
next  large  rain,  towards  the  end  of  July,  before  yon  got  the 
effect  in  the  streams  in  any  way  whatever,  because  the  first 
was  taken  up  in  filing  up  the  dry  surface  that  had  been 
made  by  the  long  eight  weeks  of  dry  weather. 

Now,  all  I mean  to  suggest  upon  this  is,  that,  taking  that 
line  of  measurement  precisely  as  it  is  proved  to  have  been, 
it  affords  you  no  guide  for  all  the  future,  and  you  would  be 


Argument  of  Hon.  J.  G.  Abbott. 


1073 


doing  a great  injustice  if  you  undertook  to  take  it  as  any 
conclusive  rule  to  find  out  what  the  state  of  things  would  be 
through  a series  of  years.  From  these  measurements  you 
have  the  result,  that  180  cubic  feet  per  second  during  work- 
ing hours,  and  something  more  during  the  night,  flowed  in 
the  river  at  that  time  for  less  than  three  months.  I have 
taken,  as  you  will  see,  because  I thought  it  was  the  fairest 
way  of  getting  at  the  fairest  result,  the  rainfall  — not  for 
this  time  that  they  have  given  the  measurements ; I have 
taken  the  rainfall  for  the  months  of  June,  July,  August  and 
September,  for  four  months,  not  less  than  three  months  — 
as,  upon  the  whole,  the  four  dry  months.  I said  to  you 
what  I say  again  : I do  not  take  this  time  as  giving  the  exact 
limits  on  the  one  side  or  on  the  other,  because  I am  sure 
your  experience  will  show  that  the  limits  will  vary  one  way 
or  the  other.  That  is,  it  may  not  begin  until  nearly  July, 
and  it  may  extend  nearly  to  the  end  of  October.  In 
dealing  with  this  matter  you  must  take  a limit  somewhere, 
and  that,  upon  the  whole,  was  as  good  a limit  as  I could 
get.  I took  the  six  months  from  May  to  October  inclusive, 
and  the  four  months  from  June  to  September  inclusive.  I 
then  took  the  rainfall  for  ten  years ; but  on  going  back,  Mr. 
Chairman  and  gentlemen,  to  the  nineteen  or  twenty  years 
that  are  given,  I think,  of  the  Cochituate  rainfall,  you  will 
find  that  the  results  are  substantially  the  same ; the  varia- 
tion — and  I had  it  gone  over  in  the  rough  — is  very 
small,  so  slight  that  I didn’t  think  it  necessary  to  give  it  in 
detail.  But  it  has  an  important  bearing  in  this,  that  you 
show  that,  as  far  as  you  can  go  back,  the  averages  ob- 
tained are  pretty  nearly  the  same ; and  so  that  you  may 
depend  upon  the  averages  taken  for  any  given  time. 

Now,  I take  six  months,  twenty-five  per  cent,  of  the  rain- 
fall as  the  amount  we  get  the  benefit  of  in  the  stream ; and 
I think  I have  a right  to  say  from  the  experience  I have  had 
in  trying  these  cases,  that  for  the  six  months  is  smaller  than 
the  ordinary  amount  allowed.  I took  twenty  per  cent,  for 
the  four  months  ; that  certainly  is  smaller  than  the  evidence 
would  warrant,  because  Mr.  Mills  testifies  to  from  twenty- 
five  to  thirty  per  cent,  for  the  four  months, — the  New  York 
experiments  gave  twenty-eight  per  cent.,  — and  it  is  almost 
a matter  of  common  knowledge  (of  course  it  is  an  ap- 
proximate way,  all  agree),  that  here  in  New  England, 
here  in  Massachusetts,  with  the  ordinary  water-shed,  you 
may  save  out  generally  twenty-five  per  cent.  It  was  put 
in  another  case  before  you,  by  one  of  the  witnesses,  at 
twenty-five  per  cent.,  in  a case  in  this  immediate  neighbor- 
hood. 


1074 


Argument  or  Hon.  J.  G.  Abbott. 


Well,  I took  it  at  twenty  per  cent.  Now,  the  result 
I get  for  the  four  months,  after  deducting  the  water-shed 
taken,  is  271  feet  per  second  for  the  four  months. 

Now,  sir,  it  seems  to  me  that  the  two  results  put  together 
tend  rather  to  strengthen  my  proposition  than  to  weaken  it ; 
and  I will  tell  you  why.  You  have  here  the  measurement 
taken  a little  below  us,  — there  is  a little  addition,  but  not 
enough  to  make  any  great  amount  of  difference,  — r-  which 
gives  180  cubic  feet  per  second  as  a minimum,  as  I say  upon 
the  whole,  in  the  worst,  and  an  exceptionally  bad  time  ; at 
any  rate,  I am  inclined  to  think  as  bad  a time  as  you  can  find 
under  any  circumstances.  You  find,  taking  the  average  of 
years  for  four  months,  you  got  271  cubic  feet  per  second; 
you  find  the  minimum  in  one  exceptionally  bad  three  months 
is  180  for  the  twelve  hours,  and  something  in  addition  for 
the  other  part  of  the  time.  Now,  I say,  sir,  that  this 
really  strengthens  rather  than  weakens  the  position  that  I 
took  here,  that  in  dealing  with  this  matter  you  must  deal 
with  lengths  of  time  and  with  the  average  coming  from  those 
lengths  of  time.  I did  not  claim,  as  you  recollect,  I could  not 
claim  upon  the  evidence,  that  271  leet  was  furnished  all  the 
time  during  the  four  months  ; I do  not  think  it  was.  I think 
more  was  furnished  at  some  times  and  less  at  others,  un- 
doubtedly. In  such  seasons  as  we  have  had  this  last  season, 
there  was  a larger  amount  furnished  at  some  times  and  less 
at  others.  Now,  I want  to  call  your  attention  to  another 
fact  in  this  connection.  Talbot’s  flannel  mill  with  two  wheels 
gives  him  from  187  to  190  horse-power;  that  would  require 
208  cubic  feet  per  second  over  an  eleven  foot  fall.  Now, 
Mr.  Talbot  tells  you  that  there  has  been  but  twice  since  he 
has  owned  these  mills,  on  two  occasions,  and  then  only  for  a 
day  or  two,  and  not  for  a whole  day  at  a time,  when  he  has 
not  had  sufficient  water  to  use  those  wheels  clear  up  to  their 
full  power.  One  of  those  occasions  was  in  the  winter  of 
1874-75, — that  very  dry  winter  which  ran  into  January. 
The  city  took  on  the  21st  of  January,  because  there  was 
danger  of  a water  famine  here,  and  in  the  February  follow- 
ing two  things  happen.  In  January  and  February  Mr. 
Faulkner  was  obliged,  that  winter,  to  use  his  steam  for  the 
first  time  in  winter.  Mr.  Talbot  for  the  first  time  in  his  life, 
since  he  has  been  at  Billerica,  for  a day  or  two  during  that 
time,  when  the  dry  winter,  which  was  extraordinary,  and  the 
taking  by  the  city,  all  conspired,  for  two  or  three  afternoons 
as  he  put  it,  a very  short  time  he  had  to  throw  off  some  of 
his  machinery  in  his  flannel  mill,  showing  what  I want  to 
call  your  attention  to  here,  that  this  time  for  which  we  have 
the  measurements  wTas  an  exceptionally  dry  time  and  an  ex- 


Argument  of  Hon.  J.  G.  Abbott. 


1075 


ceptionally  extraordinary  time  in  that  respect.  The  next 
time  was  in  the  month  of  September,  about  the  time  that 
you  were  up  there  in  the  latter  part  of  August,  or  the  first 
part  of  September  — the  second  time,  when  an  exceptionally 
dry  time  was  upon  us  — and  all  the  water  was  taken  by  the 
city  ; then  for  two  or  three  days  in  the  afternoon  he  was  ob- 
liged to  throw  off  a little  of  his  machinery.  During  that 
time,  the  dryest  time  with . one  exception  that  has  ever 
occurred  on  that  river  for  the  last  forty  years,  since  Mr. 
Talbot  has  been  there,  it  brought  about,  from  the  scarcity  of 
water,  what  has  existed  there  but  once  before,  and  that  was 
in  the  winter  of  1875,  and  for  an  hour  or  two.  You  find 
this  fact  then,  proved,  that  however  dry  your  times  may  be 
ordinarily,  with  these  two.  exceptions,  you  have  208  or  more 
cubic  feet  per  second  as  a minimum.  You  have  never  got 
down  below  that  minimum  for  the  driving  of  that  mill  except 
on  those  two  occasions,  and  then  only  for  a few  hours  in  the 
course  of  the  day.  This  shows  clearly  and  conclusively  to 
my  mind  that  there  must  have  been  during  the  working 
hours  of  the  day  accumulated  more  than  the  180  cubic  feet 
per  second,  certainly  up  to  208  cubic  feet,  for  the  running  of 
this  mill,  except  during  those  days  in  August  and  September, 
when  in  the  afternoon  it  got  a little  lower.  That  is  all  I 
desire  to  say  on  that  matter  in  addition  to  what  my  friend 
Shattuck  has  said  on  the  other  side,  and  other  gentlemen  ; 
and  I adopt  what  he  has  said,  for  it  seems  to  me  to  be  very 
pertinent  and  striking,  and  well  put.  I desire  now  to  make 
a few  remarks  upon  the  law  that  my  friend  here  put  in  since 
his  argument  was  made,  and  which  since  it  has  been  furnished 
I have  examined. 

Mr.  Builer.  Before  you  go  from  that,  do  you  want  to 
change  your  figures  and  tables  in  your  other  argument,  show- 
ing what  is  the  reliable  flow  of  water  at  Billerica  mills,  what 
may  be  relied  upon?  I do  not  mean  in  exceptionally  dry 
times,  but  what  may  be  usually  relied  on. 

Mr.  Abbott.  No,  sir.  I claim,  on  the  contrary,  on  the 
whole,  that,  on  all  the  evidence  we  have  in  this  case,  those 
results  are  substantially  the  only  thing  you  can  reljr  upon, 
taking  through  a series  of  years,  and  I think  these  measures,  as 
far  as  they  go,  tend  to  strengthen  rather  than  weaken  those 
tables.  I ought  to  have  said  one  thing  more,  and  you  have 
now  called  it  to  my  attention.  I am  inclined  to  think  I may 
have  erred  against  myself  in  this  way,  in  not  claiming  a long 
enough  time  of  deprivation  of  water  for  Mr.  Talbot.  You 
recollect  that  I claimed  for  Mr.  Faulkner,  that  there  were  six 
months,  from  May  to  October  inclusive,  when  the  water 
would  be  taken  from  him,  and  then  in  addition  some  time  in 


1076 


Argument  of  Hon.  J.  G.  Abbott. 


the  winter.  I am  inclined  to  think,  and  I want  your  atten- 
tion, because  I know  you  will  desire  to  give  us  all  our  rights, 
to  the  force  and  effect  of  this  testimony  of  Mr.  Tilton’s, 
which  was  put  in  by  Mr.  Shattuck  — 

Mr.  Shattuck.  Mr.  Tilton’s  testimony  was  put  in  by 
the  city. 

Mr.  Abbott.  I thought  it  was  put  in  by  you,  although 
I knew  the  measurements  were  taken  by  Brother  Butler’s 
direction.  I am  inclined  to  think  the  force  and  effect  of  that 
testimony  is  to  show  that  Mr.  Talbot  will  be  affected  by  this 
diversion  more  than  the  six  months  in  the  year,  and  I make 
the  suggestion  to  you,  and  I want  you  to  consider  it.  I was 
a little  surprised  at  some  of  the  measurements  on  the  dam, 
I confess,  during  some  of  the  months,  and  I am  inclined  to 
think  the  diversion  will  take  water  from  Mr.  Talbot  more 
than  six  months  during  the  year,  and  that  there  will  be  times 
in  the  winter  months  when  he  will  be  affected  considerably. 

Now,  sir,  in  reference  to  the  law ; on  looking  at  the  cases 
I think  you  wTill  find  what  I indicated  before,  that  so  far  as 
the  power  to  sell  by  a corporation  is  concerned,  all  those 
cases  deal  substantially  with  the  selling  of  the  franchise, 
and  a selling  of  the  land,  which  is  so  clothed  with  the 
franchise  that  it  is  impossible  for  the  corporation  to  go  on  with 
their  business  after  it  is  sold.  All  those  cases  refer  to  and 
deal  with  an  actual  sale  of  the  franchise.  Now  the  difference 
between  those  cases  and  our  case,  — and  as  I said  to  you, 
this  very  deed  to  Mr.  Talbot  was  sustained  by  the  Supreme 
Court  in  the  case  of  Talbot  and  Hurd,  although  the  canal 
then  was  in  full  life, — is  this,  that  Mr.  Talbot  buys  property 
subject  to  this  franchise,  not  undertaking  to  put  an  end  to  or 
to  interfere  with  the  franchise,  but  subject  to  it  and  leaving 
the  franchise  absolutely  intact,  and  with  the  provision  made 
that  he  bought  only  the  property,  that  was  not  necessary  to 
exercise  that  franchise  ; the  land  bought  is  to  be  used  subject 
to  that  franchise  as  long  as  it  exists.  That  is  the  difference, 
and  1 need  not  do  more  than  indicate  it  to  the  chairman. 

Then  in  reference  to  the  other  class  of  cases,  sir,  and  to  the 
claims  made  that  the  Commonwealth,  having  granted  to  the 
Middlesex  Canal  the  franchise  to  take  property  for  one 
public  purpose,  has  a right,  at  a subsequent  time,  to  grant 
to  another  independent  corporation  the  right  to  take  that 
same  property  without  a farther  payment  of  damage,  whether 
the  purpose  and  object  of  such  taking  is  the  same  or  entirely 
different.  The  first  criticism,  Mr.  Chairman,  upon  that 
claim  is  this,  that  the  objects,  the  uses,  must  be  substan- 
tially the  same.  That  is  to  say,  if  you  take,  for  example, 
land  for  a common  highway,  where  it  is  supposed  the  land- 


Argument  of  Hon.  J.  G.  Abbott. 


1077 


owner  may  receive  the  benefit  from  the  highway,  from  his 
land  abutting  upon  it,  and  an  easement  is  taken  merely,  not 
the  ownership  of  the  fee,  can  you  appropriate  the  easement 
to  another  and  different  use?  Now,  although  the  courts 
have  said  that  while  the  highway  exists  the  Commonwealth 
may  permit  the  laying  down  of  a horse  railway  on  the  land 
taken  for  the  road,  they  have  never  gone  so  far  as  to  say  the 
Legislature  may  grant,  without  any  farther  compensation,  the 
right  there  to  dig  a canal  and  to  turn  a common  road  into  a 
water-way,  to  be  used  by  boats  instead  of  by  common  teams. 

Mr.  Butler.  But  they  have  turned  a canal  into  a railroad 
in  Blackstone. 

Mr.  Abbott.  Undoubtedly  ; but  there  the  difference  would 
not  be  as  in  the  case  I put.  With  railroads  and  canals 
except  at  stations  there  is  no  benefit  from  them  to  the  land- 
owners.  They  have  never  gone  so  far  as  to  permit  a common 
highway  to  be  turned  into  a steam  railway  even,  without 
further  compensation.  Now,  here  is  a new  use,  not  the  use 
of  the  water  on  the  land,  as  in  the  case  of  the  canal,  but  it  is 
an  absolute  taking  away  of  the  water  from  the  land. 
Take  the  question  of  damage,  there  will  be  very  different 
considerations  bearing  upon  one  case  than  there  might  be  in 
the  other.  That  consideration  might  be  entirely  sufficient ; 
but  there  is  another  reason,  and  it  seems  to  me  one  entirely 
controlling  whatever  may  have  been  the  rights  of  the  Common- 
wealth. I do  not  concede  by  any  means  that  they  had  any  such 
right  to  take  this  property  and  grant  it  to  the  City  of  Boston 
without  payment  of  damages,  if  the  Middlesex  Canal  Corpo- 
ration had  been  in  full  life  at  the  time  of  the  taking;  that 
state  of  things  did  not  exist.  The  Middlesex  Canal  franchises 
had  been  taken  back  by  the  Commonwealth  ; they  had  been 
ended  by  the  Commonwealth ; they  no  longer  existed ; 
so  at  the  time  of  the  grant  to  the  City  of  Boston  you  may 
look  upon  that  grant  precisely  as  if  the  grant  to  the 
Middlesex  Canal  had  never  existed,  because,  supposing  the 
Middlesex  Canal,  instead  of  buying  the  land,  had  merely  got 
an  easement  to  use  the  water  for  a certain  purpose,  that  ease- 
ment was  at  an  end ; the  franchise  to  use  it,  that  was  at  an 
end  ; where  was  the  property?  Why,  it  reverted  to  the  orig- 
inal owners  ; it  had  gone  back.  Now,  can  there  be  any  case 
produced, — certainly  there  is  none  produced  here,  — where 
after  the  franchise  has  been  ended  by  the  Commonwealth,  has 
been  taken  back,  and  the  corporation  put  an  end  to,  and  the 
right,  whatever  it  may  be,  to  the  land  has  reverted  to  the  orig- 
inal land-owners,  — where  there  has  been  a subsequent  grant 
of  the  same  property  by  the  Commonwealth  without  compen- 
sation to  be  paid  anew?  Has  there  been  any  case  without 


1078 


Argument  oe  Hon.  J.  G.  Abbott. 


the  payment  of  damages  for  the  new  taking?  In  that  respect, 
I say  this  case  is  as  wide  as  the  poles  are  apart  from  the  cases 
cited  by  my  friends  on  the  other  side.  That  is  all  I desire 
to  say  because  it  is  not  necessary  to  go  over  matters  where 
they  have  been  gone  over  by  my  friend  who  preceded  me. 

There  is  one  case  I want  to  call  your  attention  to  upon 
another  point,  which  I did  not  see  had  been  cited.  I mean 
upon  the  question  whether  the  City  of  Boston  is  responsible 
for  all  the  water  above  their  taking.  That  is,  not  for  what 
they  may  probably  take,  but  for  all  of  it.  In  the  case  of 
Ham  and  JSalem,  100  Mass.  350, — that  case  was  this;  the 
water  board  took  land  for  a conduit  for  the  City  of  Salem,  and 
almost  under  precisely  the  same  provisions  as  are  made  for 
the  taking  of  this  property.  The  City  of  Salem  took  the  land 
for  the  conduit  and  described  it,  and  there  stopped.  The 
petitioner  made  his  claim  for  damages,  and  the  answer  of  the 
City  of  Salem  was  twofold.  The  petitioner’s  claim  was  that 
they  must  pay  actually  for  the  land  just  exactly  as  if  it  was 
carved  out,  and  he  had  not  any  possible  right  of  using  it  or 
passing  over  it.  The  answer  was  .twofold,  as  I have  said  : 
first,  we  will  take  away  the  fences  and  give  you  the  right  to 
pass  over  it  as  you  wish  ; the  next  was,  that  the  purpose  for 
which  it  was  taken,  to  build  a conduit  underneath  and  draw 
water  through  it,  does  not  interfere  with  the  land  for  any  uses, 
because  we  take  an  easement  simply ; and  that  taking  is  not 
inconsistent  with  the  owners’  use  of  the  land  for  all  other 
purposes,  such  as  passing  over  it.  The  argument  here  was 
that  the  city  could  not  and  would  not  take  all  the  water,  and 
so  ought  not  to  pay  for  what  they  could  not  take  nor  use. 
The  argument  there  was,  the  city  have  only  taken  an  ease- 
ment in  the  land  for  a certain  purpose,  and  cannot  prevent 
the  owner  from  using  it  in  any  maimer  not  inconsistent  with 
that  easement ; and  some  of  these  cases  were  cited  where  the 
court  held  (I  believe  you  cited  one,  Brother  Butler,  in  your 
brief)  that  the  owner  of  the  fee  in  the  land  over  which  a turn- 
pike was  laid  out,  could  maintain  an  action  of  trespass  for  tak- 
ing the  srass.  Taking  that  class  of  cases,  the  city  claim  it  had 
taken  simply  an  easement,  and  the  owner  has  the  right  to  use 
the  land  for  all  purposes  not  inconsistent  with  the  use  of 
the  easement.  The  court  held  the  city  must  pay  for  the  land 
without  any  reference  to  the  use  to  be  made  of  it,  or  the  use 
that  could  be  made  of  it  within  the  purpose  for  which  it  was 
taken  — even  going  further,  and  holding  that  the  city  could 
not  convey  to  the  original  owner  a right  to  pass  and  repass 
over  the  canal.  I think  the  case  has  a bearing  upon  the  ques- 
tion 1 have  referred  to. 


Argument  of  Edward  F.  Hodges,  Esq.  1079 


SUPPLEMENTARY  ARGUMENT  OF  EDWARD  F. 
HODGES,  ESQ. 

Probably,  gentlemen,  it  would  be  very  seemly  for  me  to 
say  to  you  that  I should  leave  this  case  with  the  arguments 
that  have  been  made,  and  certainly  that  I felt  it  was  very 
presumptuous  in  me  to  undertake  to  better  the  positions  that 
have  been  assumed  and  maintained  by  counsel  for  petitioners 
in  the  other  cases  cognate  to  the  one  I represent.  But  the 
cause  I urge  before  you  justifies  me,  perhaps,  in  two  aspects, 
in  soliciting  a further  hearing.  The  question  we  are  con- 
sidering is  simply  and  absolutely  vital  to  the  industry  my 
client  is  prosecuting ; and  the  principles  upon  which  he  is 
entitled  to  recover  differ  in  some  respects  from  those  that 
are  presented  by  the  proofs  and  records  in  the  other  cases. 
I may  be  permitted  to  recall  what  I said  in  the  opening 
argument,  that  my  client  owns  the  whole  of  this  river,  not 
complicated  by  any  joint  ownership  or  associated  rights.  In 
this  view  we  have  before  us  a simple  question  : what  has 
the  city  done  to  the  injury  of  the  petitioner?  Before 
we  enter  upon  the  new  matter,  permit  me  to  revive  in  your 
recollections  the  exact  issues  that  were  discussed  and  con- 
sidered at  the  principal  argument.  The  right  appropriated 
and  represented  by  the  amount  of  water  available  for  use 
furnished  by  Sudbury  river,  was  then,  as  now,  the  matter  to 
be  ascertained  and  appraised  ; and  that  was  maintained  upon 
the  two  sides  by  proofs  of  various  forms  and 'force.  We 
showed  what  power  we  had  used  for  many,  many  years  ; years 
antedating  all  the  records  of  rain-gauges,  and  of  statistics 
concerning  the  amount  of  water.  We  maintained  our  issue 
further  by  showing  what  to-day  we  used,  not  by  the  measure 
of  the  water,  but  by  the  measure  of  the  power  the  water  ex- 
erted upon  our  machinery,  and  in  that  respect,  abandoning 
every  theory  dependent  upon  statistics,  and  applying  and  ap- 
propriating simply  the  concrete  coarse  facts  manifested  in  the 
work  of  every  day  and  year  of  our  use  of  the  water.  On  the 
other  hand,  it  will  be  borne  in  mind  that  our  positions  in  this 
respect  were  in  no  particular  controverted  by  evidence  on  the 
part  of  the  city.  The  evidence  thus  introduced,  and  not  con- 
tradicted, was  met  with  no  other  argument  than  this,  that  you 
were  to  consider,  measure,  and  award  compensation  for  the 
amount  of  water  the  city  intended  to  take  at  the  dates  rvhen,  in 
the  future,  it  should  be  taken.  That  argument  was  able,  and 
was  clearly  presented  by  the  counsel  for  the  city  in  the  close. 


1080  Argument  or  Edward  F.  Hodges,  Esq. 


I controverted  it  as  best  I might ; and  the  case,  as  it  was  then 
represented,  both  by  proof  and  argument,  1 was  contented 
to  leave  for  your  consideration  and  decision.  Now  the  case 
has  assumed  another  aspect ; the  issues  are  changed,  and  the 
controversy  qualified  by  new  testimony  introduced  on  the 
part  of  the  city  in  other  cases,  and  which  I cannot  ask  you 
to  eliminate  from  your  considerations  when  you  come  to  in- 
vestigate the  particular  case  now  under  discussion.  This 
testimony,  thus  introduced  on  the  part  of  the  city,  bears 
upon  the  proofs  we  have  made  concerning  the  amount  of 
power  furnished  to  us  by  the  river,  and  likewise  develops 
new  legal  positions  having  important  relations  to  our  rights ; 
both  the  facts  and  the  law  thus  insinuated  into  our  case  we 
ask  an  opportunity  to  answer. 

After  the  very  lucid  opinion  of  the  commissioners,  record, 
p.  828,  denying  the  right  of  the  city  to  prove  its  intentions 
concerning  the  taking  of  the  water  in  future,  and  the  probable 
dates  of  such  takings,  the  city  practically  changes  front,  and 
assumes  a new  position.  That  is  to  say,  instead  of  asking 
you  to  consider  proof  of  the  purpose  of  the  city  to  allow  the 
water  to  run  in  its  accustomed  channel  for  many  years  next 
succeeding,  and  when  at  length  it  is  diverted  then  to  adjust 
your  award  for  damages  to  such  qualified  and  remote  appro- 
priation, they  now  ask  you  to  consider  the  character  of  the 
stream,  the  use  of  the  water,  and  other  cognate  facts  which 
probably  affect  the  limit  and  extent  of  the  use  of  the  water 
by  the  city.  In  other  words,  instead  of  proving  what  the  city 
intends  to  do,  they  ask  you  to  decide  what,  from  the  nature 
of  existing  things,  the  city  in  all  probability  will  do?  It  is 
not  for  me  to  tell  the  able  strategist  who  leads  the  city  forces, 
that  change  of  front  in  the  presence  of  the  enemy  is  justified 
only  when  alternated  with  defeat.  And  such  a change  ! At 
first  you  were  called  upon  to  decide  future  intentions  upon 
present  proof.  Now  you  are  requested  to  settle  future 
probabilities  without  evidence. 

In  short,  you,  gentlemen,  are  now  solicited  to  assume  the 
character  and  role  of  prophets,  to  throw  the  light  of  proph- 
ecy upon  the  future,  "to  cast  the  water  of  the  land,”  and 
tell  us  what  is  to  be  done  by  the  city  of  Boston  in  the  years 
that  are  to  come  ; not  what  they  now  intend  to  do,  but  what 
we  are  to  suppose,  from  the  nature  of  things,  will  be  done. 

Now,  gentlemen,  this  will,  in  one  aspect,  seriously  affect 
the  rights  of  my  clients,  and  therefore  I ask  you  to  examine 
with  me  the  new  facts  bearing  upon  the  matter  of  quantity 
and  upon  this  new  view  of  the  law  that  is  to  guide  and  con- 
trol your  deliberations ; and  in  doing  this,  while  1 am  ready 
to  accept  as  we  have  done  through  this  case  the  abundant 


Argument  of  Edward  F.  Hodges,  Esq.  1081 


courtesies  of  the  counsel  for  the  city,  in  this  particular  I 
think  I am  asking  to  be  heard  as  of  right,  and  not  ex  gratia . 

I will  endeavor  to  express  my  views  as  briefly  as  is  con- 
sistent with  clearness  ; but  I must  crave  some  indulgence,  in 
view  of  the  character  and  quality  of  the  proofs,  for  the  need- 
ful consumption  of  your  time,  though  I trust  I shall  not 
dwell  " at  length  upon  the  questions,”  as  my  brother  Abbott 
kindly  indicated  his  desire  that  I should.  For  my  tedious- 
ness I ask  your  indulgence.  I speak  in  the  performance  of 
my  duty,  as  you  listen  and  judge  in  the  performance  of 
yours.  And  first,  let  us  deal  with  the  new  evidence.  This 
relates  to  two  branches  of  our  case ; first,  the  amount  of 
water  or  the  amount  of  the  power,  which  I consider  to  be 
the  same  thing,  furnished  by  Sudbury  river  to  the  use  of  the 
petitioner ; and,  next,  the  value  of  it ; that  is,  the  value  of 
the  power  as  it  is  represented  through  steam  as  its  substi- 
tute. I may  take  occasion  to  speak  later  of  this  second 
aspect,  but  it  will  be  with  great  brevity.  The  main  question 
of  fact  is,  what  is  the  amount  of  power  supplied  by  Sudbury 
river?  The  proof  upon  this  branch  of  the  case  is  presented 
before  you  in  a double  aspect ; first,  with  the  view  of  ascer- 
taining the  proportional  quantity  furnished  by  Sudbury 
river  to  the  volume  of  Concord  river  ; the  next,  the  absolute 
quantity  furnished  by  Sudbury  river  at  Saxonville.  Now, 
the  question  of  proportion  is  very  important  to  all  mill- 
owners  below  us ; but  to  us  it  is  unimportant  except  as  it 
may  relate  to  or  illustrate  the  proof  of  actual  power  supplied 
by  the  river. 

In  respect  to  these  proportions  there  are  certain  things 
which  mark  the  value  of  these  proofs.  They  consist  of 
measurements  taken  in  an  exceptionally  dry  time,  of  less 
than  three  months  in  one  river,  and  three  years  in  the  other, 
of  which  three  years  for  one  year  and  a half  they  were 
accurately  taken,  and  for  the  remaining  year  and  a half 
measurably  accurately,  and  measurably  inaccurately,  gener- 
ally generously  I may  say.  Now,  assuming  that  the 
measures  are  substantially  accurate,  the  time  over  which 
they  extend  is  too  short  for  you  to  enter  them  as  conditions 
in  your  calculations,  or  to  entertain  them  as  reliable  elements 
of  judgment  in  a matter  that  extends  over  all  time.  As 
"long  as  wood  grows  and  water  runs  ” has  been  for  centuries 
in  our  English  tongue  used  as  the  comprehensive  figure  of 
speech  expressing  all  the  future  of  property  interests.  You 
are  to  measure  this  thing  forever , and  in  a variable  subject 
like  this,  measures  taken  for  three  years  in  one  place  and 
three  months  in  the  other  are  altogether  inadequate  guides 
and  unreliable  data.  I allude  to  this  calculation  of  propor- 


1082  Argument  of  Edward  F.  Hodges,  Esq. 


tions  between  the  two  rivers  only  as  it  may  bear  upon  the 
question  of  the  amount  of  water  at  Saxonville,  being  in  all 
other  respects  indifferent  to  the  relative  volume  of  the  rivers. 
I may,  however,  in  passing,  remark  that  with  those  tables 
before  us  and  the  mysterious  lines  drawn  by  the  city  engi- 
neers, showing  just  the  relations  of  the  one  to  the  other, 
with  this  all  before  you,  all  purporting  to  show  the  exact 
proportions,  yet  in  their  examinations,  direct  and  cross,  once, 
twice  and  six  times  did  those  cautious  and  accurate  engineers 
refuse  to  say  that  absolutely  Sudbury  river  furnished  but 
one-ninth  or  one-tenth  of  the  power  of  Concord  river  at 
Wamesit  falls.  They  not  only  did  not  say  that  it  furnished 
that  proportion  and  no  more,  but  they  either  refused  to 
answer  those  questions,  evaded  them,  or  answered  with 
some  conditions  and  reservations.  This  refusal  was  in 
good  faith ; these  gentlemen  knew  that  these  measure- 
ments were  entirely  unreliable  bases  for  calculations  for 
future  years.  The  flow  of  a river  cannot,  in  the  nature  of 
things,  be  preclicte.d  with  certainty  ; the  nature  of  the  subject 
forbids  such  prediction  ; the  multitude  and  uncertainty  of  the 
conditions  involved  in  the  problem  make  it  impossible  by 
any  law  of  science  yet  revealed.  But  it  may  be  approxi- 
mately and  substantially  ascertained  by  calculations  based 
upon  the  area  and  character  of  the  water-shed  and  the  rain- 
fall thereon,  measured  for  a long  series  of  years,  so  long 
that  the  average  may  be  supposed  to  be  fairly  qualified  by 
each  of  the  many  phenomena  that  occur  in  the  procession  of 
time,  and  under  varying  atmospheric  influences.  From 
such  calculations  all  engineers,  even  those  that  directed  the 
structure  of  the  Roman  aqueducts,  have  made  their  plans,  — 
not  because  they  were  absolutely  sound,  but  because  they 
were  substantially  reliable  and  were  the  best  that  could  be 
obtained. 

Take  any  area  or  water-shed  and  assume  that  the  rain- 
fall for  successive  years  is  absolutely  the  same,  and  yet  it 
will  present  a variety  of  flow  as  great  from  year  to  year  as 
between  two  dilferent  water-sheds.  Why?  Because  the 
amount  of  water  that  flows  in  the  stream  and  goes  over  the 
dam  is  limited  and  measured  not  alone  by  the  water-shed 
and  the  rainfall,  but  by  the  order  in  which  the  rainfalls 
succeed  each  other,  the  intervals  between  the  showers,  the 
atmospheric  conditions  ; and  even  not  that  alone,  the  simple 
quantity  of  electricity  in  the  atmosphere  and  its  temperature 
influencing  the  evaporation  will  qualify  the  whole  thing,  and 
all  these  forbid  an  absolute  equality  of  flow  from  year  to 
year.  In  this  view,  gentlemen,  and  dealing  with  this  sub- 
ject, we  must  take  what  is  nearest  to  accuracy,  and  not 


Argument  of  Edward  F.  Hodges,  Esq.  1083 

demand  the  certainty  of  mathematical  demonstrations ; and 
we  turn  again  to  the  original  proposition  that  the  rainfall 
and  the  water-shed  of  Sudbury  river  must  influence  you  in 
ascertaining  the  amount  of  its  flow  and  the  available  power 
furnished.  True,  the  new  witnesses  produced  by  the  city 
say  there  is  proof  better  than  these;  viz.,  "measurements 
taken  for  a great  many  years.”  I shall  take  occasion  to 
show  that  something  very  like  those  measurements  have 
been  proved  by  us,  extending  since  the  year  1829  ; but 
before  doing  that  I wish  to  call  your  attention  to  the 
measurements  that  were  made  and  testified  to  by  the  city 
witnesses,  and  to  the  statements  of  these  witnesses.  I wish 
it  understood  that  all  this  time  I am  dealing  with  this 
matter  only  as  it  relates  to  the  absolute  amount  of  water 
furnished  by  Sudbury  river. 

On  page  806  is  the  first  table,  and  from  that  807  the 
second,  and  808  the  third,  or  rather  the  continuation  of  the 
same  table.  On  page  806  is  the  table  of  the  measurements 
for  1874.  With  the  exception  of  one  year,  that  is  the  lowest 
rainfall  in  the  nineteen  years  preceding ; and  during  that 
time,  in  the  month  of  September,  there  was  50  horse- 
power by  these  tables.  That  is  to  say,  the  average  figuring 
up  will  show  that  there  was  50  horse-power  in  the  lightest 
month  that  year,  which  was  in  September. 

Commissioner  Russell.  50  horse-power  at  Saxonville? 

Mr.  Hodges.  Yes,  sir.  All  of  my  remarks  have  appli- 
cation to  Saxonville  only.  50  horse-power,  night  and  day, 
all  the  time,  was  present,  an  average  of  seventeen  cubic  feet 
per  second ; seventeen  cubic  feet  per  second,  in  our  fall, 
makes  50  horse-power.  It  is  almost  three  horse-power  per 
cubic  foot ; it  is  a fraction  less  than  three. 

Mr.  Hutler.  What  do  you  call  your  fall? 

Mr.  Hodges.  Twenty-six  feet. 

Commissioner  Francis.  That  is  the  theoretical  horse- 
power, I suppose  ? 

Mr.  Hodges.  Yes,  sir  ; the  theoretical  horse-power.  In 
this  matter  making  no  allowance.  I think  I shall  explain 
that  in  a few  moments  to  the  satisfaction  of  the  commis- 
sioners. The  next  smallest  month  is  October,  when  there 
was  60  horse-power ; the  next  is  November,  when  there 
was  65  horse-power;  the  next  is  July,  when  there  was 
125  horse-power  ; the  next  is  August,  156  horse-power;  and 
December,  166  horse-power.  The  others  very  abundant, 
1100,  800,  700,  900  and  600.  The  next  year  — and  again 
I would  remark  that  we  are  dealing  with  years  where  the  rain- 
fall is,  by  the  showing  of  the  city,  six  inches  upon  the  average 
less  than  the  nineteen  years  preceding— the  next  year  the  rain- 


1084  Argument  of  Edward  F.  Hodges,  Esq. 


fall  is  45.49,  and  that  year  the  smallest  flow  was  in  January. 
The  testimony  will  show  that  it  was  not  taken  until  Feb- 
ruary or  March  with  substantial  accuracy.  In  January,  the 
horse-power  was  only  37.  The  next  lowest  month  is 
again  September,  when  it  was  73,  and  then,  not  to  detain 
you  with  the  details  of  these  figures,  then  follow  114,  140, 
230,  208,  500,  500,  etc.  In  1876,  down  until  past  the 
middle  of  September,  the  lowest  months  there  are  September 
and  July,  in  which  the  average  is  66  horse-power;  June, 
78;  August,  143;  and  from  that  upward;  January,  229. 

Now,  gentlemen,  from  these  very  figures,  taken  by  the 
parties  in  behalf  of  the  city,  it  appears  that  in  three  ex- 
ceptionally dry  years,  in  a semi-decade,  six  inches  less  than 
the  average,  there  is  furnished  to  my  client  nearly  all  the 
power  he  has  claimed  before  you  he  had.  Our  claim  is  that 
we  have  and  employ  335  horse-power  for  between  eight  and 
nine  months  in  the  year  in  the  daytime,  and  that  we  employ 
in  the  night-time  about  fifteen  per  cent.  less.  I say  employ, 
that  is,  we  have  and  have  employed. 

The  three  and  one-half  months  remaining  furnish  us  with 
power  for  Mill  No.  2,  requiring  85  horse-power.  If  there 
are  days  during  an  excessive  drought  when  this  power  is  not 
supplied,  there  will  be  other  days  during  these  months  when 
Mill  No.  1 can  run,  and  thus  make  up  the  average.  So  that 
these  measurements  do  not  derange  our  claims  — based  as 
our  claims  are  upon  the  rainfall  as  it  averages  for  twenty 
years  — which  will  fully  supply  the  power  for  Mill  No.  2 in 
the  three  dry  months.  Take  twenty  or  thirty  years  together 
and  you  will  find  those  measures  taken  by  the  city  do  not  in 
any  respect  depreciate  the  value  of  the  testimony  we  have 
taken,  or  substantially  attack  the  positions  upon  which  we 
rely. 

I was  about  to  speak,  when  I commenced  to  comment  upon 
the  tables,  of  this  better  quality  of  proof  that  the  witnesses 
spoke  of,  viz.,  actual  measurements  for  a long  series  of  years, 
which  they  regard  as  better  data  than  rainfall  and  water- 
shed. We  have  commenced  in  1829,  and  shown  measure- 
ments made  from  that  day  to  this  by  witnesses  who  dealt 
with  the  subject-matter,  who  gauged  the  amount  of  power 
by  actual  use,  and  who  certify  what  power  we  derived  and 
utilized  from  the  water.  I do  not  desire  to  repeat  that  or 
comment  upon  it  beyond  calling  your  attention  to  the 
fact.  Just  here,  responsive  to  the  suggestion  of  Mr. 
Francis,  I would  say  that  I do  not  refer  to  or  deal  with  the 
theoretic  but  the  absolute  power,  because  the  proofs  we 
have  introduced  for  the  most  part  bear  upon  the  amount  of 
power  applied  to  our  shafts,  and  not  to  the  theoretic  power 


Argument  of  Edward  F.  Hodges,  Esq.  1085 

on  the  wheels.  Mr.  Webber  measured  the  power  required 
to  conduct  our  machinery ; and  you  will  bear  in  mind  that 
it  demands  335  horse-power,  — 325  as  measured  by  him,  — 
and  it  was  estimated  by  the  witnesses  that  there  was  ten  more 
that  he  omitted  to  measure,  making  335  horse-power  re- 
quired by  the  machinery  in  use.  We  showed  you  that  the 
machinery  in  our  mill  was  as  substantially  carried,  before 
the  taking  by  the  city,  by  water  for  the  times  we  have 
asserted.  The  old  machinery  carried  by  water  required  less 
power  than  we  now  need  by  about  50  to  75  horse-power; 
but  that  is  more  than  compensated  by  the  addition  of  four 
feet  to  the  fall  and  the  use  of  turbine  in  place  of  the  three  old 
breast-wheels.  If  that  is  made  clear,  I have  no  desire  to 
proceed  further  with  that  point.  I think  that  the  absolute 
proof  of  machinery  run  by  water  in  our  mills  justifies  us  in 
asserting,  not  as  matter  of  theory,  but  as  matter  of  proof, 
that  we  run  our  mills  eight  and  a half  to  nine  months  in  the 
year  by  water,  and  in  this  wise.  All  the  mills  up  to  eight  and 
a half  months,  the  lesser  mill,  No.  2,  requiring  85  horse- 
power, we  run  substantially  the  rest  of  the  year.  In  other 
words,  we  can  run  Mill  No.  1,  requiring  240  horse-power, 
eight  and  a half  months  in  the  year,  and  Mill  No.  2,  requir- 
ing 85  horse-power,  the  whole  year ; and  that  is  our  claim 
for  which  we  ask  you  to  pay,  — this,  too,  exclusive  of  our 
claim  for  the  use  of  the  power  by  night.  We  further  assert, 
in  response  to  this  testimony  introduced  on  the  part  of  the  city, 
that  our  coal  record,  or,  more  properly  speaking,  our  record  of 
the  uses  of  our  machinery  since  the  record  was  kept,  exactly 
supports  this  assertion.  I refer  to  pages  336,  7,  8 and  9 of 
the  record  for  some  tables  and  problems  that  I wrought  out 
in  explanation  of  this  position.  I ask  your  attention  for  a 
moment  to  what  might,  unexplained,  be  misleading,  on  page 
339.  At  the  end  of  paragraph  No.  3,  on  sheet  4,  where  I 
undertook  to  deduce  the  whole  power  for  twenty  years  by 
comparison  with  this  written  record,  and  I endeavored  to 
state  that  our  machinery  was  run  of  the  time  by  water 
and  of  the  time  by  steam,  it  is  so  printed  that  I 
am  not  sure  that  you  will  understand  my  work.  If  your 
Honors  will  take  a minute  of  that  place,  you  will  observe  it 
when  you  come  to  see  it — page  339,  the  end  of  paragraph 
No.  3,  and  just  above  the  place  where  “ problems”  is  first 
printed.  You  will  observe,  Mr.  Russell,  "water  11.15, 
steam  4.15.”  They  were  written,  and  intended  to  be  placed, 
the  11  over  the  15  and  the  4 over  the  15.  It  is  the  result  which 
the  calculations  made  justify,  and,  I venture  to  say,  they 
are  unanswerable.  By  those  calculations,  I think  I demon- 
strate that  for  twenty  years  we  run  our  machinery  by  water 


1086  Argument  of  Edward  F.  Hodges,  Esq. 

^ of  the  time,  and  by  steam  T4^  of  the  time ; that  is  to  say, 
that  such  would  have  been  the  result  if  a record  had  been 
kept  during  the  fifteen  years  prior  to  1870,  and  the  results 
had  been  measured  by  and  corresponded  with  the  rainfall  of 
those  years.  I took  the  rainfall  of  the  whole  twenty  years 
and  averaged  the  power  produced,  and  estimated  our  work 
by  a comparison  with  the  figures  of  the  record  which  we 
kept,  and  to  that  comparison  and  the  deduction  drawn  from 
it  I have  seen  no  answer  of  any  kind.  Now,  we  say  with 
these  witnesses,  — men  employed  on  the  waterfall  for  nearly 
fifty  years,  and  this  record  of  the  use  of  water  and  steam,  — 
we  present  to  you  measurements  for  "a  long  series  of 
years,”  measurements  that  the  city  experts  say  are  more 
reliable  than  any  calculations  of  theory.  True  they  are  not 
witnesses,  employing  mechanism  designed  only  for  measur- 
ing water  by  the  drop ; but  they  are  witnesses  who,  with 
machinery  that  does  measure  the  drops  of  water,  — machinery 
that  they  are  expert  in,  with  which  they  have  gauged  this 
power,  as  with  it  they  have  earned  their  bread,  — and  they 
have  given  you  the  best  of  their  judgment.  You  will  bear 
in  mind,  gentlemen,  that  we,  thus  measuring  this  power  as 
it  is  applied  to  our  shafts,  casting  aside  all  allowances  for 
theoretic  horse-power,  show  you  what  wTe  do  with  the 
water,  and  ask  you  to  give  us  something  that  will  do  the 
same.  We  likewise  take  but  little  notice  of  the  theories 
and  statistics  of  the  water  in  the  dry  months  in  distinc- 
tion to  the  general  annual  average.  In  those  months 
we  only  claim  for  the  use  of  Mill  No.  2.  We  use  Mill 
No.  1,  requiring  240  horse-power  only  for  about  eight  and  a 
half  months,  leaving  three  and  a half  months  of  the  dry 
months  to  come,  in  which  we  use  the  second  mill.  For  that 
we  have,  upon  an  average,  85  horse-power. 

Now,  gentlemen,  referring  to  the  decision  of  the  com- 
missioners concerning  the  proof  of  what  the  city  is  to  use 
hereafter,  and  when  they  are  to  use  it,  not  proof  of  what 
they  intend  to  use,  but  keeping  within  the  law  as  expounded 
in  Dickinson  vs.  Fitchburg,  and  inquiring  what,  in  the  ordi- 
nary course  of  events,  it  is  supposed  they  will  use,  and  I 
feel  it  necessary  for  the  protection  of  my  clients’  rights  that 
I detain  you  a few  moments.  I will  commence  by  saying 
that  on  the  part  of  the  petitioners  we  say  you  are  to  treat 
this  subject  as  if  the  city  took  the  whole  water  from  the  day 
the  paper  was  filed  in  Middlesex  Registry,  and  we  recognize 
no  qualification  to  that. 

Mr.  Butler.  Not  even  the  million  and  a half  gallons? 

Mr.  Hodges.  When  I said  no  qualification,  I meant  in 
reference  to  the  other  parts  of  the  question,  General  Butler. 


Argument  of  Edward  F.  Hodges,  Esq.  1087 


The  million  and  a half  is  open,  as  I understand,  only  to  the 
question  whether  that  does  not  run  for  the  protection  of  the 
city  against  complaints  for  creating  a nuisance ; but  I shall 
submit,  with  as  much  grace  as  I do  to  anything,  to  the  decision 
of  the  commissioners  on  that  subject.  As  I understand  the 
case  of  Dickinson  vs.  Fitchburg  it  means  simply  this  : that 
where  the  Commonwealth  grants  out  its  eminent  domain  it 
does  it  always  with  a specific  purpose.  The  agent  to  whom 
it  commits  its  power  is  not  authorized  to  deal  with  it  at  will. 
It  is  not  a roving  commission,  that  authorizes  this  agent  to 
take  the  property  of  the  citizen  and  deal  with  it  just  as  he 
chooses,  but,  on  the  contrary,  it  is  an  authority  for  him  to 
take  for  a specific  purpose  a piece  of  property,  and  for  that 
specific  purpose  the  agent  may  use  it,  paying  the  damage  ; 
and  the  damages  are  measured  by  the  specific  purpose,  and 
that  is  all.  For  example,  when  the  City  of  Fitchburg  is 
under  the  law  authorized  — certain  conditions  being  granted 
— to  take  a piece  of  land  for  a highway,  it  is  not  by  law 
authorized  to  appropriate  that  land  for  a slaughter-house. 
When  the  citizen  asks  for  compensation  for  the  land,  the 
tribunal  to  whom  the  question  is  submitted  — in  this  case 
you,  gentlemen  — don’t  look  at  the  land  taken  by  the  city, 
and  say,  "Now  the  city  may  build  a slaughter-house  there, 
or  erect  any  other  nuisance,  to  the  injury  of  this  man’s  other 
land  ; ” but  you  open  the  commission  the  Commonwealth  has 
granted  to  the  City  of  Fitchburg,  and  see  in  it  that  the  city 
may  take  that  land  for  a highway ; and  then,  gentlemen,  you 
estimate  how  much  the  highway  will  injure  the  party  whose 
land  has  been  taken,  and  upon  whose  land  the  highway 
borders ; and  it  is  simply  with  the  view  of  ascertaining  the 
purposes  for  which  the  land  is  taken  that  you  open  the  com- 
mission, and  it  does  guide  and  should  guide  in  assessing  the 
damages.  But  let  us  pass  a little  beyond  this  and  suppose 
that  it  is  meant  under  that  decision  that  you  gentlemen  are 
to  look  into  the  supposed  purposes  of  this  highway.  Is  it 
your  business  again  to  throw  the  light  of  prophecy  upon 
time,  and  say,  Fifteen  years  hence  that  highway  will  be  used 
for  carriages  of  gentlemen,  and  twenty-five  years  hence  it 
will  be  used  for  market -carts,  and  twenty-five  years  beyond 
that  it  will  be  the  way  through  which  the  citizens  of  Fitch- 
burg will  transport  the  city  offal,  and  adjust  damages  ac- 
cordingly? No,  gentlemen,  you  are  simply  to  say  what  is 
the  purpose  for  which  the  City  of  Fitchburg  takes  that  land  ; 
they  take  it  for  a highway,  and  no  more.  Now,  gentlemen, 
that  case  might  be  likened  to  this,  and  so  likened  to  it  as  to 
rule  this,  if  it  had  been  in  this  wise  that  the  City  of  Fitch- 
burg asked  the  tribunal  to  deal  with  the  question.  Suppose 


1088  Argument  of  Edward  F.  Hodges,  Esq. 


they  had  claimed  that  they  had  taken  a strip  of  land,  four 
rods  wide,  for  a street ; for  the  present  there  was  no  need 
of  a street  at  all,  they  now  wanted  a sidewalk  only,  and  it 
was  all  they  should  then  build ; they  had  taken  the  whole 
land,  but  all  they  should  do  for  the  present  would  be  to 
build  a sidewalk  on  the  side  opposite  the  petitioners’  land, 
and  upon  such  representations  had  asked  the  tribunal  to 
consider,  in  assessing  damages,  that  for  twenty  years  the 
city  would  not  build  a highway  there  ; they  could  not,  in  the 
nature  of  things,  need  one  before  that  time ; at  the  end  of 
twenty  years  we  cannot  need  a highway  beyond  a certain 
point ; in  twenty-five  years  a certain  point  beyond ; and  so 
on  until  the  whole  land  taken  is  in  the  remote  future  made 
into  a highway ; but  inasmuch  as  we  foresee  we  shall  ulti- 
mately need  it,  we  condemn  it  now,  and  expect  to  pay  for  it 
damages  calculated  from  the  date§  of  our  probable  construc- 
tion of  the  road.  Would  the  Court,  would  you,  gentlemen, 
for  one  moment  take  requests  of  that  kind  into  considera- 
tion when  you  are  estimating  the  damages  ? Why,  certainly 
not ; it  is  not  reasonable. 

Perhaps  I may  be  permitted  to  illustrate  this  another  way 

— certainly  it  will  be  a more  satisfactory  expression  of  my 
views.  Suppose  the  city  takes  a portion  of  land  for  a park, 

— a portion  of  my  land,  — leaving  me  another  portion,  and 
when  I ask  for  damages  they  say,  "We  have  taken  3,000 
acres  of  land  for  a park,  including  yours  and  the  land  of  a 
hundred  other  citizens.  Now,  it  is  perfectly  obvious,  from 
the  course  of  events,  that  we  shall  begin  our  park  at  the 
water-side  in  Dorchester,  and  the  construction  cannot  reach 
your  place  for  fifteen  years,  and  until  then  we  will  neither 
fence  in  your  land  nor  deny  you  the  privilege  of  doing 
anything  you  choose;  you  may  enjoy  its  use  as  owner; 
you  may  pasture  it  with  geese,  if  it  suits  your  pleas- 
ure.” Is  that  to  be  considered  in  estimating  our  dam- 
age? Let  us  see  where  the  right  would  be.  The  city  takes 
our  land  to-day,  and  says  this  in  opposition  to  our  claim  for 
damages.  In  the  mean  time  the  city  goes  on,  increases  the 
value  of  this  property,  and  at  the  end  of  twenty  years  the 
property  is  worth  four  times  as  much  as  it  would  be  estimated 
to  be  worth  to-day.  The  city  has  availed  itself  of  the  right 
to  take  our  land  at  prices  to-day  and  reduce  our  prices  by 
interest  or  in  any  other  mode  by  which  the  tribunal  may 
reduce  it,  by  the  assertion  that  in  all  probability  it  will 
not  deprive  us  of  the  use  of  it  for  some  years  to  come.  Now, 
gentlemen,  it  does  not  seem  to  me  that  such  would  be  the 
course  of  logic  of  any  tribunal  in  the  world  who  are  called 
upon  to  estimate  damages  for  property  taken  under  eminent 


Argument  of  Edward  F.  Hodges,  Esq.  1089 

domain,  or  otherwise  in  invitum.  I repeat  that,  in  my  judg- 
ment, the  case  of  Dickinson  vs.  Fitchburg  does  not  rule  our 
case  if  interpreted  in  any  other  way  than  this,  viz.,  the  tri- 
bunal will  inquire  for  what  general  purpose  the  eminent  do- 
main is  exercised,  but  not  how  it  is  to  be  exercised.  It  will 
judge  whether  land  is  taken  for  a highway,  a school-house, 
a city  hall,  or  a fort,  but  will  not  inquire  when  either  is  to 
be  constructed  or  the  details  of  construction.  It  will  assess 
damages  in  view  of  the  subject  or  purpose  for  which  the 
power  is  granted,  without  regard  to  the  manner  in  which  it 
may  be  exercised  or  the  times  when  its  exercise  shall  be  per- 
fected. The  tribunal  will  open  the  power  of  the  city  and 
see  that  it  takes  that  land  for  a highway,  and  doesn’t  take  it 
for  any  other  purpose,  and  assess  damages  accordingly.  In 
this  there  is  no  supposition  concerning  the  future ; there  is 
no  burden  of  forecasting  thrown  upon  the  commissioners ; 
they  have  to  estimate  the  value  of  the  thing  at  the  present 
time  of  the  hearing. 

But  suppose  the  city  is  right  in  its  view  of  the  law, 
and  that  you  are  to  inquire  when  and  how  the  city  is 
to  divert  this  water.  Let  us  for  a moment  consider  what 
you  are  to  believe  to  be  the  uses  to  which  the  city  are 
to  apply  the  right  that  they  have  taken  from  us,  and,  in 
doing  that,  bear  in  mind  that  it  is  the  right  that  the  city  has 
taken  and  the  right  that  you  are  to  estimate.  Now,  what  * 
are  we  to  suppose,  — placing  ourselves  in  the  position  of 
prophets, — when  are  we  to  suppose  the  city  is  to  divert 
this  water  ? — and  we  start  with  the  admission  that  the  city 
has  taken  the  right  to  take  the  whole  of  it,  always  excepting 
the  million  and  a half  gallons.  The  city  has  asserted  the 
right,  and  under  the  law  has  the  right,  to  take  the  whole  of 
it  at  any  moment.  She  is  laying  out  a great  deal  of  money 
with  the  view  of  utilizing  that  right,  and  she  comes  here 
professedly  willing  to  pay  to  my  client  the  value  of  that  right. 
We  then  deal  with  it  as  if  the  city  had  a right,  which  it 
had  paid  for  under  your  judgment,  and  in  the  use  of  which 
it  had  expended  a great  deal  of  money.  Now,  will  they  not, 
to  the  best  of  their  ability,  employ  that  right  to  a profit? 
Are  we  to  believe  that  the  city  has  done  all  this  without 
the  purpose  of  gaining  what  it  may?  Why,  gentlemen,  if 
the  city  only  wanted  twenty,  or  thirty,  or  forty  millions 
of  gallons  of  water  a day,  why  didn’t  they  have  an  act  that 
authorized  them  to  take  such  quantity  from  Sudbury  river, 
and  to  pay  for  it,  and  there  stop  ? They  can  measure  the 
forty  million  of  gallons  that  runs  in  their  aqueduct  as  well  as 
measure  the  million  and  a half  that  runs  in  the  natural  chan- 
nel of  the  river,  and  if  it  was  no  purpose  of  theirs  to  take 


1090  Argument  of  Edward  F.  Hodges,.  Esq. 


the  whole  of  this  water,  and  if  they  don’t  want  it  for  forty 
years,  why  be  at  the  expense  and  the  trouble  of  getting  from 
the  State  the  right  to  take  it?  Is  it  reasonable  to  suppose 
that  they  have  been  at  all  this  trouble  and  expense  to  get 
that  right  without  any  purpose  to  use  it? 

Again,  gentlemen,  Boston  has  to-day  undoubtedly  water 
enough  to  last  for  years  with  the  natural  increase  of  the  city, 
if  used  only  for  the  purposes  of  health  and  cleanliness ; but 
the  city  has  found  a profit  in  furnishing  water  to  steam  en- 
gines, it  has  found  a profit  in  furnishing  it  to  various- 
mechanical  uses,  and  it  proposes  to  go  on  and  earn  more  like 
profits.  Do  wTe  unjustly  interpret  the  motives  that  will  rule 
the  city  in  the  future,  when  we  assume  that  this  water  will 
be  sold  here  for  mechanical  purposes  when  the  higher 
demands  have  been  satisfied?  The  city  will  deal  with  this 
water  as  reasonable  men  deal  with  property  they  have  pur- 
chased, — they  will  utilize  it  as  best  they  may. 

May  we  not  approach  the  " ragged  edge  ” if  we  too  closely 
adhere  to  the  theory  of  the  city?  It  is  the  common  law  of 
bargaining  lor  the  purchaser  to  depreciate  the  purchase ; 
here,  in  obedience  to  such  ethics,  the  city  asserts  the  improb- 
ability of  her  taking  the  water  to  our  injury  for  half  a 
century.  If  you  accept  that  as  fact,  and  diminish  the  award 
accordingly,  the  city  will  have  made  its  bargain,  acquired  its 
* property,  and  will  proceed  to  use  it.  It  would  be  a glaring 
injustice  should  it  result  that  next  year  the  city  took  all  the 
water,  for  much  of  which  they  had  not  paid,  and  here  sold 
it  to  my  clients,  for  mechanical  purposes,  at  rates  many  fold 
exceeding  the  price  we  are  soliciting  you  to  decree  to  us. 
Yet  such  is  not  an  improbable  result  if  you  accede  to  the 
views  urged  by  the  city.  It  does  not  harmonize  with  the 
usual  courses  of  the  law  to  rest  a claim  for  damages  upon 
prognostication  of  future  use ; but  if  it  does  so  rest  in  this 
case,  then  I insist  that  we  must  assume  the  city  wfill  employ 
this  power  or  right  in  such  manner  as  to  make  the  most  profit 
from  it,  and  that  profits  will  accrue  soonest  and  in  largest 
amount  as  they  shall  earliest  and  most  exhaustively  divert 
the  whole  water.  If,  then,  you  are  to  make  supposition  of 
what  the  city  will  do  in  the  nature  of  things,  we  believe  you 
will  suppose  it  will  take  all  this  water  as  soon  as  possible. 
If  this  looking  into  the  future  tends  to  diminish  the  estima- 
tion in  which  you  hold  the  rights  of  my  client,  whose 
property  has  been  taken  without  his  will,  I trust  you  will 
not  act  without  assurance  that  your  prescience  is  right.  And 
here  again  1 assert  the  position  that  I originally  took,  that 
the  city  stands  in  the  position  of  the  spoiler,  — it  is  taking 
in  invitum  the  property  of  the  citizens,  and  it  does  not 


Argument  of  Edward  F.  Hodges,  Esq.  1091 

stand,  as  was  so  amiably  and  happily  stated  by  my  brother 
Shattuck,  it  doesn’t  stand  as  a sovereign.  When  the 
city  takes  a piece  of  my  land  (in  the  city)  for  any  of 
the  thousand  purposes  that  the  patron,  the  father,  the 
sovereign,  requires  property  in  the  protection  of  its  citizens, 
it  is  the  case  of  the  sovereign  taking  the  property  of  one  of 
its  corporators,  one  of  its  children,  one  of  its  subjects,  for 
the  general  good.  But  the  City  of  Boston  and  the  Saxon- 
ville  mills  are  alike  artificial  citizens  of  the  Commonwealth 
of  Massachusetts  ; and  the  Commonwealth  gives  to  the  City 
of  Boston  the  right  to  lay  its  hand  upon  and  to  deal  with 
the  property  of  its  own  citizens  for  their  own  protection,  as 
the  sovereign  or  father  deals  with  subjects  and  children. 
But  the  right  to  reach  its  long  arm  and  take  the  property  of 
my  client,  situated  in  Middlesex  County,  is  not  the  case  of 
the  sovereign  dealing  with  his  subject,  or  the  father  with  his 
child.  It  is  clothing  one  citizen  with  the  power  to  take  the 
property  of  another  against  his  will,  and  it  can  be  reconciled 
with  right  and  justice  only  when  the  power  is  charged  with 
the  condition  that  there  shall  be  furnished  to  the  citizen  a 
judicial  tribunal,  at  once  impartial,  intelligent  and  fearless, 
who  shall  pass  upon  and  award  his  just  compensation. 
Using  the  word  in  no  offensive  sense,  it  strikes  me  if  the 
spoiler  ever  went  forth  in  this  world,  it  is  when  the  city 
reaches  out  to  another  district  to  appropriate  the  property 
and  the  fortunes  of  the  citizens.  We  owned  this  water*; 
the  city  has  taken  it  from  us ; has  withered  the  right  hand 
of  our  growing  profitable  and  useful  industry ; we  look  to 
you  for  compensation,  and  trust  that  you  will  see  that  while 
our  claims  are  very  large,  our  damages  are  larger.  No  sum 
thatyou  can  award  will  replace  our  establishment  in  the  secure, 
constant  and  generous  activity  in  which  it  was  working  when 
the  city  appropriated  its  vital  energy. 

One  word  more  and  I shall  be  done.  In  making  the  esti- 
mate of  the  value  of  steam-power  we  took  the  testimony  of 
Mr.  Bacon,  who  fixes  it,  as  you  will  remember,  at  $75.  I 
have  carefully  gone  over  the  testimony  that  has  been  taken 
since,  and  endeavored  to  view  it,  as  I would  ask  men  to 
view  my  own  affairs,  under  such  circumstances,  and  it  seems 
to  me  that,  in  the  position  of  my  clients,  the  risk  they  run  as 
to  the  price  of  coal,  and  all  the  proofs  bearing  upon  this 
subject,  $100  per  horse-power  is  the  lowest  sum  with 
which  we  can  supply  this  power ; and  be  it  understood  that 
in  so  estimating  I consider  the  difference  between  an  engine 
of  350  horse-power  and  one  of  less ; as  the  engine  is  larger 
so  you  produce  horse-power  for  a little  less  money,  after 
you  reach  that  grade  of  engines  that  requires  at  once  a good 


1092  Argument  of  Edward  F.  Hodges,  Esq. 


engineer  and  fireman  ; when  you  get  up  to  that,  where  both 
of  those  are  required,  as  you  increase  the  horse-power  you 
diminish  relatively  the  expense.  All  that  I consider ; but 
in  view  of  all  the  testimony  it  seems  to  me  we  should  have 
awarded  to  us  $100  for  horse-power.  I only  make  this 
statement,  because,  when  I originally  presented  it,  I enter- 
tained different  views,  and  would  make  no  claim  that  I did 
not  think  a fair  one.  If,  in  view  of  the  testimony  that  is 
before  you,  you  are  of  opinion  we  are  entitled  to  this  in- 
crease in  the  damages,  we  shall  ask  you  to  give  it  to  us. 

I believe,  gentlemen,  that  closes  what  I have  to  say.  In 
making  the  estimate  for  the  Saxonville  Company  I would 
ask  you  to  bear  in  mind  the  views  we  expressed  in  the 
original  case,  that  we  were  entitled  to  our  damages  for  being 
deprived  of  our  water  at  night  as  well  as  during  the  day,  for 
what  it  is  worth. 


Argument  of  L.  M.  Child,  Esq. 


1093 


ARGUMENT  OF  L.  M.  CHILD,  ESQ.,  AS  TO  THE 
TITLE  IN  BELVEDERE  MILL,  No.  1. 

As  I have  examined  this  title  here,  the  title  is  divided  into 
two  classes ; the  original  owner  of  it,  as  appears  by  the  title 
as  put  in,  is  Thomas  Hurd,  who  owned  the  land  on  both  sides 
of  the  river,  and  owned  all  the  water-power,  therefore.  In 
1821  he  conveys  to  Winthrop  How  certain  land,  — which  I 
do  not  propose  to  say  anything  about,  — with  the  privileges 
thereunto  belonging,  " except  the  mill  privilege,  where  the  old 
saw-mill  now  stands,  the  said  Hurd  reserving  to  himself,  his 
heirs  and  assigns,  a right  to  erect  and  maintain  a dam  across 
said  river  above  said  saw-mill,  where  the  dam  now  stands  ; ” 
w and  also  a right  to  draw  and  use  the  whole  of  the  water  of 
said  river  above  said  dam,  at  his  the  said  Hurd’s  factory, 
on  the  west  side  of  said  river.”  And  on  the  same  date, 
there  was  an  indenture  betweep  Hurd  and  How  con- 
taining this  clause  : " Convey  unto  the  said  Winthrop  How, 
his  heirs  and  assigns  forever,  a right  to  build  any  mill  or 
mills  on  the  east  side  of  Concord  river  below  the  mill-dam 
running  from  said  Hurd’s  factory  on  the  west  side  of  said 
river  to  the  easterly  side  thereof  ; also  a privilege  to  draw 
and  use  the  water  from  the  mill-pond  above  said  dam  for  the 
purpose  of  carrying  said  mill  in  common  with  saw-mill 
or  mills,  the  said  Hurd  reserving  to  himself,  his  heirs  and 
assigns,  the  first  and  exclusive  right  to  the  use  of  sufficient 
water  from  said  pond  to  carry  a fulling-mill  and  three  breast- 
wheels  ” — 

Commissioner  Russell.  Where  was  the  saw-mill  privi- 
lege — on  which  side  ? 

Mr.  Child.  The  saw-mill  privilege  was  on  the  east  side. 
Now,  we  claim  that  there  never  was  any  grant  of  the  saw- 
mill privilege  by  Thomas  Hurd.  The  deed  made  on  the  31st 
of  May,  1821,  expressly  reserves  the  saw-mill  privilege. 
An  indenture  made  on  the  same  day  gives  the  right  to  Win- 
throp How  to  draw  water  from  the  mill-pond,  but  reserves 
the  exclusive  right  of  Thomas  Hurd  to  use  the  water  on  the 
west  side  of  the  river  for  his  fulling-mill  and  his  three  breast- 
wheels,  therefore  leaving  it  in  this  condition,  that  the  saw-mill 
on  the  east  side  and  Winthrop  How,  the  grantee  of  Thomas 
Hurd,  have  a right  to  use  the  water  in  common,  but  neither 
the  mill  privilege  nor  Winthrop  How  have  the  right  to  use 
the  water  when  Thomas  Hurd  doesn’t  have  enough  to  carry 
his  fulling-mill  and  his  three  breast- wheels. 


1094 


Argument  of  L.  M.  Child,  Esq. 


Commissioner  Bussell.  You  claim,  under  that  deed  and 
indenture,  that  the  saw-mill  and  Winthrop  How  have  a right 
to  use  in  common  the  water  on  the  east  side? 

Mr.  Child.  Yes,  sir ; when  there  is  more  than  enough  to 
carry  the  fulling-mill  and  the  three  breast-wheels.  That  is,  that 
there  was  no  intention  on  the  part  of  Thomas  Hurd,  having 
made  a deed  on  the  same  day  in  which  he  expressly  reserves 
the  saw-mill  privilege,  and  there  cannot  be  found  anything 
in  that  indenture  which  conveys  away  the  saw-mill  privilege 
to  Winthrop  How,  but  it  simply  gives  to  Winthrop  How 
the  privilege  of  building  any  mill  he  likes  on  the  east  side  of 
the  river,  and  using  any  amount  of  water  he  likes,  together 
with  the  saw-mill,  up  to  the  point  where  there  is  not  enough 
to  do  more  than  to  carry  the  three  breast  wheels  and  the 
fulling-mill. 

Commissioner  Francis.  Allow  me  to  ask  if  the  saw-mill 
privilege  and  mill  were  situated  on  the  land  conveyed,  or 
not? 

Mr.  Child.  " Excepting  the  mill  privilege  where  the  old 
saw-mill  stands.” 

Commissioner  Francis.  If  the  mill  didn’t  stand  on  the 
land  conveyed  it  would  be  a little  different  question. 

Mr.  Butler.  I don’t  think  it  did  stand  on  the  land  con- 
veyed. It  stood  down  below,  I think. 

Commissioner  Francis.  Yes,  sir. 

Mr.  Butler.  The  point  being  that  it  left  the  water  on 
the  east  side  in  the  joint  use  of  the  saw-mill  and  of  How’s  mill 
when  there  was  more  than  enough  for  three  breast-wheels  and 
a fulling-mill. 

Mr.  Child.  Now,  by  this  deed,  Thomas  Hurd  conveys  a 
certain  tract  of  land  near  the  mouth  of  the  Concord  river, 
containing  ten  acres,  " beginning  at  the  northeast  corner  of 
the  said  Concord  river,  by  the  land  of  Edward  St.  Loe 
Livermore,  Esq.,  thence  running  south  5°  east  29  rods  of 
land  of  said  Livermore  29  rods  to  the  road  leading  to 
Tewksbury ; thence  crossing  said  road  to  the  end  of  the 
fence;  thence  south  7°  east  5 rods;  thence  south  1^°  west 
13  rods;  thence  south  16|°  west  9 rods  and  fa;  thence 
south  66°  west  5 rods  and  fa ; thence  south  29°  east  5 
rods  and  fa , to  said  Concord  river ; thence  down  said 
river  to  the  bounds  first  mentioned,  with  the  privileges 
thereunto  belonging,  excepting  the  mill  privilege  where  the 
old  saw-mill  now  stands,  the  said  Hurd  reserving  to  himself, 
his  heirs  and  assigns,  a right  to  erect  and  maintain  a dam 
across  said  river,  above  said  saw-mill,  where  the  dam  now 
stands  ;”  so  that  I should  suppose  it  did  stand  on  the  land 
conveyed. 


Argument  of  L.  M.  Child,  Esq.  1095 

Commissioner  Russell.  Or  at  all  events  the  saw-mill 
privilege  is  specified  as  belonging  to  the  land  conveyed. 

Mr.  Child.  It  says  with  all  the  privileges  thereunto 
belonging,  except  the  mill  privilege.  That  is,  if  the  mill 
privilege  hadn’t  been  excepted,  on  the  construction  of  that 
deed  it  would  have  carried  it. 

Mr.  Butler.  It  would  have  carried  it,  because  this 
land  was  both  above  and  below  the  dam ; therefore,  he  had 
to  retain  a right  to  the  saw-mill  and  the  dam,  and  reserve 
the  right  to  the  saw-mill. 

Mr.  Child.  1 don’t  think  it  followed  from  that  deed  that 
the  saw-mill  was  on  the  land  ; but  the  mill  privilege  was  on 
the  land,  and  he  reserved  the  right  to  get  water  for  a saw- 
mill below.  It  is  the  privilege  to  a saw-mill  somewhere. 

Mr.  Butler.  " With  the  privileges  thereunto  belonging, 
excepting  the  mill  privileges  where  the  old  saw-mill  now 
stands,  the  said  Hurd  reserving  to  himself,  his  heirs  and 
assigns  a right  to  erect  and  maintain  a dam  across  said 
river,  above  said  saw-mill,  where  the  dam  now  stands  ; and 
also  a right  to  draw  and  use  the  whole  of  the  water  of  said 
river,  above  said  dam,  at  his  the  said  Hurd’s  factory,  on 
the  west  side  of  said  river.”  Then  came  the  other  indenture. 

Mr.  Child.  What  we  claim  is,  that  he  reserved  a right 
to  draw  water  from  this  pond  on  the  east  side,  sufficient  for 
a saw-mill  in  his  deed ; that  when  he  made  his  indenture  he 
gives  Winthrop  How  the  right  to  build  any  mills  he  likes, 
and  use  any  water  he  can  get  in  that  pond,  in  company  with 
the  saw-mill ; but  he  cannot  use  any  at  all  when  he  needs  it 
from  the  west  side  of  the  river.  Now  Winthrop  How  con- 
veys to  Abraham  How  and  to  Windsor  and  Jeroboam  How 
a grist-mill  and  mill  privileges,  etc.  ; and  then  Abraham 
How  and  Windsor  and  Jeroboam  How  convey  what  they  get 
to  Daniel  T.  Curtis,  and  he  conveys  to  Warren,  Barry  & Park  ; 
so  the  first  part  of  this  title  gets  this  property  in  the  hands  of 
Warren,  Barry  & Park ; that  is,  to  the  land  on  the  east  side 
of  the  river,  and  of  the  water  on  the  east  side  of  the  river, 
with  the  exception  of  this  saw-mill  privilege.  Then  Warren, 
Barry  & Park  are  the  ones  who  make  a great  many  small 
conveyances ; and  the  first  conveyance  they  make  is  to 
William  Eager,  January  2d,  1832,  and  they  conveyed  to 
William  Eager  "no  more  water  than  will  run  through  said 
Holmes’  present  gate  (which  is  ten  inches  wide)  when  the 
same  is  lifted  or  open  two  and  a half  inches,  and  no  more.” 
That  is,  they  conveyed  to  Eager  the  right  to  use,  subject  to 
this  Middlesex  Company’s  right  for  the  factory  and  fulling- 
mill,  water  through  an  aperture  ten  inches  wide,  and  two 
and  a half  inches  high,  or  through  a gate  which  is  ten  inches 


1096 


Argument  of  L.  M.  Child,  Esq. 


wide,  and  two  and  a half  inches  high.  That  was  the  right 
of  water  conveyed  to  William  Eager.  Now,  in  order  to 
maintain  the  claim  of  the  Belvidere  Company  you  must  find 
that  that  is  Eager’s  claim  is  called  afterwards,  in  some 
of  the  conveyances,  We  claim  that  it  did  not  appear 
there  was 

Commissioner  Russell.  This  is  part  of  what  goes  to  the 
Belvidere,  and  not  what  is  excepted? 

Mr.  Shattuck.  Yes,  sir. 

Mr.  Child.  The  importance  of  that  is-  that  it  is  claimed 
here  that  the  ||-  comprise  all  the  water  there  is  left  after  the 
three  breast-wheels  and  the  fulling-mill.  Now  if  ^ is  x 10 
then  ||  is  twenty-five  times  that  amount  of  water ; and  if 
there  is  water  over  and  above  that,  it  doesn’t  belong  to  the 
Belvidere  Company.  That  is  the  point. 

Mr.  Shattuck.  The  other  deeds  describe  it  as  ^ part 
of  the  whole  matter. 

Mr.  Butler.  The  difficulty  is  you  only  get  it  by  twenty- 
fifths,  and  they  say  what  they  mean  by  a twenty-fifth. 

Mr.  Child.  There  is  nothing  in  this  title  that  shows  that 
the  2V  °f  the  water  was  ^ of  all  the  water ; hut  the  next 
privilege  they  grant,  or  one  of  the  next,  was  to  Alpheus 
Smith,  of  "six  twenty-fifth  parts  of  the  water  of  Concord 
river  at  the  premises  in  common  with  said  Warren,  Barry 
& Park,  their  heirs  and  assigns ; but  this  right  is  to  be  ex- 
ercised subject  to  the  previous  rights  following ; that  is  to 
say,  only  when  there  is  sufficient  water  for  the  Middlesex 
Company’s  right,  and  also  for  the  works  of  the  flannel-fac- 
tory and  fulling-mill  owned  by  us  near  the  premises,  as  said 
works  now  are.”  That  is,  it  is  subject  to  the  Warren,  Barry 
& Park’s  mills  ; and  sufficient  for  their  works  these  twenty- 
fifths  are.  Then  Warren,  Barry  & Park  sell  out  fourteen 
shares  of  that  sort,  and  then  they  sell  all  they  have  got  left 
to  the  Belvidere  Woollen  Company.  They  first  measure 
10  X 2 1 ; they  call  it  a twenty-fifth  — 

Mr.  Shattuck.  They  don’t  call  the  Eager  portion  a 
twenty-fifth. 

Mr.  Butler.  Yes,  they  do. 

Mr.  Shattuck.  No,  sir;  not  Warren,  Barry  & Park. 

Mr.  Butler.  That  is  a question  of  fact,  and  it  had  better 
be  determined  by  the  deed. 

Mr.  Shattuck.  Yes,  sir ; that  is  a question  of  fact,  and 
we  will  have  110  controversy  about  it. 

Mr.  Child.  That  is  the  first  conveyance,  Warren,  Barry 
& Park  to  Eager,  10  X 2|. 

Mr.  Shattuck.  I have  110  doubt  at  that  time  that  they 


Argument  of  L.  M.  Child,  Esq. 


1097 


had  a general  idea  that  that  was  one  twenty-fifth  of  the  whole 
available  part  of  the  water. 

Mr.  Child.  I claim  from  reading  of  the  deeds  it  appears 
that  it  was  the  intention  of  Warren,  Barry  & Park  to  call 
10  X ^ one  twenty-fifth,  and  what  they  sold,  and  when 
they  sold  six  twenty-fifths  they  sold  it  for  an  amount  six  times 
as  large  as  Eager’s,  and  that  they  kept  back  for  themselves 
all  the  balance  of  the  water,  whatever  it  might  be. 

Mr.  Shattuck.  Oh,  no,  sir. 

Mr.  Child.  That  Warren,  Barry  & Park  did. 

Mr.  Butler.  What  they  said  was  this  : " The  above  lots 
contain  in  all  15,768  square  feet  of  land,  more  or  less,  with 
all  the  privileges  and  appurtenances  to  the  premises  belong- 
ing, particularly  the  right  to  use  six  twenty-fifth  parts  of  the 
water  of  Concord  river  at  the  premises  in  common  with  said 
Warren,  Barry  & Park,  their  heirs  and  assigns  ; but  this 
right  is  to  be  exercised  subject  to  the  previous  rights  follow- 
ing ; that  is  to  say,  only  when  there  is  sufficient  water  for 
the  Middlesex  Company’s  right,  and  also  for  the  works  of 
the  flannel-factory  and  fulling-mill  owned  by  us  near  the 
premises,  as  said  works  now  are,  or  with  the  substitution  of 
an  iron- wheel  similar  to  that  in  the  Middlesex  Company’s 
wooden  building,  and  also  for  the  works  of  Holmes’  card 
and  whip  factory.” 

Mr.  Child.  Holmes’  card  and  whip  factory  is  Eager’s. 

Mr.  Butler.  "Reserving,  nevertheless,  to  us  and  our 
heirs  and  assigns  the  unmolested  right  forever  to  have  a 
canal  running  through  the  premises,  the  same  with,  or  simi- 
lar to,  the  present  canal  there.” 

Mr.  Child.  That  is,  what  we  claim  shows  that  this 
twenty-fifth  was  this  aperture.  Of  course,  if  it  was  a 
twenty-fifth,  it  would  not  be  a stationary  quantity,  but  it 
would  depend  upon  the  amount  of  water ; but  this  six 
twenty-fifths  of  Smith’s  is  subject  to  Eager’s  10  X 2J-. 
Therefore  I say  when  they  sold  six-twenty-fifths  to  Smith 
they  sold  him  an  aperture  six  times  that  size,  subject  to 
Eager’s  aperture.  Eager  was  first,  and  he  second,  and  so 
on.  Warren,  Barry  & Park  then  proceeded  to  sell,  subject 
to  various  parties,  as  set  forth  on  the  928th  page  : first,  as  I 
have  stated,  to  William  Eager,  with  the  Holmes’  card  and 
whip  factory;  second,  to  James  Stewart,  and  another  Jg- ; 
third,  to  Abijah  Brown,  and  another  ^g- ; fourth,  to  Hale 
Clements  ^ ; fifth,  to  J.  G.  Kittredge 

Now,  of  those  conveyances  which  I have  read,  I will  state 
what  came  back  to  the  Belvidere  Company : William 

Eager’s  comes  to  the  Belvidere  Company ; Hale  Clem- 
ents’ comes  to  the  Belvidere  Company ; Alpheus  Smith’s 


1098 


Argument  of  L.  M.  Child,  Esq. 


comes  to  the  Belvidere  Company,  with  an  exception ; and 
that  is  all  that  comes  to  that  company,  and  I will  call  your 
Honors’  attention  to  the  exception.  On  page  931  is  the 
conveyance  of  Alpheus  Smith  to  Seth  Ames  and  George 
Brown,  Nov.  28th,  1835,  in  which  they  convey  to  Seth 
Ames,  "being  the  same  premises  which  were  conveyed 
to  me  in  October,  1832,  by  Warren,  Barry  & Park, 
except  so  much  thereof  as  I have  heretofore  conveyed  to 
Hazen  Elliot  and  Abner  Ball.”  Now  Hazen  Elliot’s  part 
comes  back  to  the  Belvidere  Mills,  but  Abner  Bali’s  part  is 
still  outstanding.  That  reservation  of  Abner  Ball  stands 
between  Alpheus  Smith  and  the  Belvidere  Company,  so  that 
it  stands  in  this  way,  that  the  Belvidere  Company  can  get 
back  all  these  twenty-fifths  ; with  the  exception  of  five,  they 
all  come  back,  although  subject  to  Abner  Ball,  and  subject  to 
J.  D.  Sturtevant.  On  the  932d  page,  the  Whitney  Mills  to 
Baker,  Hill  & Farnsworth,  the  "same  lot  of  land  as  was 
conveyed  by  Warren,  Barry  & Park  to  Alpheus  Smith,  by 
deed  dated  Oct.  1st,  1832,  excepting  so  much  of  said  lot  as 
lies  on  the  north  side  of  a line  drawn  across  the  same,  par- 
allel to  the  north  side  of  said  building,  and  distant  from  the 
same  four  feet ; with  all  the  privileges,  appurtenances,  water- 
rights,  etc.,  as  in  said  deed  to  Smith,  subject  to  right  of  J. 
D.  Sturtevant  in  water  and  canal  across  said  land,  as  con- 
veyed to  him  by  deed,  dated  April  2d,  1844.” 

Now  I will  recapitulate  a little.  Warren,  Barry  & Park 
had  the  whole  of  this  property  less  the  saw-mill  right.  War- 
ren, Barry  & Park  conveyed  away  ||  to  various  parties ; 
and  the  remaining  ||  they  convey  to  Baker,  Farnsworth  & 
Hill.  Of  the  ||  nine  twenty-fifths  came  back  to  the  Belvi- 
dere Woollen  Company  subject  to  Abner  Ball  andJ.  D.  Sturt- 
evant and  to  a conveyance  of  I don’t  state  positively 
here  that  J.  D.  Sturtevant’s  interest  did  not  get  back  to  the 
Belvidere  Woollen  Mills,  but  I claim  that  it  does  not,  and  I 
ask  you  (Mr.  Shattuck)  to  show  that.  Therefore  I do  not 
state  that  J.  D.  Sturtevant’s  is  still  outstanding,  but  I claim 
it  is  still  outstanding.  I assert  that  Abner  Ball’s  is  still 
outstanding  and  the  saw-mill  privilege.  Now  of  the 
come  to  Farnsworth,  Baker  & Hill;  then  Farnsworth, 
Baker  & Hill  convey  away  ^ and  ^ ; they  made  a new 
departure  and  instead  of  calling  it  twenty-fifths  they  called 
it  twenty-fourths. 

Mr.  Shattuck.  Only  in  one  instance. 

Mr.  Child.  Only  in  one  instance.  That  is,  they  con- 
veyed | of  to  one  man  and  of  to  another 
man,  so  that  it  leaves  the  property  (which  came  from 
Warren,  Barry  & Park,  who  owned  the  whole  of  it,  subject 


Argument  of  L.  M.  Child,  Esq. 


1099 


to  the  saw-mill)  in  Farnsworth,  Baker  & Hill,  amounting  to 
l|-  minus  subject  to  Ball  and  Sturtevant.  Farnsworth, 
Baker  & Hill  then  convey  their  rights,  viz.  : minus  to 

the  Belvidere  Woollen  Company.  The  same  company  also 
secures  Hale  Clements  . So  that  the  amount  of  water- 
power owned  by  the  Belvidere  Woollen  Company  is  §-|  — 
subject  to  Abner  Ball’s  right  and  the  saw-mill  privilege. 
The  respondents  claiming  that  the  twenty-fifths  are  not  the 
whole  surplus  water,  but  only  the  amount  of  water  running 
through  an  aperture  10  in.  X 2^  in.  There  is  in  one  or  two 
of  the  deeds,  " subject  to  the  covenant  with  Smith ; ” but  I 
believe  that  Smith’s  covenant  was  simply  the  right  to  allow 
a canal  to  run  through  the  land,  and  that  it  was  not  any  cove- 
nant in  regard  to  taking  of  water. 

There  is  one  other  thing  that  I desire  to  call  your  Honors’ 
attention  to,  and  that  is,  that  in  the  conveyances  a large  por- 
tion of  these  water-rights  went  through  the  Whitney  mills. 
In  the  Whitney  mills,  in  one  of  their  conveyances  at  least 
they  say,  "with  the  privileges  and  appurtenances  thereto 
belonging,”  without  saying  anything  about  the  water. 
Whether  that  carries  the  water  or  not  is  for  you  to  decide. 

Mr.  Shattuck.  That  is  the  Clement  and  Smith  deed,  to 
which  I referred  the  other  day. 

Mr.  Child.  In  one  of  their  deeds  they  conveyed  it  in 
that  way  without  saying  anything  about  the  water  at  all. 

Commissioner  Francis.  What  has  become  of  the  saw- 
mill privilege  ? 

Mr.  Child.  The  saw-mill  we  claim.  If  the  Middlesex 
mills  have  got  any  water-rights  on  that  island  at  all  it  is  that 
saw-mill  privilege,  and  they  have  always  claimed  it.  They 
have  been  in  possession  of  it  from  that  time  to  this,  and  have 
always  used  it,  and  have  always  used  their  share  of  the 
water. 

Commissioner  Russell.  Do  you  mean  that  they  have  not 
any  other  rights  ? 

Mr.  Child.  We  mean  on  the  east  side  of  the  river  on  that 
island. 

Commissioner  Stevens.  Was  that  island  included  in  the 
land  ? 

Mr.  Butler.  The  island  always  stood  by  itself.  What 
we  claim  is  that  we  have  got  the  balance  of  the  saw-mill  privi- 
lege and  we  call  that  T7g , and  when  we  come  at  the  city  we 
shall  come  for  the  ^7g  which  remains  on  that  side. 


1100 


Argument  of  Gen.  B.  F.  Butler. 


ARGUMENT  OF  GEN.  B.  F.  BUTLER. 

May  it  please  the  Commissioners : — It  becomes  my  duty 
now,  in  behalf  of  the  city,  to  make  a few  observations  to  you 
upon  what  I deem  to  be  the  true  position  of  this  case,  and, 
in  so  far  as  I may,  bring  to  your  minds  the  various  claims  of 
the  different  petitioners  as  they  appear  on  each  other,  and 
the  rights  of  the  city.  I have  never  troubled  you,  and  shall 
not  now,  with  any  compliments  upon  your  learning  and  abil- 
ity, because  I never  pay  compliments  where  none  are  need- 
ed, and,  beside,  if  you  should  make  any  mistakes  there  is 
another  tribunal  to  correct  them.  I assume  that  you  will 
bring  matured  judgment  to  the  consideration  of  the  matters 
before  us,  and  I am  sure  that  you  have  given  the  most  care- 
ful and  the  most  thoroughly  patient  attention  to  them ; nor 
do  I think  it  is  correct,  in  any  view  of  th'e  case,  to  say  that 
the  city  stands  in  odium  spoliatoris.  I don’t  believe  that 
applies  to  us  at  all.  My  own  view  is  that  the  city  stands,  as 
the  agent  of  the  Commonwealth,  to  do  a great  public  work 
for  the  benefit  of  the  Commonwealth  ; for  the  larger  portion 
of  the  interests  of  the  Commonwealth  are  bound  up  in  the 
prosperity,  health,  and  growth  of  the  commerce  of  the  City 
of  Boston,  and  it  is  in  aid  of  that  prosperity,  health  and 
growth  that  this  proceeding  is  undertaken. 

Another  observation  I may  be  permitted  to  make,  that 
this  question  is  one  of  very  vital  importance,  because  the 
whole  Commonwealth,  its  several  villages,  have  got  to  look 
to  the  ponds  and  streams  for  pure  water  for  the  maintenance 
of  health  and  cleanliness  and  the  domestic  uses  of  their  in- 
habitants ; and  if  it  is  to  be  predicated  that  every  stream  is 
subject  to  a prior  right  in  a mill-owner,  so  that  it  is  not  pos- 
sible for  the  inhabitants  living  on  that  stream,  or  any  other 
inhabitant  of  the  Commonwealth,  to  take  a single  drop  of 
water,  as  theoretically  it  is  claimed  to  be,  without  paying 
damages,  then  a very  onerous  burden  is  to  be  borne  by  the 
tax-payers  of  the  Commonwealth.  And  more  than  that,  if 
very  exorbitant  damages  are  to  be  given  and  very  exorbitant 
claims  allowed,  if  anything  like  what  is  claimed  here  wher- 
ever the  claims  have  been  formulated  in  figures,  as  in  the 
case  of  the  Saxonville  and  the  Sterling  mill  and  the  Schnei- 
der mill,  which  are  the  only  three,  1 believe,  where  these 
claims  have  been  put  into  figures  — 

Mr.  Shattuck.  I think  you  will  find  the  figures  in  each 
case.  Judge  Abbott  put  them  in  in  his,  and  Mr.  Merwin  in 


Argument  of  Gen.  B.  F.  Butler. 


1101 


Mr.  Butler.  I am  judging  by  the  record ; and  I speak 
with  some  confidence  because  I have  tried  to  get  it  in  every 
case,  and  I don’t  remember  how  many  hundred  thousand 
dollars  Mr.  Simpson  claimed  — 

Mr.  Shattuck.  I don’t  know  that  you  care  to  refer  to  it, 
but  there  is  an  exact  statement  in  dollars  and  cents  of  Mr. 
Faulkner’s  and  Mr.  Talbot’s  claims,  and  Mr.  Merwin  also  put 
one  in  ; but  I don’t  wish  to  interrupt  you. 

Mr.  Butler.  I am  much  obliged.  But  that  was  put  in 
the  table,  and  I am  sorry  to  say,  in  my  view  of  the  case,  that, 
among  the  few  of  these  tables  I have  read,  I haven’t  seen 
that;  but  what  was  said  in  argument,  I was  dealing  with  — 
Then  I will  add— ■-Simpson,  I don’t  know  how  many  hundred 
thousand ; Talbot,  $150,000  ; Faulkner,  in  his  mill,  $36,000  ; 
" and  add  to  this  sum  part  of  the  cost  of  a new  engine  and  a 
larger  one ; add  some  part  of  the  winter  stopping,  and  add 
some  part  of  the  liability  for  breaking  down,”  which  is  a 
pretty  indefinite  claim.  Then,  next,  the  Sterling  mill, 
$45,000  ; then  comes  Schneider’s  mill,  $60,000.  I say  now, 
with  all  gravity,  that  if  anything  like  this  is  to  be  given  in 
damages,  then,  in  my  judgment,  it  is  an  entire  departure 
from  any  rule  of  law. 

It  is  to  be  remarked  that  no  one  of  these  gentlemen  state 
their  claims  in  their  petitions,  and  there  is  no  evidence  that 
any  one  of  these  gentlemen  have  ever  made  any  claims  upon 
the  city  for  damages,  or  given  the  city  any  opportunity  to 
agree  with  them.  That,  I think,  is  the  evidence  as  I under- 
stand it,  and  I believe  you  will  so  understand  it.  I think 
while  I am  upon  this  subject  it  will  be  perhaps  the  best 
illustration  of  the  entire  enormity  of  these  claims  if  we 
deal,  by  way  of  illustration,  with  the  Sterling  mill,  because 
if  there  ever  was  a claim  that  cannot,  upon  any  possible 
view  of  it,  be  supported,  it  is  that  claim  of  the  Sterling 
mill.  Now,  in  the  first  place,  let  us  see  what  the  title  to  the 
Sterling  mill  is.  In  the  first  place,  Mr.  Whipple,  being 
owner  of  a mill-dam  and  water-power,  conveys  to  Joshua 
Mather,  by  his  deed,  dated  May  18th,  1857, — he  sells  to 
Joshua  Mather  the  entire  premises  on  which  the  Sterling 
mill  is  situated ; and  also  when  there  is  in  the  river  a quan- 
tity equal  to  288  cubic  feet,  one-eighth  of  that  quantity  for 
eleven  and  a quarter  hours  a day,  for  six  days  in  the  week, 
and  the  consideration  of  all  that  land,  the  mill-right  and  the 
water,  is  $1,500.  That  went  in  to  Mr.  Mather.  Now,  Mr. 
Mather  held  that  property  until  the  ninth  day  of  July,  1864, 
and  did  nothing  with  it,  because  he  leased  it  on  that  day  for 
fifty  years,  with  the  privilege  of  a fifty-years’  renewal,  to 
Charles  A.  Stott ; and  Charles  A.  Stott  is  to  build  the  mills 


1102 


Argument  of  Gen.  B.  F.  Butler. 


upon  it,  as  shown  by  the  lease.  In  1864,  for  fifty  years, 
with  the  privilege  of  renewal,  under  these  conditions  : — 

“ If,  when  said  new  and  further  lease  is  given,  either  of  the  two 
parties  then  holding  and  owning  the  interests  of,  and  representing 
the  said  Mather  and  the  said  Stott  under  this  lease,  shall  require 
or  request  a new  valuation  of  said  premises,  then  the  said  parties 
shall  each  choose  one  person,  who  shall  be  a well-qualified  and  ex- 
perienced manufacturer,  and  also  a superintendent  of,  or  owner  in, 
one  of  the  principal  or  large  manufacturing  establishments  in  said 
Lowell,  and  they  two  so  chosen  shall  choose  a like  third  person, 
and  the  three  so  chosen  shall,  under  oath,  appraise  the  then  value 
of  said  premises  as  hereby  leased  (the  real  estate,  land,  mill- 
privilege  and  water-power,  but  not  including  buildings,  structures 
or  improvements  hereafter  made)  ; ” — 

Because  the  lease  was  that  Stott  was  to  build  the  buildings  — 

“ And  if  six  per  cent,  interest  for  one  year  on  the  sum  at  which 
the  same  shall  be  so  appraised  shall  be  greater  or  less  than  four- 
teen hundred  dollars,  then  the  annual  rent  for  said  further  or 
second  term  shall  be  fixed  or  ascertained  by  taking  fourteen 
hundred  dollars,  and  adding  thereto  such  excess,  if  any,  6r  sub- 
tracting therefrom  such  lack  or  deficiency,  if  any,  and  the  sum  or 
remainder,  as  the  case  may  be,  to  be  the  amount  of  annual  rent  to 
be  paid  in  said  new  lease  or  further  lease,  instead  of  fourteen 
hundred  dollars  as  in  this,  but  fourteen  hundred  dollars  to  be  the 
annual  rent  in  said  new  lease,  if  neither  party  shall  require  or 
request  a new  valuation.” 

Now,  then,  having  these  premises,  he  leased  them  for  six 
per  cent,  on  a sum  which  would  make  $1,400,  land  and 
everything  but  the  new  building,  and  he  fixed  that  as  the 
worth  of  that  in  perpetuity  for  a hundred  years,  except  it 
might  grow  more  valuable.  Now,  what  does  the  Sterling 
mill  get  ? It  gets  the  right  to  this  by  paying  an  annual  rent 
of  $1,400.  It  gets  all  this  land,  all  this  water-power,  the 
whole  thirty-six  feet,  fora  rent  of  $1,400;  and  for  taking 
one-filth  of  it,  — for  that  is  the  worst  that  can  be  said,  — which 
costs  them  a fifth  of  $1,400  a year,  they  desire  us  to  pay 
them  $45,000  ! The  whole  was  bought  for  $15,000,  rented 
to  them  at  $1,400  a year;  they  have  got  to  pay  $1,400  a 
year.  We  subtract  from  their  rental  (and  I don’t  know 
whether  the  whole  matter  — but  that  is  a question  for 
you  to  consider  — whether  the  whole  matter  is  not  for  the 
landlord  and  not  for  them ; I have  raised  that  point)  only 
that  which  costs  them  so  much  money,  and  will  not  cost 
them  any  more  money  or  any  less  for  the  balance  of  a hun- 
dred years,  and  they  want  $45,000  ! Now,  then,  just  here, 


Argument  of  Gen.  B.  F.  Butler. 


1103 


what  is  the  rule  of  damages  ? Why,  no  two  lawyers  of  any 
considerable  practice  at  the  bar  can  differ  as  to  the  rule  of 
damages.  The  rule  of  damages  is  the  difference  in  the  mar- 
ket value  of  the  property  injured  between  what  it  would 
have  been  before  the  taking,  aud  what  it  is  after  the  taking ; 
and  all  these  measurements,  and  all  these  estimates,  and  all 
these  calculations  which  have  been  gone  into  only  are  valu- 
able or  admissible  as  throwing  light  on  that  question,  and 
that  question  alone.  There  is  no  claim  in  law  that  we  should 
replace  this  water  by  steam,  any  more  than  there  is  a claim 
that  we  should  supplement  the  power  taken  away  and  give 
them  some  which  is  applied  by  electricity ; but  the  steam- 
power  is  used  as  an  illustration  of  how  it  might  be  supplied, 
and  showing  one  element  of  what  might  be  the  change  in 
market  value.  Now,  then,  with  that  loss  of  $1,400  a year  to 
the  Sterling  mills,  would  you  make  a difference  in  that 
power,  in  that  matter  for  the  water-power  alone ; for  the 
building  is  not  injured?  If  you  were  going  to  buy  that 
lease,  would  you  make  a difference  of  $45,000,  considering 
the  change?  If  you  would,  why,  be  it  so  ; then  1 am  doue. 
If  I thought  you  would,  I should  sit  down  very  flat,  and  not 
say  another  word.  It  seems  to  be  so  preposterous.  Think 
of  it  a moment.  The  whole  power,  land  and  all,  cost  in 

1857 ; when  it  was  let  in  1864  they  made  six  per  cent,  for 

a hundred  years  on  a sum  which  would  make  $1,400. 
They  have  seven  sets  of  cards  there.  Suppose  they  throw 
off  one  set  of  cards  and  move  it  down,  as  they  did  from  Bel- 
videre  No.  2 to  Belvidere  No.  1,  and  they  lost  one-seventh 
of  the  water-power  by  just  moving  off’  one  set  of  cards,  and 
also  the  production  of  one  set  of  cards ; and  you,  gentle- 
men, know  what  that  means.  Do  you  think  that  is  worth 
$45,000?  Can  you  make  a profit  on  one  set  of  cards  of  the 
interest  on  $45,000?  I should  be  glad  to  see  it  done, 
because  that  patent  wTould  be  useful  and  valuable,  and  useful 
and  valuable  as  a patent  on  account  of  its  novelty. 

Now,  take  the  Snyder  mill.  They  have  seven  sets  of 
cards  and  they  use  steam-power,  and  it  is  insisted  that  the 
difference  in  the  Snyder  mill  will  be  $60,000  in  cash  value. 
I undertake  to  say  that  the  whole  Snyder  mill,  — and  they 
have  put  in  no  evidence  upon  this  point  at  all ; you  have 
been  to  see  it,  — I undertake  to  say  that  the  whole  Snyder 
mill  will  not  sell,  that  all  the  power  they  have  will  not  sell 
for  $60,000  altogether  in  the  market  to-day. 

Mr.  Storey.  It  is  mortgaged  for  $80,000. 

Mr.  Butler.  I said  with  all  the  power ; so  there  is  no 
occasion  for  interruption.  It  would  not  sell  to-day  for 
$60,000.  Why,  you  can  buy  all  through  Western  Massa- 


1104 


Argument  of  Gen.  B.  F.  Butler. 


chusetts.  a mill  for  how  much?  For  $7,000.  I appeal  to 
your  knowledge  that  all  the  appurtenances  there  are  very 
much  better  than  this.  There  never  was  so  extravagant  and 
outrageous  a claim.  We  never  shall  get  the  resumption  of 
specie  payments  with  such  inflation  as  this.  There  never 
was  anything  like  it  under  heaven,  — never  such  inflation  in 
values. 

Now,  again,  we  will  come  to  Mr.  Simpson,  and  1 under- 
take to  say  that  it  could  have  been  bought  on  the  first  day  of 
January,  with  twenty  sets  of  cards,  with  all  its  privileges  and 
appurtenances,  and  in  as  good  order  as  it  is  running,  for 
half  a million  dollars,  — the  whole  thing,  village  and  all, 
dwelling-houses  included,  so  far  as  that  is  concerned.  We 
know  something  about  the  value  of  property.  In  1857  the 
Middlesex  mills  sold  for  $300,000  only,  at  public  sale. 

In  regard  to  the  Talbot  mill,  I am  more  in  doubt,  for  this 
reason  : Treating  the  matter  now  in  this  general  way,  I don’t 
know  how  much  water  he  has  got.  It  I take  these  tables,  then , 
he  has  got  400  cubic  feet  per  second,  and  they  seem  to  be 
worked  out  with  an  accuracy  and  conclusiveness  which  are 
very  convincing.  I should  be  like  a Dutch  justice,  and  if  I 
didn’t  hear  the  other  side  I should  certainly  think  that  was 
right.  W ell,  if  we  take  one-fifth  of  that,  we  have  a great 
deal ; but  if  I take  all  that  I have  down  at  the  Wamesit  dam 
there  cannot  be  but  220  feet  relied  upon  in  that  river  at  all, 
then  it  is  another  question.  With  all  that  is  wasted  and  all 
that  runs  through,  with  the  Talbot  privilege,  and  with  the 
Faulkner  privilege,  with  all  that  comes  down  in  the  day  and 
night,  all  that  can  be  relied  on  is  220  feet,  and  that  water  is 
of  such  a character  when  it  gets  down  to  the  Middlesex 
mills  that  we  don’t  use  but  168  feet,  and  then  there  isn’t  but 
from  45  to  50  horse-power  used  by  anybody  else,  which  is 
in  proof  here,  and,  as  Mr.  Frizell  tells  us,  at  the  other  end 
of  the  dam,  why  that  is,  — water,  which  we  consider,  as  it 
runs  down  hill  evidently  diminishes  in  quantity ; there- 
fore, I will  leave  out  the  Talbot  dam  for  the  present. 
Therefore  I say  you  are  to  bring  your  minds  to  this  proposi- 
tion, and  this  proposition  alone  : what  would  be  the  fair  sell- 
ing difference  in  the  market  between  that  property,  under 
the  same  circumstances,  with  the  water  in  or  the  water  out? 
Now,  let  me  illustrate  that  in  another  way,  Take  the  Essex 
dam  at  Lawrence,  where  about  two  per  cent,  is  claimed  to  be 
lost,  and  where  it  is  shown  that  only  one  per  cent,  is  lost  of 
their  water,  and  with  the  testimony  of  Mr.  Mills,  that  by  no 
appreciable  way  known  to  science  they  can  measure  it  to  find 
out  wdiether  they  have  lost  it  or  not ; — they  know  theoretically 
that  they  have,  but  by  no  means  know  n to  science  can  they 


Argument  of  Gen.  B.  F.  Butler. 


1105 


measure  it ; — now,  how  much  would  that  fact  detract  from  the 
value  of  the  Essex  Company’s  property  in  the  market  ? And 
yet  they  come  here  and  ask  for  $150,000,  and  I don’t  know 
but  for  more.  Think  of  it  for  a moment.  Would  it  alter 
the  value  of  their  stock  in  the  market  and  take  one  dollar 
away  from  it  in  the  mind  of  any  sensible  man  to  take  away 
an  amount  of  water  so  inappreciable  that  they  cannot  measure 
it  practically  ? That  forty  times  more  runs  away  at  night 
that  they  cannot  even  store  in  the  best  form  they  can  put  it, 
— that  lost,  and  that  to  change  by  the  hundreds  of  thousands 
the  value  of  the  Essex  Company’s  property  ! Isn’t  it  pre- 
posterous ? Taking  the  market  value,  — and  the  remarkable 
thing  is  that  we  have  now  been  weeks,  weary  weeks,  trying  this 
case,  and  they  have  not  taken  the  precaution  to  introduce  a 
single  witness  upon  the  main  question  of  what  is  the  market 
value  now,  and  what  it  was  then.  The  burden  was  on  them. 
I didn’t  find  any  occasion  to  do  it.  They  have  given  you*  many 
illustrations  by  which  you  may  guess  what  the  price  would 
be,  but  where  is  the  manufacturer  that  they  have  called  on 
the  stand  before  you,  or  any  other  business  man  that  would 
have  said,  " Sir,  that  is  the  value  ; that  is  the  difference”? 

Now,  assuming  one  fifty-seventh  of  that  water-power  to 
be  gone,  what  percentage  of  deduction  have  they  given  you 
as  the  market  value?  They  have  given  you  no  light  on 
that  at  all.  I should  have  liked  to  have  seen  any  business 
man  under  heaven  struggle  with  that  question  in  the  case 
of  the  Essex  Company.  Suppose  we  take  Mr.  J.  Wiley  Ed- 
mands,  as  a gentleman  of  great  capacity,  and  set  Mr.  Edmands 
down  here  and  say,  "Mr.  Edmands,  assume  that  one  fifty- 
seventh  part  of  the  water-power  of  the  Essex  Company  is 
taken  away ; assume  that  that  is  so  small  a quantity  that  they 
are  not  able  to  tell  when  it  is  gone  by  any  known  method 
of  measurement ; assume  that  they  have  been  almost  thirty 
years  attempting  to  sell  their  water-power,  and  have  not  sold 
quite  half  yet,  — what  difference  do  you  think  the  fact  that 
one  fifty-seventh  part  of  their  water,  under  those  circum- 
stances, would  make?”  He  cannot  tell,  and  I should  like 
to  see  him  or  anybody  else  struggle  with  it,  and  that  is  the 
question  which  you  are  to  struggle  with.  I look  upon  it, 
as  I think  I stated  before,  like  a man  who  has  a load  of  hay  ; 
it  is  measured  on  a hay-scale  that  will  not  turn  within  four 
pounds,  and  his  neighbor’s  horse  as  he  goes  by  snatches  a 
couple  of  pounds  off,  what  diminution  in  the  market  value 
has  that  load  of  hay  experienced  ? It  is  not  that  the  hay  is 
not  valuable,  but  it  is  that  is  not  valuable  sub  modo.  And 
now  I have  made  these  observations  because  I think  that 
is  true,  and  I am  as  anxious  as  my  brother  Richardson  can 


1106 


Argument  of  Gen.  B.  F.  Butler. 


be,  or  anybody  else,  that  you  should  come  to  such  a deter- 
mination that  I can  advise  my  clients  to  allow  your  judg- 
ments to  stand  in  law  as  well  as  in  fact. 

I desire  now  to  call  yonr  attention  to  some  matters  in 
regard  to  these  measurements.  The  tirst  question  to  deter- 
mine is,  what  is  the  loss,  what  do  the  city  take  ? and  there  we 
have  a very  wide  departure.  We  insist  that  we  don’t  take 
more  than  one-tenth.  We  don’t  claim,  however,  that  our 
measurements  for  a period  of  three  years  ought  to  determine, 
or  would  be  a determining  fact  of  how  much  we  take.  What 
we  do  claim  is,  — and  I ask  your  attention  whether  it  is  not 
a proper  claim  to  make,  — that  our  measurement  shows  what 
the  rate  of  supply  is  of  the  Sudbury  to  the  Concord  in  a 
dry  season,  and  that  it  is  the  best  test  for  that,  — not  showing 
that  so  many  gallons  or  cubic  feet  run  this  year  shows  that 
this  is  a fair  average  of  the  year  comparing  it  with  the  rainfall ; 
but  to  show,  other  things  being  equal,  that  there  is  no  more 
reason  why  the  ratio  of  water  that  comes  down  should  not 
be  the  same,  for  a series  of  years,  as  that  which  comes  down 
this  year.  We  measure  the  amount  of  water  which  the 
Sudbury  and  the  Concord  send  down,  and  we  find  how 
much  the  Concord  sends  down,  at  the  Massic  dam,  and 
we  say  so  much  went  in,  so  much  is  found  here.  Those 
two  this  season,  by  a series  of  measurements,  bear  a relation 
to  each  other  ; has  there  been  anything  shown  why  those  two 
amounts,  or  like  amounts,  whatever  amount  is  in  the  Sud- 
bury, and  whatever  amount  is  in  the  Concord,  should  not 
bear  the  same  ratio  to  each  other  in  a series  of  years  and 
forever?  Not  that  there  will  always  be  every  year  the  same 
amount  in  the  Sudbury,  or  the  same  amount  in  the  Concord  ; 
but,  as  it  is  shown,  of  the  water  of  the  Sudbury  which 
would  go  into  the  Concord,  there  would  be  one-tenth  only 
accounted  for  at  the  Massic  dam  ; that  is,  it  would  be  only 
one-tenth  of  what  was  accounted  for  at  the  Massic  dam.  Is 
there  any  testimony  here,  or  is  there  anything  in  the  science 
of  engineering,  or  is  there  anything  anywhere  that  would 
tend  to  show  that  the  same  ratio  in  amounts  would  not  attain 
every  year?  They  admit  that  the  dryer  it  is  the  more 
certain  it  is  that  the  water  will  come  down,  because  it  will 
not  be  lost  in  flowing  over  the  marshes  and  meadows ; 
therefore,  in  this  dry  year,  they  will  get  all  of  the  water  of 
the  Sudbury  river  that  they  ever  will  get.  Now,  if  there  is 
not  some  extraordinary  flood,  or  some  extraordinary  case  of 
water  running  to  waste,  why  then  you  get  what?  You  get 
the  fair  amount  which  the  Sudbury  does  supply  at  one  time 
to  the  Concord;  and  without  any  great  controlling  incident 
is  there  any  reason  to  suppose  that  that  same  ratio  will,  not 


Argument  of  Gen.  B.  F.  Butler. 


1107 


hold  good  in  the  future?  If  there  is,  I do  not  know  it,  and 
I have  given  it  some  thought ; and  that,  I think,  is  the  value 
of  that  measurement ; by  no  means  determining  that  next 
year  there  will  not  be  any  more  water  or  less  water,  accord- 
ing to  the  water-shed  running  in  the  two  rivers,  but  there 
will  be  the  same  relative  amounts  running  in  the  two  rivers ; 
that  the  Sudbury  will  give  the  same  relative  supply  year  by 
year ; and  that  the  Concord  will  have  the  same  relative 
supply.  That  is  to  say,  if  it  now  turns  out,  as  we  think  it 
does,  that  the  Sudbury  in  a low  state  of  water  only  gives 
one-tenth  to  the  Concord,  and  next  year  there  is  twice  as 
much  in  the  Concord,  why  then  we  say  that  the  Sudbury 
will  only  give  one-tenth  next  year ; and  is  there  any  reason 
to  show  why  that  will  not  hold  good  ? They  claim  that  the 
water-shed  will  hold  good  always  in  giving  a relation.  So 
it  will  with  certain  considerations  out,  and  so  it  is  good 
year  for  year.  We  are  showing  the  amount  that  gets  into 
the  river  bears  the  same  ratio  to  the  amount  delivered  year 
by  year;  and  if  it  does,  then  I say  we  have  demonstrated 
by  the  best  possible  evidence  that  taking  the  Sudbury  only 
takes  about  one-tenth,  and  without  going  into  averages,  which 
my  brother  Child  well  explained  are  not  to  be  relied  upon, 
because  of  the  great  unreliability  in  times  of  freshets  of 
water  running  to  waste,  so  that  the  mills  by  no  means  use 
the  average  of  the  rainfall,  — not  more  than  three-fifths,  I 
think  I made  it  by  my  calculation.  Certainly  quite  one-half 
of  the  rainfall  in  our  streams  is  not  utilized  by  the  mills.  I 
think  I am  not  wrong  in  that ; I wish  your  attention  to  it. 
What  I mean  to  say  is,  that  the  rainfall  on  the  water-shed, 
the  dam  at  Lowell,  on  the  Merrimack,  would  not  hold  more 
than  so  as  to  utilize  one-half  of  it,  and  the  dam  at  Wamesit 
would  be  the  same  ; so  that  I shall  proceed  upon  the  ground 
that  there  is  proved  affirmatively  not  more  than  one-tenth. 
Well,  now,  then  comes  the  question  what  is  that  tenth?  In 
the  case  of  Mr.  Simpson  it  is  of  no  consequence,  because 
there  we  have  the  exact  measure ; we  have  to  compare  it 
with  nothing,  and  I need  not  trouble  you  with  any  further 
remarks  on  that ; you  have  got  that  before  you ; there  is  no 
question  of  comparison  ; you  know  exactly  how  much  water 
we  have  taken  for  the  last  three  years  from  Mr.  Simpson, 
and  you  know  exactly  how  much  it  has  cost  him  for  coal ; 
and  I don’t  see  that  this  latter  testimony  has  altered  the 
case  of  Mr.  Simpson  at  all  from  what  it  was  when  we  sub- 
mitted it ; and  I didn’t  understand  any  new  suggestions  from 
the  testimony  on  the  part  of  Brother  Hodges,  except  that 
we  show  you  exactly  how  much  water  we  took.  We  always 
did  that,  and  were  always  prepared  to  do  that ; there  never 


1108  Argument  of  Gen.  B.  F.  Butler. 

was  any  difficulty  about  that ; that  is,  there  has  been  so 
much  water  taken  during  those  years.  1 only  object  to  my 
brother  Hodges’  idea  that  forty-five  inches  of  rain  is  six 
inches  less  than  the  average.  I don’t  understand  that. 

Mr.  Hodges.  It  is  so  by  the  tables. 

Mr.  Butler.  Is  it? 

Mr.  Hodges.  Yes,  sir ; I take  your  tables. 

Mr.  Butler.  I don’t  know  that  the  tables  show  that ; and 
if  they  do  show  it,  they  are  not  tables  that  I have  any  reliance 
upon,  because  I had  supposed  that  nothing  was  better  settled 
than  one  thing,  that  the  limit  was  from  46  to  48, — the  lowest 
46  inches  and  the  highest  48  inches  in  the  year, — and  45  is  not 
the  mean  of  that  unless  my  arithmetic  is  entirely  at  fault. 
And  unfortunately  for  all  these  calculations  it  is  admitted  now 
that  the  average  rainfall  in  the  dry  months  in  these  three 
years,  when  we  have  been  measuring,  are  exceptionally  large  ; 
that  is,  greater  than  the  average  for  a series  of  years.  I 
called  Brother  Abbott’s  attention  to  that  when  he  was 
arguing. 

Now  having  established,  I think,  by  the  very  best  evidence, 
that  the  ratio  of  supply  of  the  Sudbury  river  that  can  be  utilized 
is  about  one- tenth,  the  next  question  is,  what  is  the  flow? 
Leaving  Mr.  Simpson,  who  has  a right  to  it  all,  the  next 
question  is,  what  is  the  flow  of  the  Concord  at  Billerica  dam? 
Because  then  we  have  got  a deduction  of  one-tenth  of  the 
water  powrer  there  in  the  cases  of  Mr.  Talbot  and  of  Mr. 
Faulkner,  and  then  I believe  it  is  beyond  all  question  that 
the  same  amount  ought  to  be  found  at  the  Wamesit  dam. 
Now,  Mr.  Abbott  has  summed  up  — what  he  says  is  in  the 
testimony,  page  536  g.  After  making  his  calculation  : — 

"Talbot’s  right  when  water  below  bolt 

requires,  .....  405.  cu.  ft.  p.  sec. 
Amount  actually  furnished  after  taking,  234.29 


Deficiency  ....  170.71 

July,  at  20  per  cent.  : — 

Talbot’s  wheels  require  . . . 420.5 

Faulkner’s  . . . . . 57.3 


477.8 

Amount  actually  supplied  after  deduct- 
ing 72.3  miles  ....  265. 


Deficiency  . 


212.8 


Argument  of  Gen.  B.  F.  Butler. 


1109 


Talbot’s  right  when  water  below  bolt 

requires  .....  405.  cu.  ft.  p.  sec. 
Actual  amount  furnished  when  72.3 
miles  were  taken  . . . 265. 


Deficiency  . . . .140.” 

Then  he  goes  on  with  those  calculations  at  all  times.  In 
other  words,  he  assumes  that  the  power  at  the  Talbot  dam 
was  equivalent  to  a permanent  power  of  405  cubic  feet  per 
second,  because  he  says  that  Mr.  Talbot  has  not  ever  been 
shut  down  for  a series  of  25  years  except  on  one  or  two 
occasions,  and  Mr.  Talbot  says  that  until  they  get  b'elow  the 
top  of  the  bolt,  or  the  water  is  actually  in  danger  of  getting 
below,  that  they  draw  all  their  wheels,  dye  wood  wheels  and 
others;  and,  in  the  division  between  Talbot  and  Faulkner, 
Talbot  was  given,  according  to  that  deposition,  405  cubic  feet 
per  second,  which  the  mills  required.  He  draws  above  the 
.bolt,  m37  friend. 

Mr.  Shattuck.  But  when  he  says  it  comes  down  to  the 
bolt  he  don’t  say  there  was  405  cubic  feet  running. 

Mr.  Butler.  Pardon  me ; the  evidence  is  before  you  ; 
here  is  the  table.  When  it  is  not  down  to  the  bolt  we  do 
not  injure  him  at  all,  when  it  is  running  over  the  dam,  and 
the  dam  is  as  high  as  the  bolt  except  three-quarters  of  an  inch, 
and  Mr.  Abbott’s  table  says  this,  and  I examined  it,  and  I asked 
Mr.  Abbott  to-day  if  he  stood  upon  it;  and  he  said  he  did, 
and  there  we  have  it  proved  to  a demonstration.  Nay,  he  is 
taking  deeds  on  the  ground  there  is  a permanent  power  of 
405  cubic  feet  per  second  there  ; he  cannot  drive  his  machi- 
nery without  it ; he  built  wheels,  valuable  turbine  wheels, 
and  put  them  in  to  use  it,  and  he  says  he  does  use  it.  That 
is  the  testimony,  and  if  there  is  anything  proved  on  earth  by 
human  testimony  in  regard  to  water-power,  there  is  that 
there  is  405  cubic  feet  as  a permanent  power  at  Talbot’s,  and 
if  the  testimony  stood  alone,  gentlemen,  I should  expect  you 
to  give  a judgment  upon  that.  I should  myself,  but  there 
were  the  old  wheels  in  the  old  time.  Then  the  Faulkners,  living 
on  that  water-power,  born  on  that  water-power,  and  knowing 
all  about  it,  go  into  a division  with  the  Talbots,  when  the  water 
is  above  the  dam,  upon  that  thesis,  and  make  it  405  cubic 
feet  of  water.  Well,  I suppose  that  that  testimony  will  bear 
strongly  on  your  minds.  If  it  is  not  true,  then  it  turns  out  that 
you  can  prove  anything  about  water  that  you  want  to  ; it  de- 
pends where  you  strike  in.  It  appears  that  when  you  want 
to  prove  there  is  no  more  than  220  cubic  feet,  you  can ; and 
when  you  want  to  prove  there  is  double  that  quantity,  you  can 


1110 


Argument  of  Gen.  B.  F.  Butler. 


by  equally  good  testimony  of  engineers  and  mill-rights,  and 
gates  and  water-sheds  and  every  sort  of  a thing.  Now  Mr. 
Abbott  has  calculated  a water-shed  here  which  gives  him  an 
amount  of  water  regularly  every  year ; he  says  he  has  gone 
back  for  nineteen  years  and  he  finds  that  his  water-shed,  when 
they  add  the  Sudbury  in,  upon  any  calculation  of  water-shed, 
whether  the  New  York  rule  or  the  Mississippi-river  rule  or 
any  other  rule,  taken  at  25  per  cent.,  gives  him  that  amount ; 
and  he  comes  here  and  convinces  you  of  that ; the  water-shed 
gives  it,  the  gates  take  it,  the  wheels  require  it,  the  measure- 
ments give  it.  Good  heavens,  how  they  pile  up  the  testimony 
here  that  there  is  405  cubic  feet  of  water  a second  ! and  if  you 
don’t  believe  that,  you  will  get  so  that  you  will  not  believe 
anything.  There  is  Mr.  Simpson  pouring  right  down  into 
this  river  about  60  effective  horse-power  night  and  day  all 
the  time,  and  besides  the  immense  amount  of  steam  condensa- 
tion which  goes  into  the  river.  They  start  off  with  a pretty 
large  amount,  away  up  at  the  top.  If  there  is  anything 
proved  in  this  ease,  and  I am  anxious  about  my  friend  Talbot, 
quite  anxious  about  him ; I don’t  want  his  case  disturbed  by 
Mr.  Frizell  and  his  measurements,  or  by  Mr.  Herschel ; I 
have  a personal  interest  in  his  case  ; I don’t  want  to  have  my 
water-power  down  at  Wamesit  abused ; it  would  frighten  off 
my  tenants  if  there  is  only  220  feet  of  water ; therefore  I 
hope  not,  therefore  I stand  by  Mr.  Talbot’s  measurement 
strongly.  There  are  two  or  three  things  against  them.  You 
will  find,  by  looking  into  the  commissioners’  report,  when 
they  measured  that  they  got  the  actual  flow  of  the  river  only 
200  feet  a second ; but  they  were  measuring  to  show  that 
there  was  not  enough  water  in  the  river  to  flow  the  meadows 
over  ; that  was  what  they  were  after  at  that  time,  and  they 
demonstrated  it  completely. 

We  now  come  to  what  is  proved  at  the  Wamesit  dam. 
Well,  here  has  been  an  exceptionally  dry  year,  and  it  is 
proved  at  the  Massic  d.im  that  there  is  a minimum  of  about 
180  feet.  Well,  that  don’t  militate  at  all  against  the  quantity 
of  water  — 

Mr.  Shattuck.  That  is  not  exactly  the  statement ; that 
is,  it  is  proved  to  be  180  feet  in  an  exceptionally  dry  year. 
Mr.  Frizell’s  testimony  is  that  it  was  225  feet. 

Mr.  Butler.  I say,  in  an  exceptionally  dry  year  it  was 
180  feet. 

Mr.  Shattuck.  I think  you  misunderstand  Mr.  Frizell. 
He  said,  as  an  expert,  taking  into  account  the  water-shed 
and  the  rainfall,  and  his  measurements,  he  should  say  220 
feet  was  about  all  a prudent  mill-owner  could  rely  on. 

Mr.  Butler.  I understand  it. 


Argument  of  Gen.  B.  F.  Butler. 


1111 


Mr.  Storey.  I will  call  your  attention  to  the  testimony  : — 

t 

“ Q.  That  is,  the  225  feet  per  second  was  the  available  effective 
flow  before  the  diversion  of  the  Sudbury  ? 

“A.  Yes.” 

Mr.  Butler.  I am  content,  and  think  he  said  at  another 
time  220. 

Mr.  Child.  Two  hundred  and  ten. 

Mr.  Butler.  I was  only  saying  he  finds  that  minimum 
of  180  feet  by  measurement ; but  how  much  was  held  back 
he  didn’t  testify.  It  is  in  testimony  that  only  a part  of  the 
Wamesit  mills  were  running  and  in  an  exceptionally  dry 
year;  and  then  he  says,  calculating  from  the  same  water- 
sheds, from  the  same  testimony,  with  six  miles  more  of  it, 
you  cannot  rely  upon  225  feet ; with  six  or  twelve  miles  more 
water-shed  you  cannot  rely  upon  225  cubic  feet ; that  is,  no 
prudent  mill-owner  will  rely  on  it.  Well,  nowhere  are  Mr. 
Talbot  and  Mr.  Faulkner,  very  prudent  and  reliable  mill- 
owners,  they  are  relying  to  put  in  wheels,  putting  in 
machinery,  putting  up  mills,  expending  $700,000  or  $800,000 
on  the  strength  that  they  have  got  405  cubic  feet  per  second  ; 
and  so  certain  are  they  that  they  spend  $800,000,  and  Mr. 
Talbot,  who  has  got  the  first  right  to  that  permanent  water- 
power, risks  his  whole  capital  upon  it,  and  don’t  even  put  in 
a steam-engine  to  help  it  out  when  it  is  dry.  It  is  not  only 
an  average  permanent  power,  but  a power  at  all  times,  and 
he  never  stopped  but  twice — threw  off  a little  machinery 
in  the  afternoon  — in  twenty-live  years  ; drawing  upon  that 
draught  all  his  works.  Sometimes  he  would  have  only  his 
woollen  mill  on,  but  the  moment  the  water  was  above  the  top 
of  the  bolt,  then  he  put  on  his  other  wheels ; which  take, 
too,  and  more  than,  all  that  amount  of  water;  so  that  there 
is  a couple  of  prudent  mill-owners  depending  upon  more 
than  that.  But  I don’t  stop  there.  There  was  another  Mr. 
Faulkner,  the  old  gentleman  who  owns  the  Faulkner  privi- 
lege down  on  Wamesit  dam.  That  Mr.  Faulkner  was  born 
on  that  mill-dam  almost,  lived  on  it  all  his  life  ; by  a change 
of  family  circumstances,  his  brother  bought  out  his  share  of 
the  manufacturing  ; he  was  a manufacturer  ; he  had  watched 
that  water  run  from  the  time  he  was  a boy  up  to  the  time 
when  he  was  a man.  A few  years  ago  only,  when  he  was  in 
the  full  maturity  of  his  power,  he  goes  down  on  to  Whip- 
ple’s dam,  only  six  miles  below,  and  he  buys  water-power, 
upon  the  ground  that  there  is  288  cubic  feet  per  second,  and 
puts  up  a mill  on  the  strength  of  that  opinion,  and  agrees  to 
take  only  an  aliquot  part  when  there  is  any  less,  and  he  runs 


1112 


Argument  oe  Gen.  B.  F.  Butler. 


his  mill  from  1862  lip  to  1875  without  stopping  a single 
whole  day  upon  that  assumption.  Am  I not  right  in  that 
evidence  ? 

Well,  about  that  time  Mr.  Mather,  he  bought,  and  Mr. 
Stott^ higher  up,  it  was  so  valuable;  Mr.  Chase,  of  the  Sny- 
der mill ; the  American  Bolt  Company ; all  these  men, 
knowing  the  state  of  that  river,  prudent  mill-owners,  all 
took  it  on  the  basis  of  about  288  cubic  feet  per  second,  and 
they  took  it  that  it  would  furnish  all  the  time  288  cubic  feet 
per  second ; for  they  made  no  provision  that  Mr.  Whipple 
should  not  draw  of  the  rest  just  as  much  as  the  canal  would 
carry  through  the  whole  night.  They  thought  it  would  give 
288  cubic  feet  per  second/night  and  day,  because,  I say, 
they  made  no  provision  that  he  should  not  draw  through  the 
night,  and  that  was  to  be  with  only  a flowage  up  to  the  height 
of  the  permanent  stone  dam,  with  a covenant  that  flash-boards 
should  be  kept  up  eight  inches,  in  order  to  keep  up  the  head. 
Well,  now  what  shall  we  believe?  I will  tell  you  what  I 
think  about  it  upon  this  testimony.  I don’t  believe  there  is 
quite  as  much  as  Mr.  Talbot  did ; I think  there  is  very  con- 
siderable more  than  Mr.  Frizell  did.  I think  that  that 
power  is  reliable  for  about  288  cubic  feet  per  second  all  the 
time,  except  about  thirty  days  in  the  year,  and  for  nine 
months  in  the  year  it  is  reliable  for  500  cubic  feet  per 
second,  and  more,  too  ; and,  if  you  will  look  over  the  testi- 
mony, you  will  see  that  it  is  used  that  way  to-day,  and 
people  build  mills.  The  Bleachery  Company,  — they  bought 
at  the  tail  end  upon  the  strength  of  that.  W ell,  now  do  you 
suppose  these  gentlemen  didn’t  all  examine  it  ? and  I would 
rather  have  one  man’s  act,  when  he  is  doing  his  own  business 
for  himself,  than  to  have  all  his  opinions  when  he  is  called  as 
a witness  that  he  can  possibly  give,  because  in  the  one  case 
he  acts  upon  what  he  knows,  and  in  the  other  case  he  testi- 
fies upon  theory.  Therefore,  I think  that  you  will  come  to 
the  conclusion  that  there  are  288  cubic  feet  per  second,  or 
about  that,  all  the  time,  and  that  there  is  about  one-tenth 
of  that  taken,  and  that  these  gentlemen  are  only  injured 
when  it  is  drawn  below  that ; and  that  is  the  proposition 
which  I hope  to  maintain  before  you  upon  that  branch  of 
the  case.  The  reason  why  I say  so  is,  that  all  these  men 
have  gone  into  a purchase  upon  that  ground  ; second,  that 
the  Wamesit  Power  Company  let  246  horse-power  of  water 
guaranteeing  204  of  it  upon  the  ground  that  there  will  be  a 
surplus  of  288  cubic  feet  per  second  for  so  much  of  the 
time  that  they  can  afford  to  supplement  by  steam,  and  let  at 
$75  a horse-power.  Now,  Mr.  Faulkner,  on  the  Wamesit 
dam,  tells  you  that  he  never  had  stopped  his  mill,  except  a 


Argument  of  Gen.  B.  F.  Butler. 


1113 


part  of  some  day,  for  want  of  water ; he  has  always  run  to 
his  full  capacity,  and  for  a little  more,  and  once  we  had  to 
have  a lawsuit  to  fetch  his  wheels  down  to  what  he  ought 
to  take.  He  is  one  of  the  gentlemen  who  takes  more  than 
he  ought  to.  Now,  the  Chase  mills  don’t  show  you  that 
they  ever  stopped  over  one  day  for  loss  of  water.  There  is 
Mr.  Snyder;  I tried  to  get  something  out  of  him,  and  could 
not;  they  took  care  not  to  bring  anybody  who  does  know. 
He  is  only  a hundred  feet  lower  down  than  Faulkner ; and, 
if  Faulkner  runs  all  the  time,  'why  cannot  Snyder? 

Pardon  me,  then  we  come  to  the  Stirling  mill.  Nobody 
ever  said  they  were  stopped  for  want  of  water.  Then 
comes  the  American  Bolt  Company ; nobody  ever  said  they 
were  stopped  for  want  of  water.  Then  comes  the  Stott 
mill,  Belvidere  No.  2,  at  the  Lawrence-street  bridge ; and 
nobody  said  there  that  they  were  ever  stopped  an  hour  for 
want  of  water,  and  they  never  had  any  steam-engine  to  help 
them  out  in  that  mill  until  the  taking  of  the  water  by  the 
city,  and  they  never  have  started  that  steam-engine ; and, 
while  that  is  going  on,  and  at  the  same  time,  the  Wamesit 
Power  Company  are  guaranteeing  204  horse-power,  or  68 
cubic  feet  of  water  only,  which  belongs  to  them,  and  the 
surplus ; they  have  not  run  altogether  more  than  sixty  or 
seventy  days  in  the  year.  Now,  I don’t  care  about  any 
measurements  of  the  canal ; I don’t  care  about  anybody  put- 
ting a chip  in  and  saying  how  far  down  it, goes  ; they  are  the 
effects  of  the  water  running  through  the  wheels.  Why,  they 
say  Mr.  Wood  and  the  Bleachery  don’t  get  their  fair  share. 
I agree  to  that,  that  they  don’t;  because  why?  We  are 
using  nearly  double  that  amount  at  the  Wamesit  Power 
Company,  double  our  amount,  268,  because  I insist  there  is 
more  than  288  feet  running  there,  and  it  turns  out  that  the 
more  the  head  is  drawn  down,  the  more  water  runs  through 
the  canal,  and  therefore  the  measurements  of  Mr.  Tilton 
show  you  — what?  Why,  show  you  what  we  are  doing  when 
we  are  drawing  all  that  number  of  horse-power,  600  horse- 
power, —over  600  horse-power, — as  the  288  feet  upon  the  cal- 
culations they  make,  and  then  we  have  200  horse-power  more 
daily . Isn’t  that  thfe  condition  of  things  there  ? And  they  say 
it  is  a very  permanent  stream.  We  all  agree  to  that,  and  there- 
fore I am  trying  to  convince  you,  because  I think  there  is  a 
fair  point  to  be  taken,  that  it  is  a permanent  power  with 
the  exception  of  some  thirty  days  in  the  year,  when  all 
power  on  small  streams  fails,  and  the  smaller  the  streams 
the  surer  they  are  to  fail.  That  is  a permanent  power;  it 
may  be  relied  on,  and  for  the  rest  of  the  year  it  maybe  relied 
upon  for  twice  or  thrice  that  amount.  That  is  a fair  condi- 


1114 


Argument  of  Gen.  B.  F.  Butler. 


tion  of  things,  and  from  that  you  are  to  deduct  how  much 
the  Sudbury  river  fairly  adds  to  that,  and  how  much  that 
would  disturb  the  market  value  of  anybody’s  property.  And 
now  allow  me  right  here.  You  have  heard  of  the  most  ex- 
pensive steam-engine,  you  have  heard  of  the  most  expensive 
firemen,  with  the  greatest  amount  of  fixtures,  the  amount 
the  city  was  going  to  pay  for  them ; reckon  steam-engines 
by  a thousand,  what  was  done,  boilers,  boiler-rooms,  and 
how  much  more  you  would  have  to  get?  When  Mr.  Faulk- 
ner gets  a steam-engine  to  eke  out  his  works  after  the  city 
has  taken  water,  and  after  the  Wamesit  Power  Company 
have  taken  all  they  can  get,  it  costs  him  for  his  engine  $400, 
and  he  hitches  it  on  to  the  steam  boiler  that  he  has  to  do  his 
dyeing  and  heating  with,  and  it  runs  along,  and  the  only 
danger  is,  it  makes  it  a little  warm  in  the  room  where  it  is, 
and  eight  months  out  of  the  year  he  has  to  heat  that  room, 
so  it  is  all  the  better. 

[. Adjourned  till  half-past  one  o’  clock,  ] 


AFTERNOON  SESSION. 

At  the  reassembling  of  the  commissioners  General  Butler 
resumed  his  argument  as  follows  : — 

May  it  please  your  Honors:  If  I am  right  that  there  is 

288  cubic  feet  of  water  to  be  depended  upon  in  the  power, 
then  the  question  is : What  do  these  gentlemen  lose  upon 

the  dam  when  it  is  below?  They  lose  one-tenth  of  their 
power.  What  is  the  market  value  of  that?  Take  Mr. 
Faulkner,  for  instance.  He  gave  $5,000  for  his  land  and  25 
cubic  feet  of  water.  Mr.  Mather  gave  $15,000  for  his  land 
and  36  cubic  feet  of  water.  The  interest  of  that  would 
make  it  about  $20  a horse-power.  During  all  this  time  the 
market  price  of  water-power  at  Lawrence  was  $20  a horse- 
power. It  seems  that  a horse-power  at  Lowell,  at  the 
Wamesit  dam,  was  sold  at  about  the  same  price,  and  that 
price  has  remained  unchanged  in  Lawrence  from  that  day  to 
this.  There  is  no  doubt  of  it. 

Now,  was  not  Brother  Child  right  when  he  called  your 
Honors’  attention  to  the  fact  that  we  were  not  to  pay  for 
supply  of  steam-power  ? It  is  not  necessary  to  supply  steam- 
power.  All  they  have  got  to  do  is  to  throw  off  some  of  the 
machinery.  How  much  less  would  that  be?  But  if  their 
claim  is  a true  one,  — that  there  is  only  220  cubic  feet  to  be 
relied  upon,  and  that  the  canal  w#ill  not  carry  any  more, — 
why,  then  their  rights  are  to  be  restricted  to  that ; — for  they 


Argument  of  Gen.  B.  F.  Butler. 


1115 


bought,  — not  working  horse-power,  — but  they  bought  one- 
eighth,  one-twelfth,  one-sixteenth,  as  the  case  maybe,  of  the 
water-power  in  that  river.  Don’t  talk  about  the  water-power 
in  the  canal.  It  is  the  water-power  in  the  river,  when  the 
water  was  at  the  height  of  the  permanent  stone  dam,  and 
every  other  drop  of  water,  during  every  night  and  Sunday, 
belonged  especially  to  Mr.  Whipple.  He  expressly  reserved 
that,  meaning  that  he  should  never  exceed  such  an  aliquot 
part  of  the  water,  — of  288  feet,  — however  much  or  how- 
ever little  he  has  running  in  the  river.  So  that  their  part 
was  of  very  little  value,  if  there  was  only  220  cubic  feet  of 
water  in  the  river,  — because  they  have  only  their  aliquot 
part  of  220,  not  of  288.  But  I repudiate  that  theory.  I in- 
sist that  there  was  a fair  average  power  of  288  feet.  Good, 
clear-headed,  sound-minded  business  men  have  erected  large 
numbers  of  mills  and  have  gone  on  with  their  business  upon 
that  basis,  and  I think  that  it  is  an  accurate  one.  I don’t 
know  that  I can  aid  you  by  any  other  suggestions  upon  this 
matter.  The  evidence  is  wofully  short  on  the  part  of  the 
complainants.  They  will  not  tell  you  what  their  mills  are 
worth,  what  the  market  value  was,  what  the  market  value 
ever  has  been.  They  have  not  given  you  a scintilla  of 
evidence  upon  that.  And  I think  the  best  illustration  of  the 
poverty  of  their  evidence  is  that  old  Mr.  Charles  A.  Stott, 
who  had  the  Sterling  mills,  has  not  been  brought  here. 
They  brought  John  Stott  here  for  what  he  did  not  know,  and 
not  for  what  he  did.  But  Charles  Stott  is  a clear-headed 
and  stupidly  honest  old  Englishman,  and  if  you  got  him 
here  he  would  tell  you  just  exactly  what  it  was,  let  it  come 
back  or  edge,  no  matter  what  happened. 

Mr.  Shattuck.  Do  you  say  this  upon  the  evidence  ? 

Mr.  Butler.  Yes,  sir ; I say  this  upon  the  evidence,  — 
because,  if  he  would  have  aided  them  at  all,  he  is  the  man  who 
is  best  informed.  He  is  the  man  who  built  Belvidere  No.  2, 
has  always  owned  Belvidere  No.  1,  and  no  man  knows  more 
about  it  upon  the  face  of  the  earth.  That  is  the  evidence. 
He  is  of  age,  and  not  too  old.  Why  don’t  they  bring  him? 
Why  don’t  we  have  some  testimony  of  what  this  property  is 
worth?  Why,  I would  have  agreed,  for  the  amount  that  is 
claimed  here,  to  have  purchased  the  whole  of  this  property 
from  Simpson  to  the  sea,  — always  excepting  the  Lawrence 
and  Essex  Company,  which  is  not  injured  at  all.  I do  not, 
I say,  think  I can  aid  you  upon  this  any  more.  I do  not 
think  the  calculations  are  very  valuable,  except  as  showing 
how  far  statistics  will  mislead, — and  there  is  nothing  like 
statistics  to  mislead  either.  But  the  action  of  men  is  the 
best  test  of  an  actual  state  of  facts. 


1116 


Argument  of  Gen.  B.  F.  Butler. 


Now  we  come  to  the  case  of  Mrs.  Richmond ; — and  I 
think  that  is  the  most  illustrative  case  of  inflation  of  dam- 
ages. Let  us  take  her  case  fairly.  She  has  288  cubic  feet  of 
water  running  over  her  dam,  if  there  is  nothing  over  Wame- 
sit  dam  or  River-meadow  brook.  It  has  been  running  there 
since  creation,  and  she  has  not  utilized  but  little  more  than 
half  of  it.  Now  what  does  she  come  in  and  say?  Why,  "I 
must  have  large  damages.”  Why?  "Because  this  water- 
power is  very  valuable.”  "Lowell  has  grown  so  as  to  show 
the  value  of  water-power.”  Now  let  us  take  one  fact : She 

has  two  wheels,  — one  of  fifteen  and  one  of  fifty  horse-power 
— the  rated  amount,  more  than  twenty  years  ago,  by  those 
who  owned  the  power  before  her,  and  by  her  husband,  using 
in  the  same  way.  It  is  admitted  that  they  are  so  set,  when 
not  having  a sufficient  rent  for  the  water,  that  they  lose,  and 
get  not  more  than  45  or  50  per  cent,  of  the  horse-power  that 
the  wheels  are  capable  of  if  they  were  properly  set.  Is  not 
that  the  testimony  ? That  is  the  testimony  of  her  own  wit- 
ness. And  he  swears  that. for  about  twelve  hundred  dollars 
all  that  might  be  remedied  and  get  the  fair  weight  of  the 
wheels  and  seventy-five  per  cent,  of  the  horse-power.  Very 
well,  then,  rather  than  to  re-set  those  wheels,  at  an  expense 
of  $1,200,  for  twenty  years  they  have  been  running  at  a loss. 
The  original  owners  set  their  wheels  so  improvidently  that 
they  would  not  deliver  the  water ; so  there  wTas  a loss  of  45 
to  50  per  cent,  on  the  65  horse-power.  Now  upon  any  cal- 
culation that  loss  was  equal  to  the  loss  by  taking  the  Sud- 
bury river.  And  rather  than  pay  $1,200,  they  have  run 
under  that  loss  for  twenty  years.  Is  not  that  so?  Am  I 
wrong?  If  I am  wrong  you  will  correct  me.  And  I want 
to  say,  in  all  fairness  and  honesty,  that  I want  you  to  let 
Mrs.  Richmond  have  as  much  as  you  can  consistently  with 
truth  and  facts.  There  is  no  more  deserving  woman  on 
earth.  She  is  my  nearest  neighbor  almost ; and  I would 
rather  give  her  five  dollars  than  take  one  away  from  her. 
But  these  claims  are  perfectly  preposterous  — perfectly  pre- 
posterous. Let  us  try  it  in  another  way. 

Mr.  Shattuck.  1 differ  from  you,  General.  I do  not 
think  we  are  to  be  punished  on  account  of  what  others  have 
done. 

Mr.  Butler.  The  only  difference  between  you  and  me, 
Mr.  Shattuck,  is  that  you  ought  to  be  punished  a little  for 
inflating  your  values  so  much. 

Mr.  Shattuck.  You  began  by  crediting  her  with  a little 
more  inflation  than  you  did  us.  You  said  it  was  one  of  the 
best  illustrations  of  the  inflation  of  damages. 

Mr.  Butler.  I have  dealt  with  that  for  the  purpose  of 


Argument  of  Gen.  B.  F.  Butler. 


1117 


showing  what  the  action  of  men  was.  And  here  is  her  hus- 
band, — here  are  those  that  owned  it  before  her,  — they 
have  thought  that  the  loss  was  of  so  little  account  to  them 
that  they  would  not  pay  $1 ,200  to  save  this  power. 

But  let  us  take  her  case  in  another  point  of  view,  which  is 
pretty  material,  I think.  She  says  that  she  lets  to  Mr. 
Coffin  and  to  Mr.  Walker  all  her  power.  She  gets  $5,800 
rental.  The  testimony  on  her  part  is,  that  she  has  about 
$75,000  of  mill  property  and  machinery,  besides  her  land 
there,  which  is  included  in  that  lease.  Be  it  so.  It  is  about 
$75,000.  That  is  independent  of  the  land  and  the  water- 
power and  the  100  horse-power,  which  is  about  what  she 
claims  she  has  got  there  and  lets.  Then  she  lets  $75,000 
worth  of  machinery  and  buildings  for  $5,800,  and  pays  taxes 
and  repairs.  How  much  does  she  get  for  her  water-power 
at  any  per  cent,  that  you  can  reckon?  How  much  does  she 
get  for  water-power  upon  any  possible  percentage  that  she 
can  reckon  ? How  much  a horse-power,  given  60  per  cent, 
of  the  $75,000,  — how  much  would  the  hundred  horse-power 
let  for?  There  is  the  value  of  a horse-power  right  there  in 
Lowell,  with  buildings  and  machinery  worth  $75,000,  — and 
I suppose  nobody  thinks  of  letting  buildings  short  of  eight 
per  cent,  (they  ought  not  to),  and  paper  machinery  short  of 
eight  per  cent.  How  much  is  left  for  water-power?  Judge 
ye.  Judge  ye.  She  is  damaged  somewhat,  I agree.  But  I 
am  upon  the  question  of  the  after  inflation  of  all  this.  These 
gentlemen  that  ask  you  these  enormous  sums  can  go  and  hire 
forty  or  forty-five  thousand  dollars’  worth  of  buildings  (for 
Mr.  Walker  is  only  on  a lease  at  will)  and  thirty  horse- 
power for  $2,800  a year  ! It  is  let  day  by  day  at  a lease  at 
will,  at  that,  at  this  hour.  Well,  is  it  not  wonderful  that  the 
claims  are  made  in  this  way  ? Is  it  not  wonderful  ? Let  us 
get  out  of  the  region  of  fancy  and  fanciful  theories  and  fanci- 
ful calculations,  and  come  down  to  the  business  of  life,  — 
taking  the  money  which  will  be  a remuneration. 

Then  there  is  the  Belvidere  No.  1,  a title  which  I have 
utterly  failed  to  understand  ; but  I hope  you  will  be  able  to 
show  exactly  what  the  rights  are.  You  know  precisely  what 
an  old-fashioned  fulling-mill  right  was  worth.  You  know 
precisely  what  an  old-fashioned  saw-mill  right  was  worth. 
And  you  will  find  out  what  Abner  Hill’s  was  worth,  and 
then  you  will  deduct  it  from  the  surplus  power  that  runs 
over  the  dam.  Well,  my  proposition  is,  that  such  a water- 
power only  is  not  worth  much  of  anything.  The  Wamesit 
power  is  treated  so,  while  not  building  mills  to  remain  idle. 
It  is  not  worth  much  of  anything.  It  is  a surplus  power  to 
be  used  at  such  times  as  it  may  be  used,  but  yet  it  is 


1118 


Argument  of  Gen.  B.  F.  Butler. 


valuable  as  an  adjunct  to  the  steam-engine.  Parker,  Wilder 
& Company  have  demonstrated  their  belief  about  a steam- 
engine.  They  prefer  to  use  their  Mill  No.  1 to  be  run  on 
surplus  power,  — which  required  a steam-engine  to  run  it 
most  of  the  summer,  — rather  than  to  use  their  Mill  No.  2, 
which  always  has  had  water  enough,  and  never  had  a steam- 
engine  which  they  used.  And  for  two  years  they  have  let 
Mill  No.  2 stand  idle,  and  moved  its  machinery  into  Mill 
No.  1. 

Mr.  Shattuck.  You  are  not  right  about  that. 

Mr.  Butler.  Yes,  sir.  I will  give  up  my  case  if  I am 
not  right.  They  moved  down  their  cards  from  Mill  No.  2 
to  Mill  No.  1.  Didn’t  John  Stott  so  testify?  If  I am  all 
wrong  about  this  it  is  of  no  use  for  me  to  argue  it  before 
intelligent  gentlemen.  For  two  years  they  have  let  No.  2 
(running  by  power,  where  they  had  never  started  by  steam) 
remain  idle,  on  the  same  work,  removing  the  set  of  cards 
from  it  to  No.  1,  where  they  have  run  by  surplus  power  and 
steam-engine  ; and  John  Stott  testifies  that  it  costs  about  as 
much  to  start  up  a steam-engine  as  to  run  it  for  a day. 
Well,  that  is  the  condition  of  thiugs,  is  it  not?  — the  same 
wTork,  because  the  same  machinery  is  moved.  Both  parties 
own  the  saw-mill.  Which  do  they  stop.  No.  1 or  No.  2? 
They  stop  No.  2,  and  move  part  of  the  machinery  into  No. 
1.  Now,  gentlemen,  you  can  judge  of  these  things  as  well 
as  I ; and  having  indicated  the  facts  I pass  from  those  two 
mills. 

In  the  case  of  the  Bleachery,  what  are  they  damaged? 
What  is  the  practical  damage,  while  there  is  a possibility  of 
user  on  their  part  ? But  they  bought  this  power  and  put  in 
the  wheel,  when  the  city  had  not  water,  for  the  purpose  of 
using  the  force-pump  in  time  of  fire.  In  the  working  days 
of  the  week  they  had  the  pumps  attached  to  their  steam- 
engine,  and  therefore  had  not  any  occasion  for  this.  But  as 
to  nights  and  Sundays,  they  had  no  way  of  starting  up  their 
pumps  unless  they  started  up  their  steam-power.  They 
bought  this  water  for  a small  sum,  and  they  have  never 
used  it,  except  its  proportion  for  washing  purposes,  and 
never  have  made  any  complaint,  upon  any  evidence  here, 
when  they  have  been  deprived  of  it.  Why  ? Because 
nights  and  Sundays  the  canal  is  always  full. 

And  there  is  Mr.  Wood.  He  has  always  found  it  con- 
venient not  to  complain,  and  run  his  mill  nights  and 
Sundays,  whenever  there  was  not  any  water,  allowing  the 
power  to  accumulate,  to  use  the  water  at  other  times. 
Why?  We  find  that  early,  he'  having  a wheel,  and  having 
a right  to  20  horse-power,  he  put  in  a 40  horse-power  wheel, 


Argument  of  Gen.  B.  F.  Butler. 


1119 


and  got  sued  for  it,  and  had  to  take  it  out  and  put  in 
another ; and  he  came  to  the  conclusion  that  it  was  best  to 
behave  pretty  well,  and  get  along  pretty  easy.  He  has  a 
right  to  so  much  water,  I agree,  as  is  the  value  for  his  grist- 
mill. He  runs  it  nights  as  well  as  day-times.  He  has 
always  power  to  run  at  night.  If  he  has  not  the  water,  and 
the  water  practically  is  of  no  use  to  him,  I don’t  want  to  say 
anything  more  about  it.  It  is  a small  matter,  in  any  event. 

So  far  as  those  dams  are  concerned,  gentlemen,  I don’t 
see  how  I can  aid  you  any  farther.  These  considerations 
are  the  considerations  that  move  me,  and  I put  them  before 
you.  If  you  are  to  be  moved  by  all  manner  of  fanciful  cal- 
culations, I can’t  help  it;  but  that  will  not  be  giving  the 
rule  of  damages,  which  is  the  market  value.  How  much  do 
you  think  Mr.  Faulkner’s  mill,  with  its  400  horse-power 
engine  to  make  up  the  power,  would  be  worth,  more  or 
less  ? 

Now,  gentlemen,  I come  to  another  proposition,  which  I 
don’t  think  was  fully  presented.  I pass  the  matter  of  dam- 
ages. I come  to  another  consideration,  bearing  upon  the 
rights  of  the  parties  here,  which  I don’t  think  has  fully 
found  lodgment  in  your  minds,  because  my  brother  Child 
used  the  word  " compensation  ” in  discussing  it.  Mr.  Whip- 
ple, the  grantee  of  all,  — all  of  whose  rights  are  now  deeded 
to  the  Wamesit  Power  Company  by  deed,  which  will  appear 
in  the  printed  record,  — granted  for  certain  hours  of  certain 
days  a certain  amount  of  water  to  be  taken  out  of  his  mill- 
pond (raised  by  his  dam)  by  means  of  a canal.  He  reserved 
all  other  water  to  himself, — reserving  68  feet  out  of  288  feet, 
which  is  quite  one-quarter  of  all  the  water.  One-fifth  would 
be  enough  in  any  calculation  for  our  purposes.  Now,  then, 
what  does  Mr.  Whipple  do  ? What  would  he  have  a right 
to  do?  Would  not  he  have  a right  to  take  the  water  out  of 
the  river  whenever  he  chose,  as  against  his  grantee?  Is  he 
bound  to  let  that  water  run  into  that  canal?  Could  not  he 
build  a canal  on  the  other  side  of  the  river,  deduct  the  dam, 
and  open  a hole  just  to  let  in  68  feet  a second,  and  use  it 
there?  I think  he  could.  Is  there  any  doubt  upon  that 
law?  Is  there  any  question  about  it?  Pardon  me,  can 
there  be  a possibility  of  doubt  upon  that?  Very  well.  Now, 
Mr.  Whipple  has  sold  to  the  City  of  Boston,  and  they 
choose  to  take  their  68  feet  of  water  out  of  the  Sudbury. 
Is  there  any  objection  that  you  know  of  in  law  to  their 
taking  it  out  up  there?  They  stand  here,  — and  they  have 
bought  the  right  to  take  all  the  rest  of  the  water,  too,  after 
taking  it  out.  They  have  settled  as  agreed  with  the  owner  of 
the  Wamesit  dam,  the  owner  of  all  the  resultants,  all  the 


1120 


Argument  of  Gen.  B.  F.  Butler. 


excess,  and  all  the  surplus.  Now,  the  city  chose  to  take 
theirs  out  of  Sudbury  river,  and  leave  all  the  rest  of  the 
water  except  68  feet  in  the  river.  Have  they  not  a right  to  ? 
Would  not  the  Wamesit  Power  Company  have  a right  to? 
What  is  the  answer?  Would  not  the  Wamesit  Power  Com- 
pany have  a right  to  take  out  up  to  Billerica,  if  they  chose, 
if  they  owned  the  land  up  there,  or  on  the  other  end  of  the 
dam  where  it  was  once  proposed  to  run  a canal,  or  anywhere 
else  ? The  deed  says  — 

Mr.  Shattuck.  Let  me  suggest  that  you  have  not  put 
in  the  whole  transaction.  If  you  put  in  the  whole  transac- 
tion, I will  not  object  to  the  deed.  If  you  turn  to  the 
record,  the  statement  is  that  the  gentleman  read  an  answer. 

Mr.  Butler.  I did  not  ask  you  not  to  object.  The  fact 
is  proved.  It  is  here  now.  Now,  then,  we  stand  here  : 
We  have  proved  from  the  Wamesit  Power  Company;  we 
have  put  in  a deed  of  68  cubic  feet,  more  than  one-filth  of 
the  water,  and  the  city  has  taken  that  out  at  the  Sudbury. 

Commissioner  Bussell.  I am  not  aware  that  that  deed  is 
proved.  It  was  offered,  as  I think  the  record  will  show,  as 
proof  that  the  City  of  Boston  was  joint  owner  with  the  peti- 
tioners of  the  water  at  the  Wamesit  dam ; and,  being  offered 
solely  for  that  purpose,  it  was  ruled  out,  on  the  ground  that 
it  was  immaterial  whether  the  city  was  a joint  owner  with 
the  petitioners,  or  whether  the  Wamesit  Power  Company 
was  joint  owner  with  the  petitioners.  The  ground  now 
taken  was  never  assigned  as  a reason  for  admitting  that 
deed.  It  was  then  offered  to  show  that  the  City  of  Boston, 
having  acquired  that  title,  proposed  to  put  in  proof  to  several 
petitioners  a deed  of  a portion  of  the  water-power,  which 
should  be  a compensation  for  the  amount  taken,  and  no 
ruling  was  made  upon  that  offer,  because  it  was  stated  that 
those  deeds  would  be  prepared  and  tendered  at  the  next 
adjournment,  and  that  is  the  last  that  I have  known  of  the 
matter. 

Mr.  Shattuck.  The  last  word  that  was  said  upon  the 
subject  was,  "I  can  only  rule  upon  that  which  is  offered  in 
evidence,  and  I rule  that  this  deed  is  inadmissible.”  It  is  on 
page  185  of  the  testimony. 

Mr.  Butler.  Very  well.  The  deed  is  before  you.  If 
you  say  you  cannot  hear  it,  I cannot  help  it.  Here  is  the 
fact  I offered  to  prove.  If  you  rule  it  out  for  a wrong 
reason,  I cannot  help  it. 

Commissioner  Russell.  It  was  not  offered  in  proof  of 
the  fact  which  you  now  offer  it  upon,  so  far  as  I now 
remember. 

Mr.  Butler.  Pardon  me,  Mr.  Child  argued  the  power 


Argument  of  Gen.  B.  F.  Butler. 


1121 


and  the  right  to  ask  compensation.  I propose  now  to  offer 
the  deed  and  see.  This  is  what  I offer.  I don’t  want  to  do 
anything  but  this.  I offer  the  deed  now. 

Mr.  Storey.  I object  to  it,  on  the  ground  that  the  case 
has  been  closed. 

Commissioner  Russell.  On  what  ground  do  you  offer  it 
at  this  stage  ? 

Mr.  Butler.  Because  up  to  this  hour  I supposed  it  was 
in.  I supposed  it  was  in  to  show  compensation  by  giving  a 
deed.  I offered  to  assure  them  of  the  conveying  of  this 
amount  of  water  by  deed. 

Mr.  Shattuck.  The  deed  never  has  been  produced. 

Mr.  Butler.  It  has  been  produced,  and  is  in  print,  I 
think. 

Commissioner  Russell.  The  deed  to  these  petitioners? 

Mr.  Butler.  I came  to  the  conclusion  that  it  was  of  no 
consequence ; that  the  water  was  ours,  and  that  we  were 
taking  it  out  above.  If  you  are  going  to  give  damages  for 
one-quarter  of  the  water  when  we  own  it,  I cannot  help  it. 

Commissioner  Russell.  If  you  say  that  you  have  pro- 
ceeded in  this  case  since  the  offer  of  that  deed  under  the 
misapprehension  and  on  the  ground  that  it  was  already  in 
evidence,  we  should  open  the  case  for  the  purpose  of  allow- 
ing you  'to  put  in  the  deed.  It  is,  of  course,  open  for  the 
other  party. 

Mr.  Butler.  [Interrupting.]  I have  talked  it  over  with 
Mr.  Child  two  or  three  times  upon  the  ground  that  that  was 
the  proposition.  My  first  idea  was  to  say,  — "We  will  deed 
the  water  to  you.” 

Mr.  Shattuck.  I will  not  object  to  your  putting  it  in  if 
you  will  put  in  the  whole  contract  with  the  city,  — the  whole 
arrangement,  in  which  it  says, — "In  consideration  of  so 
much  money  and  such  other  considerations,  which  other  con- 
siderations appear  in  the  vote  of  the  City  Council,”  etc.  If  , 
they  will  put  that  all  in,  they  may  do  so ; but  I object  to 
ex-parte  transactions. 

Commissioner  Russell.  I should  think  it  was  open  to 
you  to  put  that  in,  if  the  city  puts  in  the  deed. 

Mr.  Butler.  I don’t  know  whether  it  is  or  not.  I am 
not  making  any  bargain  at  all. 

Mr.  Storey.  I understood  them  to  say  that  they  would 
offer  the  deed.  I supposed  it  would  then  be  open  to  discus- 
sion. When  the  deed  is  offered  I shall  desire  to  be  heard 
upon  the  point. 

Commissioner  Russell.  Part  of  the  deed  was  read,  as  a 
part  of  the  offer  of  the  deed. 

Mr.  Butler.  We  can  have  it  here  in  a few  minutes.  It 


1122 


Argument  of  Gen.  B.  F.  Butler. 


is  the  first  time  that  I heard  that,  as  against  a third  party, 
the  consideration  of  a deed  made  any  difference.  It  does 
sometimes  in  insolvency.  The  question  is  whether  they 
own  it. 

Mr.  Storey.  The  discussion  upon  that  matter  covered 
some  two  pages  of  the  printed  record ; and  then  after  that 
General  Butler  said,  "There  is  one  thing  further;”  and 
then  he  proceeded  with  a long  argument. 

Commissioner  Kussell.  Does  the  report  show  the  offer 
of  the  other  deeds  and  the  suspending  of  this  until  they 
were  put  in  ? 

Mr.  Shattuck.  There  was  an  offer  to  produce  the  other 
deeds  at  the  adjournment ; but  they  were  not  put  in. 

Mr.  Storey.  [After  reading  a portion  of  the  discussion 
on  this  matter  from  the  printed  record.]  Thereupon  the 
title  was  ruled  out,  and  we  supposed  there  was  an  end  of  it. 
Now  why,  after  that,  there  should  have  been  any  misappre- 
hension, I am  at  a loss  to  see. 

Mr.  Butler.  The  question  is  whether  the  commissioners 
can  see  it.  I have  a copy  of  the  deed  here.  I have  not  the 
original  deed,  because^it  happens  to  be  locked  up,  and  the 
man  has  gone  away  with  the  key.  Here  is  a true  copy  of 
the  deed.  I offer  this  copy.  Do  you  want  me  to  produce 
the  original? 

Mr.  Storey.  We  don’t  care  anything  about  the  form. 

Mr.  Butler.  This  is  the  copy.  I offer  it.  It  commences 
as  follows  — 

Mr.  Storey.  What  is  it  offered  for? 

Mr.  Butler.  It  is  offered  to  show,  among  other  things, 
that  the  City  of  Boston  is  the  owner  at  the  Wamesit  dam, 
and  in  the  Concord  river,  of  more  water  than  the  amount 
taken  by  them  from  Sudbury  river,  by  the  taking  of  Sud- 
bury river,  and  that  they  have  taken  that  water  from  the 
river,  as  they  have  a right  to  do. 

Mr.  Shattuck.  When  you  offer  that  I ask  you  one  ques- 
tion : Is  not  that  water  conveyed  to  the  city  with  the  dis- 
tinct agreement  that,  if  it  cannot  be  put  into  our  flumes,  it 
shall  be  quitclaimed  to  you  ? 

Mr.  Butler.  I have  not  been  sworn,  and  have  not  been 
paid  my  witness  fees.  If  there  is  any  such  thing  you  will 
show  it.  I am  going  to  read  this  deed,  if  you  will  allow 
me. 

Mr.  Shattuck.  I object  to  your  reading  it. 

Mr.  Butler.  Now,  I will  answer  that  question.  I don’t 
understand  that  to  be  the  effect  of  it.  But  it  is  all  there  on 
the  record,  and  if  you  will  look  you  can  see  it  in  any  form. 
The  proposition,  Mr.  Shattuck,  — let  us  come  right  to  the 


Argument  of  Gen.  B.  F.  Butler. 


1123 


meat  of  this  thing,  — why,  the  city  pays  for  the  very  pur- 
pose of  putting  themselves  in  possession  of  this  water  to 
meet  your  case.  And  there  is,  I suppose,  somewhere  an 
agreement  that,  if  it  is  not  used  to  meet  your  claim,  it  may 
go  back.  But  if  it  is  used  to  meet  your  claim,  it  is  there  for- 
ever. It  is  not  to  put  in  your  flumes  ; I never  heard  about 
that.  If  it  was  not  used  in  settlement,  it  was  in  some  form. 
The  understanding  was  that  it  should  go  back  if  it  was  used 
in  settlement.  Then  it  is  gone  forever,  and  we  take  our 
money  instead.  That  is  the  effect  of  it.  I have  not  seen 
the  paper  for  a year  and  a half. 

Mr.  Storey.  This  deed  is  dated  the  first  of  December, 
1875,  and  our  petition  was  filed  the  14th  of  June  previous. 
I don’t  understand  that  any  transaction  occurring  subse- 
quently can  possibly  be  of  any  importance  in  this  case. 

Mr.  Butler.  Now,  the  first  thing  that  we  try  is,  shall 
I read  the  deed  ? 

Mr.  Storey.  The  first  question  is,  whether  the  deed  is 
competent. 

Mr.  Shattuck.  It  is  here,  and  a certain  portion  of  it  has 
been  read. 

Mr.  Butler.  I only  read  the  opening  just  for  identi- 
fication. 

Commissioner  Russell.  I would  like  to  refer  to  the  early 
part  of  the  discussion  as  to  the  offer  of  that  deed.  Mr. 
Storey  calls  to  my  attention  that  it  was  excluded  upon  the 
ground,  among  others,  that  the  rights  of  parties  were  fixed 
before  this  deed  was  made,  and  this  application  was  filed. 

Mr.  Shattuck.  That  was  one  reason  that  was  stated. 

Mr.  Butler.  Shall  the  deed  go  in,  or  remain  out? 

Commissioner  Russell.  Mr.  Storey  objects  that  the 
deed  is  shown  to  be  subsequent  in  date. 

Mr.  Butler.  There  is  no  offer  of  anything  now.  The 
question  is  whether  this  deed  is  to  go  in. 

Commissioner  Russell.  Mr.  Storey  objects  to  it  now 
on  the  ground  that  it  appears  by  the  date  of  the  deed  that 
it  is  subsequent  to  the  filing  of  that  petition,  and  that  the 
rights  of  parties  could  not  be  changed  after  the  taking  and 
after  the  petition  for  the  recovery  of  damages. 

Mr.  Storey.  As  Mr.  Russell  has  requested  that  I should 
read  the  early  part  of  the  discussion,  I will  read  it  now. 
[Reads  the  discussion.] 

Mr.  Butler.  Now,  I will  state  the  grounds  on  which  I 
offer  it,  and  on  which  I think  it  is  competent,  notwithstand- 
ing all  that  has  been  said.  I fail  to  appreciate,  I say  with 
all  frankness,  the  idea  that  it  was  not  competent  for  us  to 
show  that  the  city  were  joint  owners  of  this  property  with 


1124 


Argument  of  Gen.  B.  F.  Butler. 


the  petitioners,  if  it  is  joint.  If  it  is  several,  then  to  show 
that  we  had  a community  of  rights. 

Commissioner  Russell.  I take  it  that  your  title  is  not 
that  of  joint  tenants  in  any  event,  is  it? 

Mr.  Butler.  Joint  owner . I did  not  say  joint  tenants 
at  all.  " Tenants  in  common”  would  be  the  legal  phrase. 
I don’t  think  that  if  the  city  should  die  it  would  revert  to 
either  of  these  parties.  I am  not  instructed  that  way.  The 
criticism  would  hardly  be  necessary. 

I was  saying  that  we  have  a community  of  interest  in  any 
event,  and  we  are  joint  owners,  perhaps,  in  one  view  of  the 
deed.  The  title  to  this  water,  at  the  date  of  our  taking, 
stood  in  the  Wamesit  Power  Company  and  in  these  peti- 
tioners, in  certain  proportions,  and  in  certain  degrees  of 
interest.  I now  offer  to  show  that  a title  from  the  Wamesit 
Power  Company  to  an  amount  of  water  greater  than  was 
taken  by  the  city,  passed  into  the  city  by  sale,  and  that 
therefore  the  petitioners  are  asking  damages,  because  the 
city  proposes  to  take,  now  and  hereafter,  their  own  water 
out  of  this  river  at  Sudbury  or  Framingham  at  the  mouth  of 
Sudbury  river  — more  than  their  own  proportion.  I offer 
the  deed,  among  other  things,  for  that  purpose.  There  is 
no  fixing  of  anybody’s  rights  by  the  filing  of  the  petition. 
I take  it  that  the  city  has  got  a deed  from  the  owner  of  all 
the  water  that  they  take,  whether  the  deed  is  before  or  after. 
It  is  one  of  the  infelicities  of  trying  these  cases  without  their 
all  being  joined  in  one.  I agree  that  that  is  so,  and  I have 
taken  my  objection  upon  that.  Now,  I propose  to  show  that 
one  of  the  tenants  in  common  of  this  water,  being  the  para- 
mount owner  of  the  land  and  water-rights,  with  certain 
rights  carved  out,  has  sold  his  interest  to  the  city  in  the 
water  which  the  city  take,  and  that  the  city,  in  any  event, 
are  jointly  interested  in  these  damages,  whatever  they  may 
be  in  that  view.  But  a still  further  and  bottom  view  is  that 
they  own  the  water  which  they  take,  with  right  to  take  it 
anywhere  they  please  on  earth.  They  have  got  a right 
to  sixty-eight  cubic  feet  of  water  forever  by  deed,  and  you 
are  called  upon  to  give  damages  for  their  taking  their  own 
water  in  their  own  way,  leaving  the  water  that  belongs  to 
these  parties  in  the  river,  to  run  into  the  canal.  That  is  the 
ground  on  which  I offer  the  deed. 

[Idle  commissioners  confer  together.] 

Commissioner  Russell.  We  are  all  of  opinion  that  the 
deed  is  inadmissible,  even  for  the  changed  purpose  for  which 
it  is  now  offered. 

Mr.  Butler.  I take  it  that  it  may  be  printed  in  the 
record  for  the  purpose  of  showing  what  I did  oiler. 


Argument  of  Gen.  B.  F.  Butler. 


1125 


Commissioner  Russell.  I think  that  is  all  apparent.  I 
think  that  all  you  have  said  has  been  taken  down. 

The  deed  was  stated  to  contain  a certain  conveyance,  and 
to  be  offered  for  a certain  purpose ; and  I take  it  that  is 
the  usual  way  in  which  a question  of  that  kind  goes  up,  and 
not  by  putting  in  the  deed.  It  is  by  way  of  offering  it. 

Mr.  Butler.  It  is  for  the  purpose  of  showing  what  it 
does  contain.  The  principal  parts  are  in  before ; but  I 
would  rather  have  it  exactly. 

Commissioner  Russell.  I think  there  is  no  objection  to 
printing  the  whole  deed,  if  you  desire  to  have  it  printed,  as 
a document. 

Mr.  Shattuck.  If  the  City  Council  desire  to  have  this 
printed  as  a part  of  that  offer,  I would  like  to  have  the  vote 
printed. 

Mr.  Butler.  Put  it  in  now.  I don’t  want  to  be  threat- 
ened with  that  vote  any  more.  I want  it  in. 

Mr.  Shattuck.  It  is  no  intimidation,  General. 

Commissioner  Russell.  I stated  Mr.  Shattuck’s  offer  the 
other  day  to  be,  that,  if  General  Butler  offered  that  deed,  he 
wanted  to  offer  the  other,  and  not  that  he  offered  it  per  se . 
I don’t  understand  Mr.  Shattuck  to  put  the  other  in,  the  deed 
being  ruled  inadmissible. 

We  shall  have  to  go  on  without  that  deed  and  without  that 
title,  as  at  present  instructed. 

Mr.  Butler.  I desire  that  your  Honors  will  see  that  I 
get  the  full  benefit  of  the  point. 

Commissioner  Russell.  Certainly,  sir. 

Mr.  Butler.  Because  I have  a strong  opinion  that  a man 
does  not  pay  for  what  he  owns.  It  may  be  so  in  this  case, 
however. 

We  now  come  to  another  series  of  considerations,  and  that 
is  this  : What  title  have  these  parties  to  this  water  at  all? 

It  is  proved,  I suppose,  if  anything  in  this  case  is  proved, 
first,  that  the  Middlesex  Canal  took  this  water  under  right  of 
eminent  domain,  or  otherwise  (it  is  not  quite  certain  how), 
and  used  it  all  up  in  the  summer  time,  and  in  the  dry  time, 
to  fill  their  canal  between  Boston  and  Billerica,  or  Billerica 
and  the  Merrimack.  It  is  proved,  if  anything  can  be  proved, 
that,  being  duly  incorporated  to  run  a canal,  they  had  tow- 
paths  and  land,  which  are  found  in  their  possession  in  Bil- 
lerica, for  the  purpose  of  a canal,  and  for  that  only.  It  is 
proved  that  they  were  allowed  to  purchase  certain  mill-sites, 
as  incidental  to  their  canal,  simply.  Now,  then,  they 
diverted  the  water ; and  the  presumption  of  law  is,  I take 
it,  beyond  all  question,  that  the  owners  below  were  once 
paid  for  that  diversion.  Then  it  is  shown  beyond  all  contro- 


1126 


Argument  of  Gen.  B.  F.  Butler. 


versy,  so  far  as  1 can  see,  that  the  Middlesex  Canal  owned 
that  water  up  to  1862,  with  a right  to  divert  it ; and  nobody 
could  interfere  with  that  right,  by  the  decision  of  the 
Supreme  Court;  that  in  1861  or  ’62  (’62,1  think),  there 
was  a judgment  of  forfeiture  against  the  canal.  Now,  then, 
what  is  the  effect  of  that  judgment  of  forfeiture  ? In  discuss- 
ing the  correlative  question  of  the  Talbots,  Judge  Abbott 
insists  that  it  allowed  the  property  to  go  back  — to  revert  to 
the  original  mill-owners,  and  that  the  Talbots,  being  paying 
proprietors,  were  the  mill-owners.  I endeavored  to  impress 
upon  the  minds  of  the  commissioners,  — with  what  success  I 
know  not,  — that  the  right  to  raise  a head  of  water  by  a dam 
higher  than  the  old  mill-dam,  and  using  that  water,  was  a fran- 
chise from  the  canal,  necessary  for  its  existence  ; that  it  could 
not  be  deeded  away,  if  it  was  attempted  to  be  deeded  away, 
nor  disposed  of  by  the  Canal  Company,  and  that  when,  there- 
afterwards,  a judgment  of  forfeiture,  because  of  neglect  of 
user  or  misuser  of  corporate  duty,  took  place,  all  the  fran- 
chises were,  in  the  language  of  the  judgment,  seized  to  the 
Commonwealth.  They  are  forfeited.  Forfeited  to  whom? 
Forfeited  to  the  men  who  have  sold  the  rights?  Oh,  no. 
Forfeited  to  whom?  Not  to  the  canal.  They  are  forfeited 
against  them.  Forfeited  to  whom?  Seized  to  the  Com- 
monwealth. 

Now,  then, — and  I had  supposed  that  nobody  had  any 
doubt  about  that ; and  I supposed  that  all  these  rights  went 
to  the  Commonwealth  or  to  the  king,  and  I did  not  therefore 
cite  any  authorities.  But  I come  now  to  the  great  and  lead- 
ing case  in  the  Second  Term  Reports,  515,  — The  King  vs. 
Thomas  Amery,  and  The  King  vs.  John  Monk,  — where  the 
matter  was  very  much  discussed. 

In  the  first  of  these  there  was  an  information  in  the 
nature  of  a quo  warranto  against  the  defendant  for  exercising 
the  office  of  alderman  in  the  city  of  Chester.  As  the  city 
did  not  appear,  the  question  was,  what  was  the  effect  of  the 
judgment?  and  the  only  thing  that  troubled  them  was, 
whether  there  must  not  be  an  actual  writ  of  forfeiture. 

" Besides,  Lord  Holt’s  opinion,  in  1 Show.  275,  is  decisive  ; 
for  he  expressly  says  that  no  writ  of  seizure  is  necessary. 
And  he  gives  as  a reason  for  the  distinction  between  the 
writs  which  were  mentioned  by  Pemberton  in  that  case,  that 
where  there  are  profitable  franchises  to  be  seized,  the  sheriff 
is  to  take  them,  and  account  to  the  king  in  exchequer.” 

Profitable  franchises,  it  will  be  observed,  to  be  seized. 

" But  where  incorporeal  franchises  are  to  be  seized,  which, 
in  their  nature,  cannot  be  profitable  in  the  king’s  hands,  as, 
for  example,  a Court  leet,  there  it  appears,  in  Randall’s 


Argument  of  Gen.  B.  F.  Butler. 


1127 


Entries,  540,  that  the  leet  was  presently  in  the  king’s  hands 
without  any  seizure  at  all.  This  is  similar  to  the  pro- 
ceedings in  scire  facias;  there,  if  the  party  do  not  appear, 
the  thing  is  seized  into  the  king’s  hands  at  once.  No  case 
has  ever  been  adjudged  against  Holt’s  opinion ; for  as  to  the 
Malmsbury  case  being  reversed,  although  this,  amongst 
other  things,  has  been  assigned  by  the  counsel  for  the  re- 
versal, that  there  did  not  appear  to  have  been  a writ  of 
seizure,  yet  that  is  merely  conjecture,  for  it  does  not  appear 
for  what  it  was  reversed. 

"It  being  now  proved  that  a corporation,  sued  by  their 
corporate  name,  may  be  dissolved  by  a judgment  of  seizure 
for  default  in  not  appearing,  and  that  the  words  ' quosque  ’ 
etc.,  are  only  form,  and  that  no  writ  of  seizure  is  necessary, 
it  remains  next  to  show,  of  which  there  can  be  very  little 
doubt,  that,  if  the  king  had  a right  to  seize  the  liberties,  he 
had  a right  to  grant  them  out  again  to  another  description  of 
persons.  Even  if  the  corporation  itself  — that  is  the  ideal 
soul  — were  not  dissolved  by  the  judgment  of  seizure, 
according  to  what  is  suggested  by  Eyre  in  Smyth’s  case,  yet 
all  the  franchises  being  absolutely  vested  thereby  in  the 
king’s  hands,  and  the  separation  between  the  natural  and 
politic  body  complete,  the  old  corporation  was  out  of  its 
place,  and  the  king  might  substitute  a new  body  in  its 
room.” 

For  that  I take  it  (I  took  it  before,  and  I find  myself 
grounded  upon  that  belief)  in  this  case,  that  where  a corpora- 
tion forfeits  its  franchises  and  rights,  all  its  franchises,  and  all 
the  property  which  is  owned  necessary  to  carry  on  its  fran- 
chises, are  immediately  forfeited  to  the  Commonwealth,  and 
vested  in  the  Commonwealth. 

Mr.  Shattuck.  Is  there  any  authority  for  that  in  this 
country  ? 

Mr.  Butlkr.  Yes,  sir ; plenty  of  them.  That  is  only 
one  book.  Look  over  there,  and.  you  will  see  more. 

It  was  the  right  to  try  the  charter  of  the  city.  Now,  I 
say  again,  and  I want  to  make  myself  distinctly  understood, 
that  whenever  a corporation  is  dissolved,  its  franchises, 
and  the  property  necessary  to  carry  on  its  franchises  (that 
is,  belonging  to  it,  taken  for  that  purpose)  become  also 
forfeited  to  the  king.  As,  for  instance,  a railroad  becomes 
forfeited  to  the  Commonwealth  — why  would  not  the  road-bed 
be  forfeited,  or  would  only  the  track  be? 

Mr.  Shattuck.  If  you  can  find  any  authority  for  the 
road-bed  being  forfeited  to  the  Commonwealth  in  this  coun- 
try I should  like  to  know  it. 

Mr.  Butler.  Pardon  me.  I shall  be  able  to  show  you 


1128 


Argument  of  Gen.  B.  F.  Butler. 


in  a few  moments  that  they  cannot  sell  it  so  as  to  prevent 
the  common  right  of  the  Commonwealth  from  attaching. 
When  a railroad  is  dissolved,  where  does  the  road  go 
to  ? Is  there  any  doubt  on  this  subject  ? I had  supposed 
that  there  was  not ; I may  be  all  wrong.  The  Common- 
wealth grants  a common  highway,  to  be  carried  on  by  certain 
persons.  They  refuse  to  do  it.  The  Commonwealth  brings 
its  writ  of  quo  warranto  and  forfeits  the  charter.  Where 
does  that  highway  go  to  — railroad  or  other  highway  ? Does 
it  go  back  into  the  hands  of  the  men  ? Then,  in  the  language 
of  one  of  the  books  which  I will  show  you  in  a few  moments, 
it  would  be  a premium  to  those  men  to  act  in  such  a way  as 
to  get  it  dissolved,  because  they  would  thus  get  rid  of  their 
corporate  duties  and  have  their  property.  It  would  be  a 
premium  on  their  not  doing  their  duty. 

I will  read  from  the  case  of  Erie  and  Northeast  Railroad 
Co.  vs.  Casey,  26  Penn.  State  Reports,  287.  I will  only 
read  at  this  moment,  in  order  to  answer  Mr.  Shattuck,  part 
of  the  head-note  : — 

"When  a charter  is  constitutionally  repealed,  the  fran- 
chises are  resumed  to  the  State,  and  a railroad  belonging  to 
the  corporation  remains,  what  it  always  was,  public  prop- 
erty. 

" The  corporators  in  such  case  are  not  entitled  to  compen- 
sation, having  never  had  any  property  in  the  road,  and  the 
exertion  of  the  will  of  the  legislature  in  the  resumption  of 
their  franchises  did  them  no  injury  but  what  they  agreed  to 
submit  to.” 

Have  I not  fulfilled  the  bill  pretty  nearly,  Brother  Shat- 
tuck? 

"An  act  granting  corporate  privileges  to  a body  of  men,” 
says  the  court,  Black,  Justice,  "is,  when  accepted,  a contract 
between  a State  and  the  corporators.  It  is  not  worth  while 
now  to  try  whether  this  doctrine  will  stand  the  test  of  origi- 
nal principles.  It  is  sustained  by  everything  that  we  are 
bound  to  regard  as  authority,  by  the  decisions  of  all  the  Courts 
in  the  country,  by  the  opinion  of  the  legal  profession,  and 
by  the  general  acquiescence  of  the  people.  It  is  not  denied 
by  the  defendant,  or  by  anybody  else  who  has  attempted  to 
sustain  the  action  of  the  legislature  in  this  case.  Being  a 
contract,  it  cannot  be  rescinded  by  the  act  of  one  party  with- 
out the  consent  of  the  other.  A grant  of  corporate  privileges 
for  a specified  period  cannot  be  resumed  by  the  State  within 
such  period.  If  the  charter  be  without  limitation  as  to  time, 
it  is  power  forever  irrepealable. 

"It  does  not  follow  from  this  that  corporations  are  beyond 
the  reach  of  public  control.  When  the  privileges  they  enjoy 


Argument  of  Gen.  B.  F.  Butler. 


1129 


are  fraudulently  abused,  the  Courts  may  pronounce  them  for- 
feited. In  some  cases,  also,  the  legislature,  when  granting 
its  franchises,  reserves  to  itself  the  right  to  revoke  them. 
When  the  charter  contains  such  a stipulation,  it  is  as  much  a 
part  of  the  contract  as  anything  else  that  is  in  it.  The  leg- 
islative repeal  of  such  a charter  bears  no  resemblance  to  the 
judgment  of  a Court  against  the  corporation  on  a quo  war- 
ranto. They  proceed  upon  principles  as  different  as  the 
functions  of  the  legislature  are  different  from  those  of  the 
judiciary.” 

Now,  then,  let  us  go  a little  farther  : — 

" The  authority  given  by  the  act  of  October,  1855,  to  the 
defendant  to  take  possession  of  the  railroad,  is  asserted,  by 
the  plaintiff’s  counsel,  to  be  an  act  of  confiscation,  — a taking 
of  private  property,  for  public  use,  without  compensation.” 

That  is,  the  legislature  put  in  the  defendant  to  run  the 
road. 

" If  this  be  true  the  injunction  aught  to  be  awarded  ; for 
no  legislature  can  do  such  a thing  under  our  constitution. 
When  a corporation  is  dissolved  by  a repeal  of  its  charter 
the  legislature  may  appoint,  or  authorize  the  governor  to 
appoint,  a person  to  take  charge  of  its  assets  for  the  use  of 
the  creditors  and  stockholders  ; and  this  is  not  confiscation 
any  more  than  it  is  confiscation  to  appoint  an  administrator 
to  a dead  man,  or  a committee  for  a lunatic.  But  money  or 
goods  or  lands  which  are,  or  were,  the  private  property  of  a 
defunct  corporation,  cannot  be  arbitrarily  seized  for  the  use 
of  the  State  without  compensation  paid  or  provided  for. 
This  act,  however,  takes  nothing  but  the  road.  Is  that 
private  property  ? Certainly  not ! It  is  a public  highway 
solemnly  devoted,  by  law,  to  the  public  use.  When  the 
lands  were  taken  to  build  it  on  they  were  taken  for  public 
use  ; otherwise  they  could  not  have  been  taken  at  all.  It  is 
true  the  plaintiffs  had  a right  to  take  tolls  from  all  who 
travelled  or  carried  freight  on  it,  according  to  certain  rates 
fixed  in  the  charter,  but  that  was  a mere  franchise  ; a privi- 
lege derived  entirely  from  the  charter,  and  it  was  gone  when 
the  charter  was  repealed.  The  State  may  grant  to  a cor- 
poration, or  to  an  individual,  the  franchise  of  taking  tolls 
on  any  highway,  opened  or  to  be  opened,  whether  it  be  a 
railroad  or  river,  canal  or  bridge,  turnpike  or  common  road. 
When  the  franchise  ceases  by  its  own  limitation,  by  forfeiture 
or  by  repeal,  the  highway  is  thrown  back  on  the  hands  of 
the  State,  and  it  becomes  our  duty,  as  the  sovereign  guar- 
dian of  the  public  rights  and  interests,  to  take  care  of  it. 
She  may  renew  the  franchise,  give  it  to  some  other  person, 
exercise  it  herself,  or  declare  the  highway  open  and  free  to 


1130 


Argument  of  Gen.  B.  F.  Butler. 


all  people.  If  the  railway  itself  was  the  private  property 
of  the  stockholders,  then  it  remains  theirs,  and  they  may 
nse  it  without  a charter,  as  other  people  use  their  own  ; run 
it  on  their  own  account ; charge  what  tolls  they  please  ; close 
it  or  open  it  when  they  think  proper ; disregard  every  inter- 
est, except  their  own.  The  repeal  of  charters,  on  such 
terms,  may  be  courted  by  every  railroad  company  in  the 
State  ; for  it  would  have  no  effect  but  to  emancipate  them 
from  the  control  of  law,  and  convert  their  limited  privileges 
into  a broad,  unbounded  license.” 

And  here  they  laid  out  a railroad  over  a canal.  Now, 
then,  if  that  is  so,  let  us  see  where  we  are.  In  the  first 
place  let  us  answer  Judge  Abbott  this  morning.  He  ad- 
mits,* does  he  not,  that  that  which  is  necessary  to  a corpora- 
tion for  the  purpose  of  exercising  its  franchise  and  doing  its 
public  duty  cannot  be  sold  by  them  ? Was  not  that  his  ad- 
mission ? " That  which  is  necessary  to  exercise  its  public 

duties  and  its  corporate  functions  cannot  be  sold.”  If  there 
is  anything  more  necessary  than  water  to  carry  on  a canal  I 
don’t  know  what  it  is,  — and  the  tow-path,  and  everything 
else  incident  to  the  canal. 

Now,  in  the  case  of  Commonwealth  vs.  Smith,  which  I 
have  already  put  in  my  brief  (10  Allen,  455),  the  duties  and 
liabilities  imposed  by  the  charter  of  the  railroad  are  stated. 
They  cannot  mortgage,  they  cannot  do  anything  without 
legislative  act,  of  that  which  is  necessary  for  their  public 
functions.  Well,  why?  Because  it  belongs  to  the  State. 
It  was  taken  by  right  of  eminent  domain.  That  part  of  it 
can  be  taxed ; every  other  part  of  it  may  be  taxed  in  the 
towns  through  which  it  runs,  under  decision  of  Judge  Shaw, 
referred  to  in  my  brief.  It  belongs  to  the  State,  and  is  in 
the  State.  It  is  not  private  property  at  all,  and  never  was 
private  property.  A railroad  corporation  has  no  private  prop- 
erty in  its  road-bed.  A canal  corporation  has  no  private 
property  in  its  canal  and  in  the  waters  that  fill  it,  and  they 
cannot  sell  it,  and  they  did  not  sell  it,  as  Judge  Abbott  ad- 
mits, to  Mr.  Talbot ; but  they  reserved  it.  Very  well,  then, 
when  did  it  ever  come  into  the  hands  of  Mr.  Talbot?  When 
did  Mr.  Talbot  ever  get  title  to  it?  He  did  not  by  the  deed, 
because  it  was  a reservation.  Did  he  buy  the  forfeiture? 
Clearly  not ; because  it  was  seized  to  the  Commonwealth. 
Test  it  for  a moment.  Suppose  the  next  hour,  or  in  the 
same  chapter,  the  Commonwealth  have  gone  on  to  say,  "The 
franchises  and  rights  of  the  Middlesex  Canal  are  hereby 
granted  to  A B,  or  C D,  to  carry  on  a canal  forever.”  What 
would  pass  to  them?  Would  not  the  road-bed,  paid  for 
already?  Would  not  the  head  of  water?  Would  not  the 


Argument  or  Gen.  B.  F.  Butler. 


1131 


right  to  take  tolls  ? Would  these  men  have  been  paid  twice 
over  for  wrater  taken  for  the  canal?  No.  Why  not?  Be- 
cause it  was  vested  in  the  public.  It  was  paid  for  by  pri- 
vate corporation  carrying  on  public  work ; paid  for  by  the 
public,  and  once  paid  for,  there  is  the  end  of  remuneration 
until  by  non-user  they  get  twenty  years  adverse  possession ; 
and  they  cannot  until  they  do  get  twenty  years  adverse  pos- 
session. And  all  this  was  held  in  abeyance  until  1862,  and 
it  was  taken  in  1875.  Therefore  the  Talbots  own  nothing 
here  of  this  water.  And  I do  not,  and  need  not,  put  it 
upon  the  ground  that  the  City  of  Boston  has  a right  to  take 
my  property.  I do  put  it  upon  the  ground  that  neither  of 
the  Talbots  had  a right  to  complain.  They  bought  nothing 
of  this  water.  They  bought  it  subject  to  prior  use  in  the 
canal.  The  prior  use  of  the  canal  takes  it  all,  — that  is  the 
testimony,  — and  a great  deal  jnore  than  there  is  here.  The 
prior  use  of  the  canal  takes  it  all.  Are  they  going  to  have 
any  more  — any  other  damages  ? 

In  the  case  of  Coe  vs.  the  Columbus,  Piqua  and  Indiana 
Railroad  Company,  10  Ohio  State  Reports,  375,  — which  is 
on  my  brief,  — this  language  is  used  by  the  court : — 

"Nor  do  we  think  the  general  language  of  the  first  section 
of  the  act  of  1848,  which  confers  the  power  to  'acquire  and 
convey  at  pleasure,  all  such  real  and  personal  estate  as  may 
be  necessary  and  convenient  to  carry  into  effect  the  objects  of 
the  incorporation,’  is  to  be  understood  to  authorize  a rail- 
road corporation  to  convey  all  the  rights  and  interests  in 
property  which  it  may  acquire.  Like  many  other  general 
words,  they  must  be  ' t es trained  into  the  fitness  of  the  matter 
When  power  is  given  to  acquire  an  interest  in  real  estate  for 
the  single  and  exclusive  purpose  of  the  exercise  of  a fran- 
chise, and  particularly  where  to  acquire  such  interest  there  is 
a delegation  of  the  power  of  eminent  domain , the  interest 
cannot  be  separated  from  the  use  to  which  alone  it  can  be  ap- 
plied, and  if  the  franchise  cannot  be  conveyed,  neither  can 
the  interest  on  real  estate  with  which  it  is  connected .” 

Now  let  us  see  how  it  operates  upon  these  parties  below. 

They  are  presumed  to  have  received  the  money  — their 
ancestors  — for  the  diversion  of  this  water.  It  is  diverted 
to  the  Commonwealth,  and  once  gone  they  have  no  right  to 
reclaim  it.  They  have  no  right  to  be  paid  again.  And  the 
Commonwealth  may  grant  it  as  she  chooses. 

“ He  who  hath  an  estate  may  condition  what  lie  will,” 

saith  the  shepherd  to  Touchstone.  The  Commonwealth 
may  grant  it  to  the  City  of  Boston,  and  when  they  grant  it, 
even  by  general  words,  it  may  pass.  And  this  is  the  doctrine, 


1132 


Argument  of  Gen.  B.  F.  Butler. 


both  ways,  in  the  case  of  Heyward  and  others  vs.  the  Mayor 
of  New  York,  in  7 New  York  Reports,  314.  This  was  a 
case  where  the  City  of  New  Yord  had  taken  a piece  of  land 
for  an  almshouse,  and  were  allowed  to  take  it  in  fee  for  an 
almshouse  by  the  act.  They  came  to  the  conclusion  not  to 
use  it  for  an  almshouse  any  longer ; and  thereupon  Mr. 
Charles  O’Connor  brought  a suit  for  the  original  owner  — for 
the  quarter  of  the  land.  The  question  then  arose  what  should 
be  done  with  it. 

" Shall  the  same  power  determine  the  estate  or  quantity  of 
interest  in  the  lands  which  shall  be  taken?  Whether  an 
estate  for  years,  for  life,  or  in  fee  ; whether  a right  of  rever- 
sion in  any  event  shall  be  left  in  the  owner,  or  whether  a 
mere  easement  shall  be  taken  without  divesting  the  fee  and 
general  ownership  of  the  land?  It  seems  to  me  entirely 
clear  that  all  these  powers  must  of  necessity  rest  in  the  legis- 
lature, in  order  to  secure  the  useful  exercise  and  enjoyment  of 
the  right  in  question.  A case  might  arise  where  a temporary 
use  would  be  all  that  the  public  interest  required.  Another 
case  might  require  the  permanent  and  apparently  the  per- 
petual occupation  and  enjoyment  of  the  property  by  the  pub- 
lic ; and  the  right  to  take  it  must  be  coextensive  with  the 
necessity  of  the  case,  and  the  measure  of  compensation 
should  of  course  be  graduated  by  the  nature  and  duration  of 
the  estate,  or  interest  of  which  the  owner  is  deprived. 
Where,  as  in  this  case,  a fee  simple  absolute  was  deemed 
necessary,  and  was  taken,  all  the  loss  and  damage  of  the 
owners  and  others  interested,  by  and  in  consequence  of  their 
relinquishing  the  same,  was  directed  to  be- and  was  in  fact 
paid.  This  must  necessarily  have  included  the  whole  value 
of  the  inheritance.  Th§re  would  be  no  justice  or  equity  iii 
paying  the  owners  anything  more  at  any  time,  or  under  any 
circumstances.  That  the  use  by  the  public  of  the  lands  in 
question  might  cease  was  a possibility,  but  was  not  contem- 
plated at  the  time.  The  site  of  the  almshouse  at  Bellevue 
was  supposed  to  be  fixed  and  permanent,  and  the  annexation 
to  it  of  the  lands  in  question  was  designed  and  expected  to 
be  also  permanent.  There  could,  therefore,  be  no  just 
measure  of  compensation,  but  the  whole  value  of  the  lands, 
with  the  damages  for  relinquishing  them ; and  that  being 
paid,  justice  could  not  be  done  to  the  corporation  of  the  city 
without  allowing  the  latter  to  hold  the  lands,  as  the  act 
provides,  in  fee  simple  absolute.” 

Now,  then,  apply  that  for  a moment  here.  Here  was  a per- 
petual corporation,  for  perpetual  use,  to  take  toll  forever. 
They  were  paid  forever. 


Argument  of  Gen.  B.  F.  Butler. 


1133 


In  Paige’s  Reports,  vol.  5,  p.  137,  Varick  vs.  Smith  and 
the  Attorney- General,  we  find  the  following : — 

" Where  a dam  is  erected  upon  an  ancient  stream  to  obtain 
a head  of  water  for  the  use  of  one  of  the  State  canals,  the 
surplus  waters  of  the  stream,  not  wanted  for  public  use, 
and  which  continue  to  flow  over  the  dam  and  down  the 
ancient  channel,  cannot  legally  be  diverted  by  a lessee  of  the 
surplus  waters  of  the  canal  to  the  injury  of  the  owners  of 
mill  privileges  on  the  stream  below  the  dam.” 

That  was  one  matter  that  was  under  consideration. 

w The  State  took  for  public  use  one  one-hundredth  part 
of  the  water  of  the  Oswego  river,  which  was  private  prop- 
erty. In.  taking  this  the  position  of  the  whole  water  was 
changed.  This  change  neither  divested  the  owner  of  his 
title,  nor  gave  the  State  any  right  in  and  to  it.  The  original 
owner  is  bound  not  to  use  it  in  a manner  which  is  incom- 
patible with  the  public  use ; but  he  is  obliged  thus  to  use  it 
in  its  changed  position,  and  is  not  thereby  wholly  divested 
of  his  right.” 

But  where  the  State  does  this  act  itself  there  may  be  re- 
version. And  there  is  a pretty  instructive  case  in  the  Law 
Reporter,  14th  volume,  page  167,  People  of  the  State  of 
New  York  vs.  Hugh  White. 

" Where  land  belonging  to  a citizen  was  taken  under  the 
act  of  1819,  for  the  construction  of  the  Erie  canal,  and 
used  as  the  bed  of  the  canal  for  a number  of  years,  and  was 
afterwards  abandoned  by  the  State,  and  a canal  located  in  a 
different  place  ; such  land,  when  no  longer  necessary  for 
public  use,  reverted  to  the  original  owner,  although  the  act 
under  which  it  was  taken  declared  it  should  vest  in  the  State 
in  fee  simple.” 

" There  is  another  ground  on  which  I think  the  plaintiffs’ 
title  cannot  be  sustained.  The  defendant  has  had  no  just 
compensation  for  his  land.  Compensation  was  made  to  him 
on  the  supposition  that  he  was  to  be  benefited  by  the  loca- 
tion of  the  canal  on  his  premises,  and  it  was  only  the  dam- 
ages over  and  above  such  benefit  that  were  awarded  to  him. 
The  benefit  has  now  ceased  by  the  abandonment  of  the 
canal,  and  the  compensation  can  no  longer  be  regarded  as 
justly  made.” 

That  was  a direct  abandonment  by  the  State.  This  was 
an  abandonment  by  a corporation,  and  it  illustrates  the 
difference  exactly.  Now,  it  will  be  observed  that  the  ques- 
tion is : These  gentlemen  took  their  title,  it  is  said. 

They  took  it,  perhaps,  without  knowledge  of  this.  In  the 
case  of  Talbot,  he  clearly  had  knowledge,  for  it  was  reserved. 
But  in  the  case  of  Yoorhees  vs.  the  Presbyterian  Church  of 


1134 


Argument  of  Gen.  B.  F.  Butler. 


Amsterdam,  8 Barbour,  135,  the  Court  bold,  first,  that 
where  a church  property  was  taken  in  the  name  of  the  indi- 
vidual trustee,  it  was  held  in  trust  for  the  church,  and  that 
whoever  bought  the  pew  must  take  notice  of  that  title. 

"The  evidence  showed  that  the  plaintiff,  S.  Voorhees, 
had  knowledge  of  facts  sufficient  to  put  him  on  inquiry  as 
to  the  trust  in  favor  of  the  corporation.  It  is  a well-settled 
principle,  that  if  a party  acts  in  the  face  of  facts  and  cir- 
cumstances, which  are  sufficient  to  put  him  on  inquiry,  he 
acts  contrary  to  good  faith,  and  at  his  peril.  The  plaintiffs, 
therefore,  do  not  bring  themselves  within  the  fifty-fourth  sec- 
tion of  the  article  relative  to  uses  and  trusts.  They  are  not 
purchasers  without  notice  of  the  resulting  trust  in  favor  of 
the  corporation,  within  the  meaning  of  the  section.  The 
conveyance  of  the  pew  in  question  to  Voorhees  described  it 
as  being  in  the  new  brick  Presyterian  Church,  in  the  village 
of  Amsterdam.  The  church  was  erected  as  a house  of  pub- 
lic worship  for  the  members  of  the  Presbyterian  Church  of 
that  village.  Voorhees  was  bound  to  inquire  to  what  re- 
ligious corporation  connected  with  the  Presbyterian  denomi- 
nation the  church  referred  to  in  his  deed  belonged,  and 
what  interest  such  corporation  had  in  the  church.” 

And  therefore  they  charge  him  w.th  notice. 

Now,  if  I am  right,  — and  I cannot  see  howl  can  be  other- 
wise than  right  in  this, — then  there  has  been  no  reversion 
of  this  property. 

But  another  curious  question,  if  reversion  comes  in,  would 
be  raised.  Mr.  Whipple  was  the  owner  of  this  property 
when  it  was  taken.  He  sold  so  much  out  of  the  river,  and 
a new  quantity  of  water  reverted  to  him  in  1862,  after  he 
sold  to  Mather  and  others.  Whom  did  that  belong  to? 
Did  it  revert  to  him  or  to  Mather?  Mather  bought  it  in  1867. 
The  new  quantity  of  water  that  did  not  belong  to  him  was 
put  into  the  stream  by  this  means.  It  was  turned  back. 
Did  that  belong  to  him  or  to  Mather?  But  1 insist  that 
there  is  no  doctrine  of  reversion.  And  this  applies  to 
everybody  clear  down  to  Lawrence. 

This  question  is  before  you,  gentlemen.  We  rely  upon 
it  with  some  degree  of  certainty.  We  believe  that  you 
cannot  give  damages  here  at  any  rate.  W e shall  ask  you  to 
let  the  facts  so  appear  that  we  may  be  able,  by  an  objection 
to  the  acceptance  of  the  report,  to  get  at  the  law  without 
the  necessity  of  going  through  with  the  intervention  of  a 
jury  nn  all  these  points. 

Now,  I believe  I have  brought  to  your  attention  all  I need 
to  upon  these  several  cases.  And  I only  desire  to  say  that 
my  instruction  is,  — and  I am  acting  for  the  city  in  that 


Argument  of  Gen.  B.  F.  Butler. 


1135 


regard,  — that  they  desire  to  pay  only  that  which  is  just  and 
right ; and  they  desire  to  pay  that ; and  they  are  willing  to 
pay  that ; and,  as  trustees  to  the  public,  they  are  not  willing 
to  pay  any  more.  They  do  not  believe  that  large  sums  of 
money  ought  to  be  transferred  from  their  treasury  to  these 
parties,  which  would  accumulate  before  any  damage  was 
done  to  them,  substantially,  — for  it  is  a question  of  sub- 
stantial damage,  — would  accumulate  to  a very  great 
amount.  And  while  I bow  to  the  decision  of  the  commis- 
sioners, as  announced  by  their  chairman,  that  this  taking  is 
of  all  the  water  in  the  Sudbury  river,  and  that  the  word 
"withdrawn,”  in  the  statutes, -only  refers  to  a time  and  means 
to  fix  a time  within  which  a complaint  is  to  be  brought ; yet 
I still  think  that,  upon  the  question  of  substantial  damage  by 
the  taking,  the  Court  have  a right  to  look  at  in  what  manner 
and  how  it  will  be  taken.  For  instance,  suppose  you  take 
none  until  next  September,  or  only  take  a few  gallons  until 
next  September  or  October,  or  the  year  when  our  dam  is  to 
be  closed,.  — is  it  to  be  possible  that  we  shall  pay  lor  water 
which  they  enjoy?  Suppose,  in  the  building  of  these  reser- 
voirs, we  had  knowledge,  as  one  of  the  witnesses,  Mr. 
Shedd,  agrees,  that  reservoirs  on  the  stream  store  up  a great 
deal  of  water,  and  make  the  water  a great  deal  steadier,  and 
we  are  going  to  make  those  large  reservoirs,  — is  not  that  a 
fact  to  be  considered?  It  is  evident  that  these  two  streams 
are  very  much  better  from  the  making  of  reservoirs  ; and  I 
insist  again  that  that  does  not  belong  to  anybody ; that 
they  are  only  entitled,  in  the  language  of  the  Faulkner  and 
Talbot  petition,  to  the  natural  flow  of  the  river. 

The  case  which  your  Honor  called  my  attention  to,  of  the 
house  in  Cambridgeport,  where  the  two  were  built  together 
and  joined  without  any  partition  wall,  and  the  city  cut  down 
the  one,  I don’t  think  that  that  is  material  upon  this,  if  that 
is  put  upon  the  ground  that  one  part  of  the  house  was 
entitled  to  the  support  of  the  other  by  the  contract,  and  the 
agreement  to  build  the  other.  But  where  is  the  contract? 

Commissioner  Russell.  I think  you  are  in  error  there, 
General  Butler.  I think  it  was  not  put  upon  any  right,  but 
expressly  upon  other  grounds  than  that  of  right  to  support. 

Mr.  Butler.  It  was  not  put  upon  the  ground  that  it  was 
a right  to  support,  that  it  would  be  a party-wall,  but  that 
the  two  parties  built  the  two  houses  together,  under  an  agree- 
ment ; and  the  Court  said  it  was  but  equitable  that  the  bouse 
should  have  the  support.  I don’t  remember  the  name  of  the 
case,  but  your  Honors  may  look  it  over.  The  way  I distin- 
guish it  is  : Here  there  never  was  a community  of  interest. 
There  is  no  obligation  on  anybody.  It  cannot  be  predicated 


1136 


Argument  of  Gen.  B.  F.  Butler. 


for  a moment  in  regard  to  these  reservoirs.  Does  not  Mr. 
Simpson  change  his  mill-dam  at  will  — take  it  up  and  put  it 
down?  Cannot  he  open  it  and  leave  it?  Cannot  Mr.  Talbot 
open  and  leave  his?  Cannot  the  Wamesit  Company  open 
and  leave  theirs?  And  have  the  Middlesex  Company  a right 
to  complain?  Not  at  all.  They  cannot  complain  against 
anybody  for  doing  it.  Can  Mr.  Talbot  or  Mr.  Simpson, 
either  of  them,  call  upon  those  below  to  aid  him  in  keeping 
up  his  dam,  on  the  ground  that  it  will  make  more  water  for 
them?  Well,  clearly  not.  Then  how  can  anybody  claim  to 
have  any  such  ownership  in  that  advantage  as  to  give  a right 
to  damages?  Hut  it  is  said  that,  when  they  bought  the  prop- 
erty, they  bought  it  with  the  expectation  that  in  the  ordinary 
course  of  events  they  would  have  so  much  water  made  by  the 
dam,  and  that  when  anybody  alters  the  ordinary  course  of 
events,  that  is  a damage.  I say,  damnum  absque  injuria. 
It  may  be  a loss.  For  instance,  suppose  I buy  a detached 
piece  of  property  in  Boston,  and  my  neighbor  goes  and  buys 
a whole  square.  Its  value  is  because  of  the  trade  that  is  in 
all  the  neighboring  shops  that  attract  trade  there.  But  my 
neighbor  chooses  to  go  and  buy  the  whole  square  and  tear 
down  all  the  buildings,  and  lay  it  out  in  pleasure-gardens. 
Cannot  he  do  it  without  my  calling  upon  him  for  damages  ? 

•>  And  yet  I bought  the  property  in  the  reasonable  expectation 
that  the  shops  should  stay  there. 

Commissioner  Bussell.  Now,  General,  if  the  city  took 
your  property  before  your  neighbor  did  that,  would  you  say 
that  was  one  of  the  probabilities  to  which  the  jury  were  to 
look  in  assessing  the  damages  for  that  taking,  — that  they 
might  tear  down  the  shops  in  the  neighborhood,  and  lay  the 
land  out  for  pleasure-gardens  ? 

Mr.  Butler.  Oh,  no,  sir. 

Commissioner  Bussell.  That  is  what  I understand  to  be 
precisely  the  point  of  that  case. 

Mr.  Butler.  Oh,  no ; I should  not  say  that.  You 
would  be  carrying  that  analogy  too  far.  But  suppose  that 
my  neighbor  took  away  some  of  the  trade  which  was  brought 
there  because  of  my  neighbor’s  store,  and  to  which  I had  no 
claim,  and  in  which  I had  no  property  and  no  good-will ; I 
should  not  think  that,  when  my  neighbor’s  property  was  taken 
by  the  city,  I was  entitled  to  the  good-will  of  that  trade. 
That  is  all.  That  is  the  difference.  Do  I make  myself  un- 
derstood? My  meaning  is  this  : Here  is  a quantity  of  water 
to  which  ihey  have  no  title,  and  they,  as  riparian  proprietors, 
ask  for  what  they  are  damaged.  What  is  your  right?  To 
have  the  stream  flow  as  nature  made  it.  That  is  the  only 
right  they  have  under  heaven.  They  can  sue  nobody  except 


Argument  of  Gen.  B.  F.  Butler. 


1137 


for  an  alteration  of  that  right.  They  have  no  claim  upon 
anybody  except  for  an  alteration  of  that  right.  Now,  then, 
it  is  said  that,  haying  something  beyond  which  they  have  no 
right  to,  w^ich  they  cannot  object  to  if  it  is  taken  away  from 
them  by  anybody  whatever  who  has  the  right  in  his  posses- 
sion— that  if  somebody  else  takes  that  away  which  they  have 
no  right  to,  and  which  they  cannot  object  to  the  owners 
taking  away  from  them  — then  they  are  going  to  sue  that 
somebody  for  it.  That  is  the  proposition,  is  it  not,  sir?  Is 
not  that  the  very  proposition  ? Here  is  this  extra  water,  to 
which  they  have  no  right,  — i.  e.,  they  cannot  interfere  with 
anybody  on  earth  who  owns  it  doing  as  he  pleases  with  it, 
except  so  far  as  he  does  not  flood  them  with  it  against  the 
course  of  nature.  Now,  then,  having  no  right  to  it,  not 
being  able,  as  against  the  owner,  to  sue  him  for  taking 
away  that  which  they  have  no  right  to,  the  proposition,  as  a 
legal  proposition,  is  that  they  must  sue  a third  person  for 
doing  that  which  they  cannot  sue  the  owners  for  doing,  or 
one  not  claiming  under  the  owners.  I cannot  see  how 
that  can  be  stated  logically.  It  is  not  that  this  does  not 
make  an  estate  more  valuable.  That  is  not  the  point  I put. 
But  it  is  not  a value  that  you  have  any  right  to.  it  is  like 
an  underground  stream  of  water  into  your  land.  It  makes 
it  more  valuable,  and  if  your  neighbor  cuts  it  off  you  cannot 
sue  him  for  doing  it. 

And  now,  in  the  case  of  Parker  — 

Commissioner  Russell.  But  if  a stranger  cuts  it  off  you 
can  ? 

Mr.  Butler.  Pardon  me.  I was  going  right  on  to  the 
4th  of  Cushing,  — Parker  and  the  railroad.  I have  not 
lived  all  this  time  without  knowing  that.  I have  heard  a 
great  deal  of  talk  about  Parker  and  the  railroad.  They  did 
not  say  that  at  all.  What  they  did  say  was  this  : That 
where  I have  appropriated  in  my  well  an  underground  stream 
of  water,  whatever  my  neighbor  might  do,  that  a railroad 
shall  not  cut  down  and  drain  that  well,  — shall  pay  all  dam- 
ages. That  is  every  word  there  is  of  Parker  and  the  Boston 
and  Maine  Railroad  ; that  here  was  a man  that  had  awell  by  the 
side  of  the  railroad.  He  had  stored  up  the  water  in  that  well, 
and  the  railroad  cut  down  close  by  it  and  drew  the  water  oft* ; 
and  while  they  would  not  decide  what  might  be  the  rights 
against  the  proprietor  of  the  land,  — whether  lie  could  do  it,  — 
yet,  after  paying  all  damages  that  were  done  — All  damages 
to  what?  All  damages  by  laying  out  the  railroad  and  con- 
structing the  railroad, — that  that  draining  of  a man's  well 
was  a damage  that  they  ought  to  pay  for.  It  was  just  the 
same  as  though  they  had  tipped  over  his  water-pail  after  he 


1138 


Argument  of  Gen.  B.  F.  Butler. 


had  taken  his  water  up  upon  the  surface.  I would  say  that 
precisely  in  the  same  way  — that  he  would  have  a right  of 
action.  But  that  is  not  this  case  at  all.  Nor  is  it  the  case 
where  you  cut  off  an  underground  stream  that  nobody  knows 
of,  and  that  never  has  been  appropriated.  That  never  has 
been  decided  in  this  Commonwealth  yet.  But  here  was  a 
case  where  they  drained  and  appropriated  an  underground 
stream  and  appropriated  a well,  and  that  makes  exactly  the 
difference. 

But  we  need  not  follow  the  course  of  analogy.  The  ques- 
tion is  simply  this  : I am  a riparian  proprietor  on  a stream. 
I can  only  claim  the  right  to  have  the  water  flow  in  a state 
of  nature.  I can  claim  no  prescriptive  right  to  have  my 
neighbor  flow  it  above  me  so  as  to  supply  it  more.  I can 
claim  no  prescriptive  right  to  have  my  neighbor  refrain  from 
pumping  it  below  me  so  that  it  will  flow  off  more  than  it  did 
in  a state  of  nature,  and  drain  so  that  it  will  flow  off  more 
than  it  did  in  a state  of  nature.  Very  well,  then,  my  right 
is  to  have  it  in  a state  of  nature.  Somebody  thereupon  in- 
terferes with  my  right.  Precisely,  my  right  to  have  what? 
Why,  my  right  — nothing  more.  Well,  but  I say,  "I  want 
something  more  than  my  right.  I want  you  to  pay  me  for 
the  advantage  that  my  neighbor  up  there  has  been  to  me  in 
making  so  much  water  by  flowing.”  Would  it  not  seem  to 
be  natural  justice  that  you  should  pay  him,  not  me?  He 
spent  his  money.  He  built  the  dam.  Why  don’t  you  pay 
him?  Not  me.  It  came  from  him.  It  belongs  to  him,  if  it 
belongs  to  anybody.  It  belongs  to  him,  not  to  me.  You 
say  you  pay  me,  because  my  property  is  made  more  valuable 
by  what  he  has  done ; but  I have  no  right  to  have  him  oc- 
cupy there.  Very  well,  then,  why  should  you  pay  me? 
Why  not  pay  him  ? I cannot  conceive  of  a title  under  the 
circumstances  that  I put.  I think  Coke  on  Littleton  does 
not  show  any,  so  far  as  I remember.  I don’t  believe  Green- 
leaf  s Cruise  has  a chapter  devoted  to  that  sort  of  title ; and 
I suppose  a man  ought  to  have  some  title  before  he  com- 
plains of  any  damage.  It  is  an  old-fashioned  notion  I have 
got,  and  it  may  not  be  according  to  the  new  doctrines  of  the 
present  age.  It  is  the  first  time  in  my  life  that  I have  ever 
heard,  or  supposed  it  would  be  claimed,  that  a man  could  be 
paid  for  what  he  did  not  own  and  could  not  get,  except  by 
sufferance.  It  is  not  as  is  said.  I think  the  mind  is  led 
away  by  the  analogy.  It  is  not  that  you  take  any  benefit 
from  him  that  belongs  to  his  estate.  The  point  in  the  trouble 
is  — the  point  of  departure  is — that  the  benefit  does  not  belong 
to  the  estate.  It  no  more  belongs  to  the  estate  than  the  dog 
running  over  it  belongs  to  the  estate,  or  the  horse  trotting 


Argument  of  Gen.  B.  F.  Butler. 


1139 


over  it  belongs  to  the  estate.  It  is  of  that  class  of  injuries, 
and  that  class  of  benefits,  which  fall  by  the  natural  change 
of  events,  — like  the  inn  that  is  destroyed  by  the  new  turn- 
pike, like  the  new  turnpike  that  is  destroyed  by  the  new 
railroad,  or  like  the  new  railroad  that  is  destroyed  by  the 
canal.  They  cannot  complain,  either  of  them.  The  old 
tavern  became  worthless,  because  the  new  turnpike  carried 
trade  by  it.  The  new  turnpike  became  worthless,  because 
the  railroad  took  away  all  the  travel.  Yet  the  value  of  those 
estates  was  much  greater  before  the  change.  But  the 
trouble  is,  that  the  change  took  place  by  reason  of  matters 
over  which  they  could  have  no  control,  — by  change  in  prop- 
erty in  which  they  had  no  right. 

However,  the  question  is  with  you.  I beg  pardon  for 
arguing  so  much  at  length ; but  I am  very  anxious,  if  I can 
effect  it,  that  these  cases  never  should  be  tried  again  ; and  I 
hope  that  there  may  not  be  such  an  award  that  the  city  will 
feel  it  their  duty  further  to  press  it,  or  I shall  feel  it  my  duty 
further  to  advise  the  parties. 

\_Adjourned  to  Saturday , November  4th , at  10\  o'clock , 

A.  M.] 


1140 


Statement. 


Saturdav,  November  4. 

The  commissioners  met  at  10|  o’clock. 

Mr.  Child.  Having  now  the  deeds  spoken  of  yesterday, 
I desire  to  call  the  attention  of  the  commissioners  to  the 
Sturtevant  matter. 

Mr.  Shattuck.  I think  your  mistake  comes  from  the  fact 
that  you  did  not  use  that  deed. 

Mr.  Child.  No. 

Mr.  Shattuck.  Go  on,  then. 

Mr.  Child.  By  the  deed  of  April  2d,  1844,  the  Whit- 
ney mills  conveyed  to  J.  D.  Sturtevant,  all  the  lot  of  land 
conveyed  by  Warren,  Barry  and  Parke  to  Clements,  by  deed 
dated  October  1,  1832;  also,  another  lot  of  land  south  of 
and  adjacent  to  the  foregoing,  with  an  easement  to  a canal 
across  said  corporation  land,  with  exclusive  right  of  using 
the  same  to  carry  the  wheel. 

Now,  J.  D.  Sturtevant  conveys  to  Ephraim  and  George 
Crosby  the  same  description  as  in  this  deed  I have  just 
read,  with  all  the  privileges  as  in  the  deed  to  Clements. 

Commissioner  Bussell.  Does  it  include  that  easement? 

Mr.  Child.  It  does  not  say.  The  easement,  as  I under- 
stand it,  is  as  in  the  deed  to  Clements.  "Hab.  in  fee,  with 
all  privileges  as  in  deed  to  Clements,”  is  what  it  says  in  this 
deed  to  Crosby. 

Now,  your  Honors  will  remember  that  yesterday  I said 
that  Alpheus  Smith’s  interest  came  back  to  the  Belvidere 
mills,  subject  to  saw-mill,  to  Abner  Ball,  and  to  Sturtevant. 
The  exact  state  of  facts  in  regard  to  Sturtevant  is  this  : 
Warren,  Barry  and  Parke  conveyed  to  Hale  Clements  three- 
twenty- fifths.  Hale  Clements’  shares,  through  various  con- 
veyances, got  into  the  Belvidere  Woollen  Company.  One 
of  the  conveyances  by  which  Hale  Clements’  share  got  to  the 
Belvidere  Woollen  Company  was  this  one  to  Sturtevant. 
Now,  Sturtevant  had  conveyed  to  him,  by  the  Whitney  mills, 
Hale  Clements’  three  twenty-fifths ; and  also,  as  I have 
read  before,  a lot  of  land,  " with  easement  to  a canal  across 
said  corporation’s  land,  with  exclusive  right  of  using  the 
same  to  carry  the  wheel.”  That  was  in  addition,  over  and 
above  Hale  Clements’  three  twenty-fifths. 

Commissioner  Bussell.  A lot  of  land,  also? 

Mr.  Child.  A lot  of  land  with  it.  Now,  Sturtevant 
conveys  to  Crosby  the  same  description  as  in  the  deed  of 
April  2d,  1844,  " with  all  the  privileges  as  in  the  deed  to 


Statement. 


1141 


Clements.”  Therefore,  I claim  that  Sturtevant  did  not  con- 
vey to  Crosby  the  " easement  to  the  canal  across  the  corpo- 
ration’s land  with  exclusive  right  to  use  the  same  to  carry 
the  wheel.”  Then  Crosby  conveys  to  Richmond,  Richmond 
conveys  to  Church,  Church  conveys  to  Ripley  & Hammond, 
Ripley  & Hammond  convey  to  Ripley,  and  Ripley  conveys 
to  the  Belvidere  Woollen  Company.  So  that  there  still  re- 
mains outstanding  this  " easement  to  the  canal  across  the 
corporation’s  land,  with  exclusive  right  of  using  the  same  to 
carry  the  wheel,”  in  J.  D.  Sturtevant. 

Commissioner  Russell.  What  has  J.  D.  Sturtevant  got 
to  use  the  wheel  in? 

Mr.  Child.  They  have  not  given  us  the  deed.  All 
they  have  given  us  is  just  this  statement. 

Commissioner  Russell.  Does  the  deed  convey  the  lot  of 
land  which  Sturtevant  had? 

Mr.  Child.  I don’t  know  whether  that  is  conveyed  or 
not.  It  may  or  may  not  have  been.  As  far  as  proved,  they 
have  put  in  the  same  description  as  in  the  deed,  lib.  452, 
fol.  18.  Then  there  is  this  addition  : "Hab.  in  fee,  with  all 
privileges  as  in  deed  to  Clements.” 

Commissioner  Russell.  I think  it  would  be  well  to  let  us 
have  the  deed.  We  do  not  know  whether  that  is  the  lan- 
guage of  the  deed  itself,  or  merely  a note  by  the  compiler. 


1142  Argument  of  George  O.  Shattuck,  Esq. 


CLOSING  ARGUMENT  OF  GEORGE  O.  SHAT- 
TUCK, ESQ. 

It  has  been  said  here  by  the  counsel  for  the  city  that  our 
claims  are  exorbitant,  and  the  commissioners  have  been  cau- 
tioned against  finding  in  our  favor  any  large  amounts,  on  the 
ground  that  the  counsel  for  the  city  will  not  feel  justified  in 
approving  the  payment  without  further  litigation.  That  is 
not,  of  course,  a proper  argument  to  address  to  this  tribunal ; 
but,  having  been  made,  it  is  proper  for  me  to  allude  to  it. 
The  charge  that  our  claims  are  exorbitant  rests  wholly  upon 
the  statements  of  counsel.  It  is  well  known  that  before  the 
City  of  Boston  took  this  water  there  was  a careful  investiga- 
tion made  by  competent  persons  in  behalf  of  the  city,  and 
estimates  were  made  of  the  cost  of  constructing  the  works, 
and  of  the  amount  of  money  that  would  probably  be  required 
to  pay  for  the  water  taken  ; and  the  counsel  in  the  case  have 
undoubtedly  had  the  benefit  of  those  investigations.  I think 
I am  not  going  too  far  when  I assume  that  the  eminent  engi- 
neer for  the  City  of  Boston  has  investigated  this  matter  and 
reported  upon  it ; and  if  our  claims  had  equalled  his  judg- 
ment, or  certainly  if  they  had  exceeded  his  judgment,  it  is 
fair  to  assume  that  he  would  have  been  placed  upon  the  stand 
to  show  it,  and  that  it  would  not  have  been  left  to  the  coun- 
sel alone,  without  any  backing  of  testimony,  to  contend  that 
we  have  made  exorbitant  claims.  So  much  for  the  prelimi- 
nary statements  by  the  counsel. 

I now  come  to  one  or  two  questions  of  law  which  I did  not 
consider  in  my  previous  argument.  I should  not  take  the 
trouble  to  consider  them  now  if  they  had  not  been  so 
earnestly  pressed  by  the  counsel  for  the  city.  One  of  the 
legal  questions  raised  is  whether  the  Commonwealth,  through 
the  Middlesex  Canal  Company,  does  not  own  this  water, 
and  whether  we  have  any  claim  upon  it.  It  is  a sufficient 
answer  to  that  to  say,  that  more  than  twenty  years  ago  the 
Middlesex  Canal  Company  abandoned  its  right  to  use  this 
water ; that  the  old  canal  has  been  converted  to  other  uses ; 
and  that  persons  have  acquired  adverse  rights ; that  we 
have  acquired  adverse  rights,  and  that  a party  to-day  suc- 
ceeding to  all  the  rights  of  the  Middlesex  Canal  Com- 
pany  could  interfere  in  no  way  with  our  privileges.  The 
theory  that  this  property  of  the  Middlesex  Canal  Com- 
pany was  seized  by  the  Commonwealth  has  no  foundation  in 
legal  principle.  It  is  based  wholly  on  confusion  as  to  the 


Argument  of  George  O.  Shattuck,  Esq.  1143 

meaning  of  the  word  "franchise.”  The  word  " franchise ” 
has  a double  signification ; that  is,  it  means  sometimes 
simply  the  charter, — the  right  to  be  a corporation,  — the 
right  to  do  certain  things.  It  is  also  sometimes  applied  to 
the  easement  of  a corporation,  which  may  be  considered  its 
property.  Now,  when  this  corporation  was  dissolved,  its 
right  to  be  a corporation  — its  franchise , in  that  sense  — 
went  back  to  the  Commonwealth,  the  author  of  its  being ; 
but  its  properly  did  not.  There  is  nothing  in  the  decree  of 
the  court  dissolving  the  Canal  Company,  nor  in  the  action  of 
the  legislature  confirming  the  decree  of  the  court,  which 
tends  to  show  that  anything  more  than  the  mere  naked  fran- 
chise — the  charter  which  the  legislature  gave  to  the  corpor- 
ation — went  back  to  the  Commonwealth.  That  did  not 
strictly  go  back  to  the  Commonwealth,  but  was  simply  de- 
stroyed. 

There  is  another  proposition  of  law  which  the  city  has  con- 
tended for  in  this  case,  and  which,  against  our  protest,  has 
been  recognized,  which  settles  this  question.  We  said, 
" The  City  of  Boston  takes  the  right  to  all  the  water  in  Sud- 
bury river,  and  they  must  pay  for  the  whole  of  it.”  The 
city  answered,  " No ; although  we  take  all  the  rights,  you 
shall  be  paid  only  for  the  actual  damage  done  to  you,”  and 
such  has  been  the  decision.  Now,  if  you  assume,  for  the 
purposes  of  this  argument,  that  the  Commonwealth  has  a 
right  to  the  Middlesex  Canal  franchise,  how  much  harm 
would  it  do  us?  Would  they  ever  use  it,  practically? 
Would  they  ever  divert  a drop  of  water?  You  may  credit 
the  city  with  all  that  you  believe,  as  practical  men,  would  be 
the  damage  to  our  water-rights  by  any  assertion  of  the  claims 
of  the  Middlesex  Canal  Company  by  the  Commonwealth  of 
Massachusetts,  if  you  choose,  and  then  we  are  safe. 

There  is  one  other  point  taken  by  the  city,  and  that  is, 
that  we  have  a right  only  to  what  is  called  "the  natural  flow.” 
What  "the  natural  flow”  was  is  something  that  it  is  not 
worth  while  to  discuss,  because  we  are  entitled,  when  we 
claim  compensation,  to  the  market  value  of  the  flow  as  it  is. 
If  the  Commonwealth  should  destroy  one  of  those  reser- 
voirs, or  tear  down  one  of  those  dams  in  the  upper  part  of 
this  river,  which  we  have  not  any  right  to  maintain,  we 
might  claim  damages,  if  it  interfered  with  our  use  of  the 
water,  or  made  it  less  valuable  than  it  Was.  This  is  the  law 
according  to  the  decision,  as  I understand  it,  in  the  case  re- 
ferred to,  Marsden  vs.  Cambridge,  114  Mass.  In  that  case 
there  were  two  houses  built  together,  each  supporting  the 
other,  but  neither  owner  had  any  right  to  have  the  support 
of  the  house  of  the  other,  and  either  might  have  taken  his 


1144  Argument  of  George  O.  Shattuck,  Esq. 

house  down,  and  left  the  other  unsupported.  One  of  the 
houses  was  taken  away,  and  the  owner  of  the  other  claimed 
compensation.  The  opposing  party  said,  "You  have  no 
right  to  compensation.  You  had  no  right  to  have  that  house 
stand  there.”  But  the  Court  said,  "That  is  not  just.  It  was 
for  the  mutual  advantage  of  those  two  parties,  and  the  re- 
moval of  the  house  was  an  injury,  and,  therefore,  you  must 
pay.”  Now,  we  say  we  have  a right  to  this  water ; and  our 
case  is  such  as  that  would  have  been  if  the  man’s  own  house 
had  been  taken,  and  they  had  said  to  him,  you  cannot  have 
any  substantial  damages,  because  it  was  liable  to  tumble 
down  when  the  other  man  took  his  house  away.  That  is  the 
precise  distinction. 

Now,  this  is  fundamental.  The  value  of  property  every 
day  depends  on  considerations  over  which  the  owner  has  no 
legal  control.  Every  man  knows  that  the  United  States 
might  to-morrow  cut  off  the  wharf  accommodations  of  every 
wharf  in  Boston,  and  they  could  not  recover  any  compensa- 
tion for  it ; and  yet  everybody  values  the  wharves  with 
reference  to  the  use  of  the  water.  So  my  house  is  on  a 
highway.  That  highway  is  a public  easement.  In  the  ab- 
sence of  statute  the  sovereign  power,  the  Commonwealth, 
could  discontinue  that  highway,  and  I should  not  have  any 
compensation  ; but  is  my  house,  therefore,  to  be  valued  on 
the  theory  that  I have  no  right  to  a highway  there  ? Cer- 
tainly not.  It  is  not  an  argument  which  I shall  take  any 
further  time  to  discuss. 

I now  come  to  questions  which,  in  part,  were  considered 
in  my  former  argument ; and,  therefore,  I shall  not  detain 
you  by  considering  them  at  any  length.  The  first  question 
is,  how  much  does  the  Sudbury  river  contribute  to  the  Con- 
cord river?  We  say  22  per  cent.  They  say  one-tenth. 
What  do  they  base  it  on?  They  refer  to  Mr.  Fteley’s 
measurements  for  a few  dry  months.  Mr.  Fteley  tells  you 
distinctly  that  the  value  of  those  measurements  is  not  suffi- 
cient in  any  way  to  modify  the  general  rule  that  the  water- 
shed is  to  determine  the  proportion.  Mr.  Shedd,  who  has 
examined  the  river,  and  knows  all  about  it,  makes  the  same 
statement,  and  there  is  not  any  testimony  to  the  contrary. 
But  Mr.  Herschel  says  he  has  a theory  about  Lirge  rivers, 
which  you  have  heard.  Now,  I do  not  intend  to  waste  any 
time  in  the  consideration  of  that  question.  I still  fall  back 
on  the  testimony  of  Mr.  Mills,  who  says  that  the  water- 
sheds should  govern,  making  allowance  for  the  evaporation 
which  increases  the  percentage.  Mr.  Shedd  says  so;  Mr. 
Fteley  says  so,  and  nobody  says  the  contrary. 

I next  come  to  the  question  of  the  amount  of  water  at  the 


Argument  of  George  O.  Shattuck,  Esq.  1145 

Wamesit  dam,  and  upon  that  question  I shall  say  very  little. 
We  have  there  unquestionably  the  best  evidence  that  has 
been  produced.  We  have  the  measurements  of  Mr.  Tilton 
for  over  two  years,  showing  the  depth  of  water  on  the 
Wamesit  dam.  We  have  the  actual  measurements  by  Mr. 
Herschel  and  Mr.  Frizell,  showing  how  much  water  ran  in 
that  river  at  particular  heights  of  the  water  on  the  dam, 
which  enable  us,  as  Mr.  Mills  did  at  Lawrence,  to  spread 
those  measurements  which  were  taken  during  two  months 
over  the  whole  two  years  during  which  Mr.  Tilton  meas- 
ured. The  arguments  against  us  come  first  from  the  water 
which  they  say  is  shown  at  Saxon ville,  the  water  shown  by 
Judge  Abbott  in  the  Talbot  cases,  and  the  amount  that  is 
used,  as  they  say,  at  the  Wamesit  dam  ; and  I propose 
briefly  to  consider  those. 

First,  take  Mr.  Talbot’s  case.  I have  read  over  all  the 
evidence,  I believe,  in  that  case,  and  I have  read  over 
Judge  Abbott’s  argument.  It  is  a fair  argument,  based  on 
the  statistics  which  he  had  at  his  command.  The  city  were 
not  kind  enough  to  furnish  him  with  this  instructive  testi- 
mony which  they  have  given  us,  and  the  argument,  it  seems 
to  me,  is  as  sound,  as  fair,  and  as  reasonable  as  could  be 
made  upon  the  premises ; but  our  evidence  tends  to  show 
simply  this,  that  the  Sudbury  meadows  have  a greater  effect 
than  I think  any  of  us  who  were  acting  as  counsel  antici- 
pated in  distributing  the  flow  of  water  over  the  different 
months  and  days  in  the  year.  Judge  Abbott  assumed  six 
months  as  the  time  when  he  would  be  injured,  and  the  other 
six  he  supposed  there  was  an  excess  of  water ; but  the  evi- 
dence in  our  cases  shows  that  there  is  no  month,  no  week, 
no  day,  in  fact,  in  the  whole  year  when,  at  the  Wamesit 
dam,  we  may  not  be  short  of  water ; and  it  seems  to  me,  as 
Judge  Abbott  said  yesterday,  that  the  time  in  the  case  of 
Mr.  Talbot,  during  which  he  will  suffer  loss,  ought  fairly, 
upon  the  evidence  which  has  since  been  introduced,  to  be 
extended  for  a period  of  more  than  six  months. 

Now,  as  to  the  water  used  at  the  Talbot  dam,  some  of  the 
considerations  which  were  presented  by  Gen.  Butler  are 
wholly  without  any  basis  of  fact.  There  is  no  evidence 
tending  to  show  what  is  used  at  the  Talbot  dam,  except 
this.  Mr.  Talbot  uses  his  woollen  mill  with  fourteen  sets  of 
machinery.  He  put  the  amount  used  by  each  set  of 
machinery  at  10  horse  power, — probably  a pretty  large 
estimate.  Our  measurements  show  less,  even  where  we 
have  swift  running  machinery  like  his.  That  would  take 
about  140  cubic  feet  per  second  on  his  fall  of  11  feet; 
probably  120  feet  on  the  wheel  is  more  accurate.  There  is 


1146  Argument  of  George  O.  Shattuck,  Esq. 

no  evidence  to  show  how  much  he  runs  his  dye-wood  mills ; 
but  I suppose  he  does  not  run  them  when  there  is  any  want 
of  water,  and  he  apparently  stops  them  rather  than  interfere 
with  Faulkner’s  mill,  because  it  is  plain,  upon  the  evidence, 
that  Faulkner’s  mills  ran  more  than  the  dye-wood  mills  did. 
What  Gen.  Butler  relied  upon  was  the  statement  that  there 
were  to  be  405  cubic  feet  per  second  running  before  the 
Talbot  mills  could  be  stopped,  if  the  water  was  below  the 
bolt ; but  there  is  not  a syllable  of  evidence  from  anybody 
that  Mr.  Talbot  ever  got  405  cubic  feet  per  second  before 
the  water  came  up  to  the  bolt,  and  there  is  nothing  that 
tends  to  show  it.  This  I will  repeat,  because  it  seems  to 
me  to  be  important.  When  the  water  is  below  the  bolt, 
Mr.  Faulkner  has  no  right  to  stop  Mr.  Talbot,  unless  he  is 
drawing  more  than  405  cubic  feet  per  second,  and  he  never 
stopped  him ; and  Mr.  Talbot  never  drew  405  cubic  feet  per 
second.  Mr.  Talbot  is  very  careful.  I will  take  the  trouble 
to  refer  to  his  testimony.  Mr.  Talbot,  I say,  spoke  very 
cautiously  in  his  testimony  here,  as  you  will  observe,  on 
page  391 : — 

“ Q.  How  large  a part  of  the  time,  if  there  is  any  time,  when 
you  have  absolutely  stopped  the  whole  day  the  dye-wood  machinery  ? 
I am  speaking  of  the  working  day. 

“ A . We  have  to  stop  occasionally,  but  the  water  must  be  very 
low  for  that  (that  is,  to  stop  all  the  time).  We  have  not  had  to 
stop  very  much. 

“ Q.  Unfrequently  when  you  have  stopped  ever}7  part? 

“ A.  Frequently  we  do. 

“ Q.  Frequently  you  do? 

“ A.  Yes,  sir.”  ~ 

That  is,  frequently  he  stopped  part.  You  know  Mr. 
Faulkner  only  stopped  his  machinery  some  thirty  or  forty 
days. 

“ Q.  How  large  a part?  I mean  now  the  working  day. 

“ A.  Sometimes  we  run  part  of  the  day,  and  sometimes  we 
have  to  stop  all  day,  but  we  can  generally  run  some  portion  of  a 
day. 

“ Q.  That  is  what  I want  to  get  at.  So  that  the  stopping  your 
dye-wood  machinery  all  day  is  quite  unfrequent  to  you? 

“ A.  Yes,  sir.” 

I 

Then,  on  403d  page  : — 

“ Q.  But  you  can  only  take  an  aliquot  portion  of  the  water? 

“ A.  We  can  only  take  a certain  amount. 

“ Q.  How  large  is  that  amount? 


Argument  of  George  O.  Shattuck,  Esq.  1147 

“ A.  It  has  been  estimated  at  about  400  cubic  feet  of  water  per 
second. 

“ Q.  And  when  did  you  begin  to  be  restricted  to  that  amount? 
/ “ A.  Well,  in  the  past  we  have  never  made  any  fixed  rule 

about  it.” 

So  here  is  a right  to  limit  Mr.  Talbot,  when  the  water  is 
below  the  bolt,  which  practically  amounts  to  no  limit  at  all, 
because  there  is  never  so  much  water  running  when  it  is  be- 
low the  bolt,  and  therefore  it  throws  no  light  upon  this 
question.  So  much  for  Gen.  Butler’s  argument  in  that 
behalf.  The  only  thing  that  is  shown  is,  that  Mr.  Talbot 
runs  his  woollen  mills,  and  Mr.  Faulkner  draws  away  about 
fifty  feet  per  second,  the  larger  part  of  the  year.  That  tes- 
timony remains  uncontrolled.  Then  at  times  they  stopped 
the  machinery,  and  they  run  these  dye-wood  mills  to  a 
greater  or  less  extent. 

Then  we  come  to  the  Saxonville  mills.  Now,  as  to  that, 
I see  nothing  conflicting  in  that  testimony. 

Mr.  Child.  I suppose  you  want  to  get  the  testimony 
correct. 

Mr.  Shattuck.  Certainly  I do. 

Mr.  Child.  Mr.  Holmes  testifies  on  the  deposition  that 
was  introduced  as  showing  the  amount  of  power  that  Mr. 
Talbot  has,  that  he  has  measured  the  gates,  and  that  it 
amounts,  putting  the  grist-mill  and  saw-mill  together,  to 
405.52  cubic  feet  per  second. 

Mr.  Shattuck.  That  is  what  I have  just  said.  Accord- 
ing to  the  deed,  if  you  will  refer  to  it,  Mr.  Talbot  cannot  be 
limited  in  the  amount  he  is  to  draw  when  it  is  below  the 
bolt,  unless  it  comes  up  to  that  amount ; and  nobody  testifies 
that  that  amount  ever  ran  in  the  river  when  it  was  below  that 
bolt.  Therefore  it  is  of'  no  consequence. 

Mr.  Child.  But  the  gates  are  higher. 

Mr.  Shattuck.  That  is  true.  The  Talbot  deed  refers 
distinctly  to  those  gates,  which  were  measured  in  1833,  and 
says,  " You  cannot  stop  Mr.  Talbot  drawing  when  the  water 
is  below  the  bolt,  unless  he  draws  more  than  that  amount 
and  they  never  stopped  him. 

Mr.  Child.  The  water  when  it  is  down  to  the  bolt  is 
higher  than  the  top  of  the  gates. 

Mr.  Shattuck.  Not  the  gates  as  they  are  now  ; the  gates 
as  they  were  then,  in  1833. 

Mr.  Child.  The  gates  are  bigger  than  they  were,  as  I 
understand  it. 

Mr.  Shattuck.  The  commissioners  have  heard  the  testi- 
mony ; I do  not  care  to  press  it  any  further.  All  I mean  to 


1148  Argument  of  George  O.  Shattuck,  Esq. 


say  is,  that  if  anybody  can  ascertain  from  anything  in  Mr. 
Talbot’s  case,  that  any  more  water  is  drawn  there  than  our 
testimony  shows  is  on  the  Wamesit  dam,  I have  been  unable 
to  find  it. 

As  to  the  Saxonville  dam,  I have  no  doubt  from  the  evi- 
dence that  there  is  a vast  amount  of  evaporation  in  the  dry 
season,  much  more  than  the  highest  estimate  made  by  Mr. 
Frizell.  Mr.  Shedd  tell  us  that  the  water-table  of  the  Con- 
cord river,  which  rises  and  falls  with  the  level  of  the  river, 
extends  not  only  over  those  meadows,  but  miles  back  beyond 
the  meadows.  And  the  amount  of  evaporation  estimated  on 
the  surface  of  the  meadows,  as  Mr.  Frizell  did,  was  undoubt- 
edly a very  low  estimate ; probably  it  would  not  be  more 
than  half.  Now,  I say  that  the  influences  affecting  the 
wastage  and  the  evaporation,  from  the  time  the  water  leaves 
the  Saxonville  dam  to  the  time  it  leaves  the  Wamesit  dam, 
are  so  great,  that  the  amount  of  water  at  one  place  does  not 
aid  us  very  materially  in  determining  the  amount  of  water  at 
any  particular  time  at  the  other  place.  It  is  a little  important 
to  remember  on  the  whole  question  of  distribution,  that  in  this 
country  the  evaporation  from  a water  surface,  or  from  a wet 
meadow  surface,  in  a year,  is  greater  than  the  rainfall.  I have 
somewhere  seen  it  so.  stated ; in  England  it  is  said  to  be  less 
than  the  rainfall.  Now,  I have  observed,  in  looking  over  some 
of  the  measurements  of  Mr.  Tilton,  that  there  was  no  water  run- 
ning over  the  Wamesit  dam  during  the  months  when  the  rainfall 
was  the  largest.  Although  nature  has' never  worked  in  that 
way,  I have  no  doubt  that  it  would  be  practicable  to  have  all 
the  rainfall  of  the  season  so  distributed  as  not  to  contribute 
a gallon  of  water  to  those  rivers.  It  appears  that  an  inch  and 
a half  rainfall  did  not  affect  the  Concord  river  at  all ; it  was 
not  perceptible  at  all ; and  you  know  that  there  may  be  a 
pretty  large  rainfall  that  will  not  show  any  effect  on  the  sur- 
face. It  may  affect  the  springs.  How  that  is,  it  is  not  nec- 
essary to  consider ; but  it  is  wholly  a question  of  distri- 
bution, and  the  difference  in  the  influences  on  the  distribution 
between  Saxonville  and  the  Wamesit  dam  is  so  great,  that  I 
consider  any  testimony  affecting  one  of  very  little  value  as 
affecting  the  other. 

Mr.  Child.  I hope  you  will  excuse  me  again. 

Mr.  Shattuck.  Certainly.  I am  very  glad  to  have  any- 
thing that  is  instructive. 

Mr.  Child.  Mr.  Holmes  says,  on  page  409  : — 

u Q.  You  have  given  now  the  gates  that  you  have  estimated 
upon,  and  the  head  under  which  you  have  estimated  it  by  the 
deposition  ? 


Argument  of  George  O.  Shattuck,  Esq.  1149 


“ A.  Yes,  sir. 

u Q.  Now,  did  you  get  from  Mr.  Talbot  the  discharges  from  his 
wheel,  by  its  present  use,  as  he  gave  them  to  you? 

“ A.  Yes,  sir. 

“ Q.  Taking  it  as  he  gave  it  to  you,  will  you  give  us  the  amount 
of  the  number  of  feet  per  second  which  they  discharged  — the  six 
wheels,  the  whole?  Thus,  there  are  six  wheels  that  he  has  in  all 
that  you  estimated  upon. 

“ A.  Eight  wheels. 

“ Q.  Give  us  the  six  of  the  dye-wood  wheels? 

“ A.  I have  them  all  together,  and  not  separated.  The  num- 
ber of  cubic  feet  per  second  discharged  by  all  the  wheels  is  420.5 
for  eight  wheels.” 


Mr.  Shattuck.  There  is  no  evidence  that  all  those  mills 
ever  ran  together  when  the  water  was  below  that  bolt 
three-quarters  of  an  inch ; none  whatever.  I have  looked 
that  over  carefully  to  see. 

I need  hardly  refer  to  the  evidence  on  the  question  of  the 
use  of  power  at  the  Wamesit  dam.  The  mills  that  haver 
bought  water-rights  use  220  cubic  feet.  The  mills  that  are 
guaranteed  use  about  103  cubic  feet,  — I mean  have  a right 
to  use  103  cubic  feet,  — and  there  are  some  mills  not  guar- 
anteed. Add  the  103  to  the  220  and  you  have  323  cubic 
feet.  The  Bleachery  does  not  use  more  than  six  or  eight  cubic 
feet  at  the  outside.  Deduct  that  from  thirty-six,  and  it  leaves 
twenty-nine,  more  or  less.  The  Belvidere  mill  has  not  been 
running  for  a year  and  a half.  Almost  always  some  of 
those  mills  are  not  running.  Wood's  mill  does  not  get  its 
fair  share,  everybody  concedes.  Now,  deduct  this  from  the 
whole  amount,  and  you  will  find  that  there  are  only  about 
260  cubic  feet  per  second  in  actual  use,  that  is,  the  actual 
guaranteed  use  of  the  Wamesit  dam  ; so  that  there  is  nothing 
in  that  on  which  to  base  any  argument  as  to  the  quantity. 

Now,  as  to  our  evidence.  As  I say,  we  have  spread  the 
measurements  made  by  Mr.  Frizell  and  Mr.  Herschel  over 
two  years  by  using  the  measurements  of  Mr.  Tilton  ; and 
they  show  that  for  eight  months  and  twenty-four  days  in 
one  year,  and  eight  months  and  ten  days  in  another,  the 
flow  of  water  was  so  small  that  our  mills  were  materially 
affected  by  it,  and  that  during  about  six  months  in  each 
year  we  lost  the  whole  of  our  proportion  of  what  the  city 
takes.  That  is  the  best  evidence  which  has  been  offered 
here,  and  there  has  been  no  evidence  by  anybody  tending  to 
controvert  it ; and  if  the  commissioners  should  venture  to 
make  any  deduction  from  that,  on  any  theory  of  a larger 
flow  in  other  years,  they  run  the  risk  of  doing  us  a great 
injustice. 


1150  Argument  of  George  O.  Shattuck,  Esq. 


I have  nothing  more  to  say  with  reference  to  this  matter 
of  the  flow.  I shall  assume  that  about  twenty-two  per  cent, 
is  taken  of  the  water  on  the  Wamesit  dam,  and  I now  come 
to  the  question  of  damages. 

Some  of  the  argument  upon  this  point  was  interesting 
and  admirable,  it  seems  to  me,  as  an  example  of  ingenu- 
ity. Let  me  illustrate  it.  General  Butler  says  that  the 
Essex  Company,  from  whom  the  water  was  taken,  cannot 
show  that  the  value  of  their  whole  property  is  diminished, 
or  that  their  stock  sells  for  anything  less  in  the  market. 
Now,  suppose  the  City  of  Lawrence  had  taken  an  acre  of 
land  from  the  Essex  Company,  on  Essex  street,  and  the 
question  was  what  the  damages  were,  and  the  City  of  Law- 
rence should  contend  that  the  whole  property  of  the  Essex 
Company  would  sell  for  about  as  much  as  it  would  before  ; 
that  they  did  not  believe  their  stock  was  diminished  in  value, 
and  therefore  they  ought  not  to  pay  anything ; what  would 
any  court  or  jury  say  to  that?  I have  no  doubt  that  such 
•an  argument  as  that  might  be  made  with  as  much  force  as 
the  argument  for  the  city  in  this  case.  We  are  held  up  to 
ridicule  here  because  we  have  not  attempted  to  show  what 
the  market  value  of  the  property  of  the  Essex  Company  and 
of  their  stock  is,  and  whether  it  is  diminished  by  the  taking 
of  this  water. 

The  argument  is  precisely  such  as  it  would  have  been  if 
one  acre  of  land  had  been  taken,  and  that  argument  had 
been  pressed  upon  you.  The  question  always  is,  in  these 
cases,  what  is  the  market  value  of  the  thirty  taken ? And 
upon  that  we  have  all  of  us  put  in  evidence,  and  the  city^ 
has  not  offered  a syllable  of  evidence  of  any  kind  to  contra- 
dict ours.  Again,  he  says,  " You  are  not  using  your  water.” 
Well,  suppose,  again,  the  City  of  Lawrence  had  taken  an 
acre  of  land  from  the  Essex  Company  — vacant  land  — and 
they  had  said,  " Why,  here  you  have  owned  this  land 
twenty-five  years.  You  have  not  used  it  or  sold  it,  there- 
fore we  will  not  pay  you  anything  for  it.”  The  true  prin- 
ciple is,  that  we  are  entitled  to  the  full  market  value  of  the 
thing  taken,  in  any  case.  That  is  the  lowest  limit  to  which 
you  can  go,  and  I may  as  well  say  this  now,  once  for  all. 
Take  the  Massic  fall,  or  Mrs.  Richmond ; take  the  Essex 
Company,  or  any  of  these  cases  ; and  when  they  show  you 
the  market  value  of  what  is  taken,  and  the  city  come  in 
and  make  themselves,  by  force  of  law,  the  purchaser,  they 
must  pay  that  market  price,  whether  it  is  land  which  we 
have  allowed  to  remain  vacant  for  twenty-five  years,  or 
water  which  we  have  alloAved  to  run  in  its  natural  course  for 
twenty-five  years. 


Argument  of  George  O.  Shattuck,  Esq.  1151 


Although  the  market  value  is  the  lowest  limit,  it  is  not 
necessarily  the  exact  measure,  or  the  full  measure,  of  our 
claim.  If  we  have  placed  a building  upon  land,  and  that  is 
so  situated  that  practically  it  will  cost  more  than  the  market 
value  of  a certain  amount  of  water  to  do  us  justice,  and  put 
us  where  we  were  before,  and  the  amount  which  we  claim 
for  that  does  not  exceed  the  whole  value  of  the  property, 
then  we  have  a right  to  that  measure  of  damages.  We  have 
in  that  case  no  question  of  the  market  value  of  the  property. 
Suppose,  for  instance,  a man  takes  a wheel  from  my  wagon, 
and  I bring  a suit  against  him  for  conversion.  I am  not 
bound  to  show  that  the  market  value  of  my  wagon  with  all 
the  wheels  on  it  was  so  much,  and  the  market  value  of  my 
wagon  with  one  wheel  gone  is  so  much.  I cannot  show  it. 
What  I should  show  would  be  the  market  value  of  the  work 
and  material  to  be  furnished  to  supply  the  loss,  and  unless 
that  amount  exceeds  the  whole  value  of  the  wagon  after  the 
wheel  is  put  on  it,  I am  entitled  to  that  as  damages.  Of 
course,  there  might  be  a case  Avhere  a wagon  was  so  poor 
that  it  would  not  pay  to  put  a new  wheel  on  it,  and  in  that 
ca-e  you  would  not  allow  that  amount ; but  unless  that  does 
exceed  the  whole  value  of  the  wagon,  after  the  wheel  is  put 
on  it,  I have  a right  to  show  the  market  value  of  that  wheel, 
and  that  is  to  be  the  measure  of  damages. 

The  Sterling  mill  is  selected  for  ridicule  here  for  claiming 
exorbitant  damages.  Now,  I thought,  looking  over  the  cal- 
culations of  the  others,  that  the  Sterling  mill  was  one  of  the 
most  modest  of  all  these  claimants.  But  let  us  take  the 
Sterling  mill,  and  take  Gen.  Butler’s  own  statement,  and 
the  evidence  in  this  case.  The  value  of  land  in  any  city,  or 
in  any  locality  in  this  country,  began  with  zero,  or  the  belt 
of  wampum,  and  it  has  gone  up  to  $100  a foot  in  State 
street,  step  by  step,  just  as  the  demand  has  increased,  and 
the  supply  in  proportion  has  been  diminished.  When  they 
began  in  Lowell,  water-power  had,  I suppose  (I  have  no 
knowledge  historically),  simply  a nominal  value.  It  has 
been  going  up  all  the  time,  and  the  limit  of  its  value  will  be 
the  cost  of  steam-power.  There  is  no  other  practical  limit. 
Now,  see  how  this  is  illustrated.  In  1857,  this  land  where 
the  Sterling  mill  is,  with  the  water-rights,  but  without  the 
building,  was  sold  for  $15,000.  In  1864,  it  was  let  for  fifty 
years,  a building  to  be  placed  upon  it,  for  a rental  of  $1,400 
a year,  taxes,  and  all  assessments.  Now,  such  a lease  as 
that,  as  an  investment,  with  the  buildings  upon  it,  is  as  safe 
a security  as  can  be  found  in  Massachusetts,  and  as  valuable 
for  trustees,  when  you  take  into  account  the  period  during 
which  it  is  to  run.  To-day,  I have  no  doubt,  such  a security 


1152  Argument  of  George  O.  Shattuck,  Esq. 


as  that  would  sell  on  a basis  of  capitalizing  it  at  five  per 
cent.  It  is  just  as  good  as  a Massachusetts  bond  running 
for  thirty  years.  But  even  at  six  per  cent.,  that  property 
had  gone  up  to  $24,000,  and  at  five  per  cent.,  $27,000  or 
$28,000.  That  was  the  value  in  1864.  But  when  we  come 
down  to  1876,  we  "find  that  the  Wamesit  Company  is  leasing 
power  equivalent  to  this,  without  the  land,  at  $/5  per  horse- 
power, which  gives  us,  for  thirty-six  feet,  $5,400  annual  ren- 
tal ; and  when  you  include  the  land  which  we  own,  and  the 
value  of  wdiich  depends  on  the  use  of  the  water,  $100  per 
horse-power,  it  gives  an  income  of  $7,200  a year  for  this 
power,  without  the  buildings  and  machinery.  That  is  the 
market  value ; and,  as  I understand  it,  business  in  Lowell  is 
increasing,  the  population  is  increasing,  more  mills  are  going 
up,  the  old  mills  have  been  enlarged,  and  the  value  of  this 
power  is  growing  day  by  day.  But  taking  it  at  the  nick  of 
time  when  the  city  happened  to  hit  it,  and  it  leaves,  accord- 
ing to  their  evidence,  $5,400  a year,  without  the  land ; with 
the  land,  without  the  machinery,  $7,200  a year,  which  is  a 
sum  equal  to  the  value  of  more  than  $100,000.  That  is  the 
value  which  the  evidence  shows.  Now,  the  General  says 
here,  " Why  do  they  not  show  market  values?”  We  have 
shown  market  values.  If  there  was  any  other  value  to  be 
put  on  this  property,  wThy  did  not  the  city  bring  their  wit- 
nesses ? The  only  man  here  who  has  undertaken  to  testify 
as  to  values  in  this  case  is  Gen.  Butler  himself.  He  has 
brought  in  statements  about  the  sale  of  the  Middlesex  mills 
in  1857,  and  brought  in  statements  about  some  sets  of  ma- 
chinery, which  he  says  sold  for  little  or  nothing.  This  is 
wholly  incompetent.  This  case  is  to  be  decided  upon  the 
evidence,  and  upon  their  evidence  as  well  as  ours.  The 
price  put  on  this  property  is  in  no  way  exaggerated.  What 
a mill  abandoned,  a mill  stopped,  rusted,  the  capital  all 
gone,  the  help  all  discharged,  everything  in  that  condition, 
sells  for  under  the  hammer,  — a way  in  which  no  solvent 
man  ever  dreams  of  selling  property  of  this  kind, — what 
such  a mill  would  bring,  I do  not  care.  It  is  what  a live 
mill,  with  capital  and  intelligent  business  capacity,  and  in- 
dustry behind  it,  will  sell  for.  Why,  the  difference  is  the 
difference  between  what  a ship  dismasted,  dismantled,  lying 
in  the  dock,  needing  every  kind  of  repair,  and  all  its  furni- 
ture, would  sell  for,  and  what  a ship  furnished  every  way, 
just  starting  out  of  port,  with  a valuable  charter,  equipped, 
manned,  every  way  complete,  would  sell  for.  The  differ- 
ence between  the  two  can  hardly  be  measured.  There  is  no 
comparison.  So  here,  we  ask  you  the  fair  market  price  of  a 
mill  held  by  a living,  solvent  corporation,  and  what  we 


Argument  of  George  O.  Shattuck,  Esq.  1153 


could  sell  the  water  for,  if  we  became  insolvent,  in  this  par- 
ticular locality.  I have  not  heard,  some  of  the  commission- 
ers may  know  the  fact,  that  the  mills  in  Lowell,  where  they 
have  water-power,  have  been  sold  lately  at  any  very  great 
sacrifice.  Water-power  is  in  demand  there  all  the  time,  and 
has  a value.  I don’t  know  what  the  value  of  water  in  Bos- 
ton may  be  to-day,  but,  as  I understand  it,  the  rates  at  which 
the  City  of  Boston  has  been  selling  it,  one  foot  of  water 
over  this  Wamesit  dam,  for  manufacturing  purposes,  brings 
more  than  $50,000  a year. 

Mr.  Child.  There  is  no  testimony  about  that. 

Mr.  Shattuck.  No,  sir  ; that  is  matter  of  general  knowl- 
edge. Call  it  anything  you  please.  Everybody  knows, 
generally,  what  water-rates  are.  Of  course,  we  do  not 
claim  that  price.  We  do  not  ask  to  be  paid  anything  like 
that ; but  it  is  significant  in  determining  whether  the  city 
will  be  likely  to  take  all  the  water  when  they  get  a conduit 
leading  to  Boston  ; when  they  have  taken  the  whole  of  it  on 
paper,  and  when  they  have  not  offered  one  syllable  of  testi- 
mony to  show  that  they  do  not  expect  to  take  the  whole  of 
it,  and  take  it  at  once.  This  is  a little  diversion  from  the 
point  I am  considering,  but  I may  as  well  refer  to  it  now  as 
at  any  time. 

Once  more,  as  to  this  question  of  value.  We  are  en- 
titled to  the  market  value  of  the  water  taken,  in  any  case, 
whether  it  is  used  or  not.  The  damages  cannot  be  less  than 
the  market  value  of  the  power  taken  on  the  spot.  And  if, 
to  a prudent  and  reasonable  man,  the  economical  method  of 
preventing  loss  is  to  supplement  his  water-power  by  steam, 
the  measure  of  damages  is  the  cost  of  steam.  That  is  the 
exact  question  which  I propose  to  consider  now. 

Gen.  Butler  says,  "Oh,  take  out  part  of  the  machinery, 
and  go  on  with  a smaller  supply  of  power.”  And,  if  that  is 
the  best  remedy,  his  argument  is  sound.  But  you  must 
remember  that  we  have  a mill,  prepared  with  all  this  machin- 
ery, and  room  for  it ; we  have  a superintendent,  who  can  just 
as  well  run  a mill  with  one  set  of  machinery  more  as  with 
one  set  less.  We  have  all  the  appliances  for  manufacturing, 
which  you  understand  so  much  better  than  I do  that  I will 
not  dwell  upon  them.  And,  having  all  these,  what  will  a 
prudent  man  do,  looking  at  it  in  the  most  economical  way? 
Let  us  assume  that  we  have  the  city’s  money  in  our  pockets, 
and  have  nothing  to  consider,  except  the  best  way  to  prevent 
loss,  and  we  sit  down,  as  prudent  men,  to  consult  and  decide 
what  we  shall  do.  Shall  we  decide  to  throw  aside  part  of 
our  machinery?  As  prudent  men,  ought  we  so  to  decide, 
or  shall  we  put  in  steam?  Now,  there  can  be  only  one 


1154  Argument  of  George  O.  Shattuck,  Esq. 


answer  to  that  question,  upon  this  evidence.  Everybody 
puts  in  the  steam.  Everybody  says  that  is  the  proper  solu- 
tion of  this  problem,  and  the  city  have  not  denied  it.  All 
the  evidence  introduced  here  shows  that  we  shall,  as  prudent 
men,  supplement  this  water-power  with  steam ; that  that  is 
the  only  proper  solution  of  this  question,  and  nobody  denies 
it.  You  are  not  embarrassed  here  with  conflicting  testi- 
mony. But  I will  not  discuss  this.  You  know  just  as  well 
as  I do  that  that  is  the  way  that  the  difficulty  is  always 
remedied,  and  we  are  therefore  entitled  to  the  market  value 
of  the  steam-power  argued.  General  Butler  insists  upon 
that,  and  I insist  on  it  as  strenuously.  My  brother  Storey 
suggests  this  question,  not  only  what,  as  prudent  men,  they 
would  be  likely  to  do,  but  what  have  they  actually  done  in 
contemplation  of  such  contingencies ; and  with  reference, 
also,  to  this  particular  contingency,  what  have  they  done? 

Now,  we  come  back  to  the  doctrine  which  I contend  for, 
that  it  is  the  market  price  which  is  to  determine,  and  in 
which  I am  very  glad  to  have  the  support  of  the  city.  It  is 
the  market  price.  I do  not  know  that  I can  add  anything 
to  what  1 have  said  before.  In  cases  where  value  is  to  be 
shown  it  is  always  competent  to  show  the  cost  of  anything. 
But  in  the  long  run  it  has  been  found,  by  the  Courts  in  the 
administration  of  justice,  that  the  safest  rule  is  not  to  take 
what  one  man  thinks  he  can  make  a thing  for,  and  another 
man  thinks  he  can  get  it  for,  but  what  prudent  men,  dealing 
with  each  other,  have  agreed  upon  as  the  fair  price  to  sell 
and  buy  for.  Now,  we  did  not,  after  consultation,  think  it 
was  profitable  or  useful  to  take  each  mill,  and  go  into  details 
as  to  what  must  be  done  here,  and  what  must  be  done  there, 
showing  more  or  less,  but  to  take  the  market  price  of  the 
thing  furnished,  which  the  world  has  found  to  be  the  best 
test,  on  the  whole,  of  value  in  any  community. 

Now,  the  absurdity  of  the  argument  of  the  city  in  objecting 
that  we  did  not  show  the  market  price  of  the  whole  property 
of  the  Essex  Company  is  found  in  this : There  is  no  market 
price  for  it.  Nobody  ever  sold  anything  of  that  kind  ; but 
they  do  sell  water-power  by  the  horse-power.  So,  in  these 
cases,  it  would  be  very  difficult  to-day  to  establish  the  market 
price  of  a mill  in  Lowell.  I don't  think  you  could  find  any 
two  men  who  would  agree  upon  it,  for  the  simple  reason  that 
they  are  not  selling  mills  in  Lowell  now.  Nobody  sells  any- 
thing of  that  kind,  if  he  can  help  it.  There  is  no  meeting  of 
minds  upon  the  value  of  a mill  by  parties  who  are  standing 
upon  equal  terms.  That  is  necessary  to  make  a market 
price.  You  must  have  a solvent  buyer  and  a solvent  seller, 
who  buy  or  sell  because  each  man  thinks  it  is  for  his  interest 


Argument  of  George  O.  Shattuck,  Esq.  1155 


to  buy  or  sell.  T do  not  think  you  can  find  a sale  of  a mill 
in  Lowell  within  the  last  ten  years  upon  such  terms ; but 
when  a man  fails  or  becomes  bankrupt,  he  has  to  sell  under 
the  hammer,  whether  there  is  any  market  value  or  not. 
There  is,  in  that  case,  no  meeting  of  minds  upon  the  fair 
value  — one  man  wanting  to  buy,  and  another  to  sell.  If 
there  has  been  any  sale,  it  has  been  a forced  sale.  Therefore, 
I say,  if  you  should  ask  any  man  what  is  the  market  value  of 
this  mill,  he  could  not  tell  you.  There  is  not  a man  in  Lowell 
to-day  who  can  tell  you,  or  who  can  give  a judgment  of  any 
substantial  value  as  to  what  the  market  price  of  a good  mill 
like  this,  backed  by  capital,  is:  but  when  we  come  to  sup- 
plementing water  by  steam,  we  are  dealing  with  something 
that  has  an  established  market  value  in  every  city  of  any 
consequence.  And  what  is  it?  They  have  not  offered  any 
testimony  as  to  the  market  value  of  steam,  — not  a word. 
They  tell  you  what  the  Wamesit  Power  Company  can  fur- 
nish power  for ; and  did  you  observe  what  General  Butler, 
in  his  argument  yesterday,  said  upon  that  point?  He  said 
that  this  canal  furnishes  so  much  power  that  the  Company 
can  afford  to  supplement  it  by  steam  and  sell  it  for  $75  a 
horse-power.  That  is  just  what  we  have  been  contending  for. 
It  is  not  their  steam-power  they  are  selling  for  $75,  but  it  is 
a large  amount  of  water-power,  supplemented  by  steam,  that 
they  are  selling  for  $75  a horse-power.  I do  not  give  his 
exact  wrords,  but  that  is  the  substance  of  what  he  said.  No- 
body can  find  an  instance  in  which  steam-power  has  been 
sold  for  less  than  $100  to  $150  a horse-power;  and  Mr. 
Frizell  (and  nobody  contradicts  him  except  Mr.  Farrington) 
says  that  that  is  a fair  price.  That  is  what  we  claim.  I 
do  not  think  it  is  possible,  humanly  speaking,  for  anybody  to 
go  into  a calculation  of  the  actual  cost  of  steam-power  in  any 
particular  locality,  and  cover  it.  There  are  items  which  are 
always  left  out  in  those  calculations ; but  the  market  price 
includes  them  all,  and  that  is  the  test.  $125  or  $150  a horse- 
power, — $150  we  say. 

I will  not  dwell  upon  the  point  which  was  made  in  my 
opening  argument,  that  you  are  to  provide  us  a fund  which 
will  enable  us  to  meet  contingencies  as  a prudent  man  will 
do  it.  That  theory  is  supported  by  the  evidence  of  Mr. 
Farrington,  as  well  as  by  our  own,  and  in  the  very  long 
argument  made  by  the  eminent  counsel  for  the  city  it 
has  not  been  controverted.  It  is  so  plain,  upon  the  evidence 
of  Mr.  Stott,  that  I suppose  it  was  not  thought  to  be  worth 
while  to  attempt  to  controvert  it.  He  has  left  us  that  to  stand 
on.  Nor  has  he  denied  at  any  time,  or  attempted  to  controvert 
my  position,  that  we  are  entitled  to  20  horse-power  for  these 


1156  Argument  of  George  O.  Shattuck,  Esq. 


mills,  because  you  cannot  furnish  power  to  meet  contingen- 
cies at  anything  less  than  the  cost  of  20  horse-power; 
and  therefore  I still  press  the  claim  for  that,  and  my  asso- 
ciates take  the  same  ground. 

I feel,  when  I consider  the  magnitude  of  these  cases,  and 
the  importance  of  the  interests  involved,  as  if  I ought  to 
spend  more  time  in  the  argument  than  I have ; but  my 
embarrassment,  if  I may  use  that  term,  comes  from  the  fact, 
that  from  the  beginning  to  the  end  of  these  cases  there  has 
been  nothing  to  controvert,  except  a little  theory,  somewhat 
ingenious  and  pleasing,  but  wholly  unsupported  theory,  of 
Mr.  llerschel  as  to  the  water,  and  perhaps  a little  testimony 
elicited  from  Mr.  Farrington,  which  was  contradicted  by 
himself  in  the  earlier  part  of  his  examination.  There  is 
nothing  here,  from  the  beginning  to  the  end,  to  meet.  It 
is  a plain  case  of  testimony  all  one  way.  Our  evidence 
has  not  been  met,  not  because  the  city  would  not  have  met 
it,  if  they  could,  but  because  the  representatives  of  the  city, 
sitting  here,  know  it  would  be  useless  to  try  to  meet  it.  I 
stand,  therefore,  upon  our  evidence,  and  if  this  case  is  to 
be  decided  upon  evidence,  we  are  sate  for  substantially  the 
whole  of  our  claim. 

Old  Belvidere  Mill. 

I now  come  to  the  case  of  the  old  Belvidere  mill.  There 
was  so  much  said  about  the  title  to  the  property,  that  I 
apprehended  some  difficulty,  and  I must  say  that  I felt  grati- 
fied when  I found  that  the  vigilance  of  the  counsel  for  the 
city  had  not  detected  any  flaws  in  our  title,  except  the  ones 
which  have  been  pointed  out,  and  to  which  I shall  now 
allude.  It  has  been  examined  with  great  thoroughness  and 
accuracy,  and  we  stand  here  to-day  with  a clear  record 
title  to  ninety-one  one  hundred  twentieths  part  of  all  the 
water  at  the  Middlesex  dam,  except  that  required  by  the 
Middlesex  Co.  for  three  breast-wheels  and  a fulling  mill. 
According  to  the  uncontradicted  testimony  of  Mr.  Frizell, 
that  company  has  a right  to  not  exceeding  1 68  cubic  feet  per 
second. 

The  first  question  affecting  the  title,  which  is  raised  here, 
is  as  to  the  old  saw-mill.  If  the  ingenious  counsel  had  not 
suggested  it,  I don’t  think  any  doubt  would  have  been 
raised  in  my  mind  upon  the  construction  of  the  deed.  I 
cannot  say  that,  after  his  suggestion,  there  is  any  real  doubt. 
The  language  of  the  deed  seems  to  me  to  be  very  plain. 
Here  is  the  deed  from  Thomas  Hurd  to  Winthrop  How 
(page  916),  dated  May  31st,  1821,  which  conveys  the  land 
on  the  cast  side  of  Concord  river  in  Belvidere.  I read  the 


Argument  or  George  O.  Shattuck,  Esq.  1157 


exact  words : " With  the  privileges  thereunto  belonging, 
excepting  the  mill  privilege  where  the  old  saw-mill  now 
stands,  the  said  Hurd  reserving  to  himself,  his  heirs  and 
assigns,  a right  to  erect  and  maintain  a dam  across  said 
river  above  said  saw-mill,  where  the  dam  now  stands ; and 
also  a right  to  draw  and  use  the  whole  of  the  water  of  said 
river  above  said  dam  at  his,  the  said  Hurd’s,  factory  on  the 
west  side  of  said  river.”  How  can  anything  be  plainer?  He 
intended  to  reserve  for  himself  all  the  water  in  the  river ; 
therefore,  when  he  was  selling  the  land  on  the  enst  side,  he 
sold  it  with  all  the  privileges  thereunto  belonging,  except 
the  mill  privilege  of  the  saw-mill,  so  as  to  secure  to  himself 
all  the  water  on  the  west  side  of  the  river.  I do  not  see 
how  anything  can  be  plainer  than  that.  It  is  clearly  to  be 
inferred  from  this,  that  at  that  time  there  was  no  water 
privilege  on  the  east  side  of  the  river  except  the  saw-mill 
privilege.  Hurd  sold  all  the  land,  and  all  the  privileges 
except  the  saw-mill  privilege,  and  he  did  not  sell  that, 
because  he  wanted  to  reserve  all  the  water  to  be  used  on  the 
west  side  of  the  river. 

Mr.  Child.  You  claim  that  excluded  him  from  using 
the  saw-mill  privilege  ? 

Mr.  Shattuck.  Certainly  it  did.  It  is  as  plain  as  it  can 
be.  I will  read  it  again  : "Reserving  to  himself,  his  heirs 
and  assigns,  a right  to  erect  and  maintain  a dam  across  said 
river  above  said  saw-mill,  where  the  dam  now  stands;  and 
also  a right  to  draw  and  use  the  whole  of  the  water  of  said 
river  above  said  dam  at  his,  the  said  Hurd’s,  factory  on  the 
west  side  of  said  river.”  I do  not  see  how  anything  can  be 
plainer  than  that.  1 do  not  know  why  my  friend  (Mr. 
Child)  should  laugh.  Seriously,  1 really  cannot  see  where 
the  doubt  is. 

Mr.  Child.  I certainly  do  not  understand  your  theory. 

Mr.  Shattuck.  Let  me  read  it  again  : " With  the  privi- 
leges thereunto  belonging,  excepting  the  mill  privilege, 
where  the  old  saw-mill  now  stands,  the  said  Hurd  reserving 
to  himself,  his  heirs  and  assigns,  a right  to  erect  and  main- 
tain a dam  across  said  river  above  said  saw-mill,  where  the 
dam  now  stands ; and  also  a right  to  draw  and  use  the  whole 
of  the  water  of  said  river  above  said  dam  at  his,  the  said 
Hurd’s,  factory,  on  the  west  side  of  said  river.”  He 
reserves  the  right  to  take  all  the  water  of  the  river,  — to 
" draw  and  use”  the  whole  of  the  water. 

Mr.  Child.  He  wants  it,  and  the  surplus  is  to  go  to  the 
saw-mill. 

Mr.  Shattuck.  There  is  nothing  said  about  " surplus  ” 
here  at  all.  This  is  the  first  deed.  Then  by  a paper  which 
is  dated  the  same  day,  but  which  was  undoubtedly  intended 


1158  Argument  of  George  O.  Shattuck,  Esq. 


to  take  effect  after  this  first  one,  he  conveys  " to  Winthrop 
How,  his  heirs  and  assigns  forever,  a right  to  build  any  mill 
or  mills  on  the  east  side  of  Concord  river  below  the  mill- 
dam  running  from  said  Hurd’s  factory  on  the  west  side  of 
said  river  to  the  easterly  side  thereof ; and  also  a privilege 
to  draic  and  use  the  water  from  the  mill-pond  above  said 
dam  for  the  purpose  of  carrying  said  mill  or  mills  ” Now, 
that  is  an  unlimited  right.  The  intention  was,  undoubtedly, 
to  have  the  old  saw-mill  abandoned,  because  he  says  he  may 
" build  any  mill  or  mills  on  the  east  side  of  Concord  river, 
below  the  mill-dam,  running  from  said  Hurd’s  factory,  with 
the  privilege  to  draw  and  use  the  water  from  the  pond  above 
said  dam  for  the  purpose  of  carrying  said  mill  or  mills  ” — 
as  many  as  they  might  choose  to  build  there.  "The  said 
Hurd  reserving  to  himself,  his  heirs  and  assigns,  the  first 
and  exclusive  right  to  the  use  of  sufficient  water  from  said 
pond  to  carry  a fulling-mill,  and  three  breast- wheels,  each 
12  feet  in  diameter,  and  15  in  length,  with  the  machinery 
and  works  that  may  be  attached  or  connected  with  the 
same.”  Then  How  agrees  for  himself,  his  heirs  and  assigns, 
" that  he  or  they  will  not  draw  or  use  any  of  the  water  from 
the  aforesaid  mill-pond  when  there  is  not  sufficient  head- 
water in  said  pond  to  carry  a fulling-mill  and  three  breast- 
wheels  as  aforesaid,  or  in  any  way  deprive  the  said  Hurd  of 
the  first  and  exclusive  right  to  the  use  of  the  water  in  said 
mill-pond  as  hereinbefore  reserved.”  Now,  taking  these 
deeds,  it  seems  that  at  first  Hurd  owned  all  the  land  on  both 
sides  of  the  river.  There  was  a saw-mill  on  the  east  side, 
and  he  sells  all  the  land  there  was  on  the  east  side,  with  all 
the  privileges  thereunto  belonging;  except  the  privilege  of 
the  saw-mill,  and  he  reserves  a right  to  use  all  the  water  of 
the  river  on  the  west  side.  After  he  had  done  that,  he 
conveyed  to  this  Mr.  How  a right  to  erect  just  as  many 
mills  as  he  pleased  on  the  east  side,  and  to  use  the  water  for 
those  mills,  subject  to  only  one  limitation,  and  that  was  the 
three  breast- wheels  and  a fulling-mill. 

Mr.  Child.  He  did  not  undertake  to  convey  to  him  the 
water  above  that,  but  the  right  to  use  from  the  pond,  reserv- 
ing the  exclusive  right  to  himself  of  three  breast-wheels  and 
a fulling-mill.  They  both,  I think,  had  the  same  privilege 
of  using  the  water. 

Mr.  Shattuck.  That  saw-mill  is  not  mentioned  in  any 
deed  here.  Here  are  deeds  by  the  hundred.  The  Middlesex 
right  has  been  described,  I will  venture  to  sav,  in  a hundred 
deeds,  and  there  has  never  been  a suggestion  of  that  old 
saw-mill  which  I can  find  anywhere.  The  only  suggestion 
here  comes  upon  an  interpretation  of  that  deed  which  it  is 


Argument  of  George  O.  Shattuck,  Esq.  1159 

difficult  to  see  how  the  ingenuity  of  any  counsel  could  have 
suggested. 

Mr.  Child.  The  fact  still  remains,  that  there  is  another 
privilege  which  has  been  used  all  the  time,  and  that  is  the 
one  which  the  commissioners  saw  when  they  were  at  Lowell, 
on  the  island. 

Mr.  Shattuck.  We  do  not  own  all  the  water.  There 
are  several  parties  owning  portions  of  the  water. 

Mr.  Child.  I know  there  are  several  others.  There  is 
John  Nesmith.  I doubt  whether  the  outstanding  four 
twenty-fifths  are  not  all  of  them  in  the  Middlesex  woollen 
mill.  The  commissioners  saw  the  pen-stocks  that  run  by 
Mr.  Stott’s  mill  when  they  were  up  there. 

Mr.  Shattuck.  I am  so  well  satisfied  with  the  construction 
of  this  deed,  and  with  the  subsequent  deeds,  that  I should, 
of  course,  be  glad  to  have  any  investigation  made,  and  I 
would  like  to  have  the  commissioners  look  at  anything  they 
can  find.  I have  no  doubt,  if  there  was  any  saw-mill,  they 
would  have  heard  so ; there  would  have  been  some  little 
better  evidence  of  it  than  Gen.  Butler’s  argument. 

Mr.  Child.  I do  not  know  as  we  have  got  to  find  the 
evidence. 

Mr.  Shattuck.  I am  willing  to  leave  that  without  any 
further  discussion. 

Now,  I come  to  the  other  point,  — Abner  Ball.  The 
point  is  this:  By  the  deed  printed  on  page  931,  Alpheus 
Smith  conveys  to  Seth  Ames  and  George  Brown,  in  trust  for 
creditors,  a certain  parcel  of  land,  " except  so  much  thereof 
as  I have  heretofore  conveyed  to  Hazen  Elliot  and  Abner 
Ball.”  Now,  the  objection  is,  that  there  is  no  conveyance  to 
Abner  Ball ; and  when  Seth  Ames  conveys  to  the  Whitney 
mills,  he  conveys  the  same  lots  (this  was  February  27, 
1839),  except  so  much  as  was  conveyed  to  Hazen  Elliot, 
making  no  reference  to  any  conveyance  to  Ball  (this  is  on 
page  932,  "Deed  from  Seth  Ames  to  the  Whitney  Mills), 
with  a warranty  against  all  persons  claiming  under  Smith. 
Now,  we  have  been  in  possession,  and  claiming  title  under 
this  last  deed  of  Seth  Ames,  for  almost  forty  years,  and  that 
gives  us  a title.  The  land  having  been  conveyed  to  Ames, 
subject  to  the  conveyance  to  Hazen  Elliot  and  Abner  Ball, 
and  Ames  selling  it  and  warranting  it,  subject  to  the  Elliot 
deed  only  ; and,  there  being  no  deed  to  Abner  Ball  anywhere 
to  be  found,  the  fair  inference  is  that  there  was  a mistake  in 
the  reference  to  a deed  to  Ball. 

The  conveyance  to  Ames  was  in  trust  for  creditors,  and 
may  have  been  hastily  made,  or  it  may  have  been  supposed 
there  was  a deed,  or  a contract  for  a conveyance,  or  some- 


' 


. 


MmmumMi  of  HjMMteetts. 


SUPERIOR  COURT. 

Middlesex,  ss.  December  Term,  1876. 


ESSEX  COMPANY,  PETR.,  vs.  CITY  OF  BOSTON. 
SAXONVILLE  MILLS,  PETRS.,  vs.  SAME. 

CHARLES  P.  TALBOT  & AL.,  PETRS.,  vs.  SAME. 
JAMES  R.  FAULKNER  & AL.,  PETRS.,  vs.  SAME. 
MARSHAL  P.  WILDER  & AL.,  PETRS.,  vs.  SAME. 
LUTHER  W.  FAULKNER,  PETR.,  vs.  SAME. 

C.  BROWN  SNYDER  & AL.,  PETRS.,  vs.  SAME. 
BELVIDERE  WOOLLEN  MFG.  CO.,  PETRS.,  vs.  SAME. 
SAMUEL  N.  WOOD,  PETR.,  vs.  SAME. 

LOWELL  BLEACHERY,  PETR.,  vs.  SAME. 

NANCY  L.  RICHMOND,  PETR.,  vs.  SAME. 


COMMISSIONERS’  REPORT  ON  QUESTIONS  OF  LAW. 

In  the  above-entitled  causes,  having  been  appointed,  under 
the  provisions  of  Chapter  177  of  the  Acts  of  1872,  to  assess 
the  damages,  if  any,  which  the  several  petitioners  have 
sustained,  and  having  made  a report  and  award  of  damages 
in  each  of  said  causes,  and  having  returned  the  same  into  said 
Court,  we  hereby,  at  request  of  counsel,  make  this  further 
report  of  the  rulings  and  decisions  made  by  us  upon  certain 
questions  of  law  presented  at  the  hearing  of  said  causes,  and 
of  the  facts  before  us,  so  far  as  is  necessary  for  the  correct 
understanding  of  said  questions,  rulings  and  decisions ; 
which  further  report  we  hereby  make  part  of  our  said  report 
and  award  of  damages  in  each  case,  so  far  as  the  same  is 
applicable  thereto. 

The  several  petitioners  sought  to  recover  damages  for  the 
taking  and  diversion  from  their  several  premises  of  the 
waters  of  the  Sudbury  river  by  the  City  of  Boston,  under  the 
provisions  of  Chapter  177  of  the  Acts  of  1872,  and  Chapter 
167  of  the  Acts  of  1846. 

The  premises  of  the  Saxonville  Mills  are  upon  the  Sudbury 
river.  The  premises  of  the  Essex  Company  are  on  the 
Merrimack  river,  at  Lawrence,  below  the  point  where  the 


2 


Concord  river  empties  into  the  Merrimack  ; the  premises  of 
all  the  other  petitioners  are  upon  the  Concord  river,  or 
derive  their  water-power  from  said  river.  The  Sudbury 
river  is  a branch  of  the  Concord.  , 

It  appeared  in  evidence,  and  was  not  in  controversy  before 
us,  that  under  due  authority  from  the  City  Council  of  the 
City  of  Boston,  said  city,  by  the  Cochituate  Water  Board,  in 
pursuance  of  the  acts  referred  to,  on  the  21st  day  of  Janu- 
ary, 1875,  took  for  the  use  and  benefit  of  said  city  all  the 
water  of  Sudbury  river  at  and  above  a certain  dam  built  by 
said  city  in  1872  in  the  town  of  Framingham,  above  the 
premises  of  said  Saxonville  Mills  upon  said  river,  and  above 
the  point  wThere  it  empties  into  the  Concord  river,  and  on 
the  17th  day  of  March,  1875,  filed  in  the  Registry  of  Deeds 
for  the  county  of  Middlesex  a record  or  certificate  of  such 
taking,  as  required  under  the  provisions  of  said  Act  of  1846. 

A copy  of  said  certificate  is  set  forth  on  pages  17  and  18 
of  the  printed  record  of  the  proceedings  before  us,  and  is 
hereby  made  part  of  this  report,  as  also  is  said  printed 
record,  so  far  as  the  same  is  hereinafter  referred  to. 

It  also  appeared  that  prior  to  the  filing  of  any  of  the 
petitions,  to  wit,  from  the  1st  day  of  January,  1875,  to  the 
18th  day  of  March,  1875,  as  well  as  at  sundry  other  times 
since  the  date  last  named,  the  City  of  Boston  by  its  said 
dam  diverted  the  whole  water  of  the  Sudbury  river,  includ- 
ing the  flow  of  water  from  Farm  pond,  wdiich  is  tributary 
to  the  Sudbury,  excepting  the  flow  of  1,500,000  gallons  per 
day,  reserved  by  Section  4 of  said  Act  of  1872,  and  that  the 
water  so  diverted  was  taken  by  an  open  ditch  or  conduit, 
previously  constructed  by  said  city,  into  Lake  Cochituate, 
for  the  use  of  said  city. 

The  several  petitioners  claimed  and  proved  title  each  to 
the  several  parcels  of  land  described  in  their  several  peti- 
tions, copies  of  which  are  set  forth  in  the  said  printed 
record,  and  are  hereby  referred  to ; and  each  of  the  peti- 
tioners except  the  Essex  Company  occupied  its  said  lands, 
wholly  or  in  part,  as  a mill-site  for  one  or  more  buildings 
for  manufacturing  purposes,  and  with  machinery  dependent 
wholly  or  in  part  upon  water-power  derived  from  the  several 
dams  hereinafter  more  particularly  specified ; and  it  was  for 
injury  sustained  by  the  diversion  of  water  from  the  said 
premises  by  the  said  taking  of  the  Sudbury  river  that  the 
petitioners  sought  to  recover  damages. 

I. 

It  appeared  at  the  hearing  that  long  prior  to  the  taking  of 
Sudbury  river  by  the  city,  sundry  dams  had  been  built  by 


3 


riparian  proprietors  at  various  points  upon  the  said  river 
and  its  tributary  branches  above  the  works  of  the  said  city ; 
and  that  the  water-power  derived  from  such  dams  was  and 
long  had  been  in  use  for  manufacturing  and  mechanical  pur- 
poses ; that  the  reservoirs  created  by  such  dams,  and  the 
use  thereof  in  the  manner  in  which  they  were  used  and  in 
which  such  reservoirs  are  ordinarily  used  and  managed  for 
such  purposes,  and  for  the  prudent  and  economical  use  of 
the  water  of  such  streams,  tended  to  equalize,  and,  in  dry 
seasons  and  low  stages  of  the  water,  to  increase,  the  flow 
of  a variable  stream  like  the  Sudbury  river,  and  that 
the  flow  of  the  Sudbury  was  in  fact  so  equalized  and 
increased. 

It  did  not  appear  that  any  of  the  petitioners  had  the  legal 
right  to  compel  the  maintenance  or  to  control  the  use  of  any 
of  said  dams  or  reservoirs,  or  any  rights  as  to  the  same  other 
than  the  ordinary  rights  of  the  lower  riparian  proprietor 
against  the  riparian  proprietor  above. 

It  was  contended  by  the  city  as  applicable  to  all  the  cases 
before  us,  that  the  several  petitioners  could  in  no  event 
claim  damages  except  for  the  loss  of  the  flow  of  the  Sud- 
bury river  in  a state  of  nature,  unaffected  by  the  construc- 
tion and  use  of  such  dams  and  reservoirs  ; and  that  no  dam- 
ages should  be  allowed  by  us  for  the  loss  of  such  increased 
supply  of  water  as  was  contributed  by  reason  of  such  dams 
and  reservoirs. 

But  being  of  opinion  that  the  condition  of  things  and  the 
interest  of  the  riparian  proprietors,  which  led  to  the  con- 
struction and  long-continued  maintenance  and  use  of  said  dams 
and  reservoirs,  will  substantially  exist  and  continue  in  time  to 
come,  and  that  but  for  the  diversion  of  the  water  by  the  city 
the  riparian  proprietors  below,  occupying  and  using  the  mill- 
sites  of  the  several  petitioners,  might  reasonably  have  relied 
upon  such  continued  maintenance  and  use,  and  the  beneficial 
effect  thereof  to  their  several  premises  ; and  that  the  market- 
value  of  their  said  premises  and  of  their  water-power 
thereat  was  properly  increased  by  such  expectation  and 
reliance, — we  have,  in  our  several  awards  of  damages  to 
the  petitioners,  assumed  that  the  flow  of  the  Sudbury  river 
would,  but  for  such  diversion,  have  continued  to  be,  as  it  was 
before  such  diversion,  beneficially  affected  by  said  dams  and 
reservoirs,  and  that  the  petitioners  are  entitled  to  damages 
for  its  loss  as  so  increased  and  benefited  ; but  in  such  estimate 
and  assessment  of  damages  we  make  no  allowance  for  any 
increased  flow  of  the  Sudbury  river  which  can  be  attributed 
to  the  effect  of  a certain  reservoir  constructed  by  the  City 
of  Boston  upon  said  stream. 


4 


II. 

All  the  several  petitioners  contended  that  the  acts  of  the 
city  constituted  a taking  of  the  entire  water  of  the  Sudbury 
river  above  its  dam,  except  of  the  reserved  flow  of  1,500,000 
gallons  per  day  ; and  th;it  they  were  accordingly  entitled  to 
have  their  damages  assessed  upon  the  assumption  that,  with 
that  exception,  they  would,  from  the  date  of  the  taking,  be 
forever  deprived,  at  all  times  and  seasons,  of  the  entire  flow 
of  said  river. 

On  the  other  hand,  it  was  contended  by  the  city  that  it 
would  not  for  many  years  require,  at  all  times  for  its  use,  the 
whole  flow  of  the  Sudbury  river,  which  it  might  by  law  di- 
vert ; and  that  it  did  not  intend  to  divert  the  whole  flow 
thereof ; and  that  the  works  which  it  was  now  constructing, 
and  which  it  proposed  to  construct,  would  not  be  capable  of 
so  diverting  the  whole  stream  during  a great  part  of  the  year  ; 
and  evidence  was  offered  on  behalf  of  the  city  to  establish 
these  propositions. 

We  were  of  opinion,  and  so  held,  that  under  said  acts  the 
city  had  acquired  the  right  (with  the  exception  above  stated) 
to  divert  and  take  the  whole  water  of  the  Sudbury  river,  and 
by  its  action  under  the  same  had  asserted  and  exercised  said 
right ; that  thereby  the  several  petitioners  had  been  divested 
of  their  right  to  have  any  part  of  the  Sudbury  river  ( except  as 
aforesaid)  flow  to  or  by  their  several  premises  ; and  were  en- 
titled to  recover  the  damages  sustained  in  their  several  estates 
by  the  loss  of  such  right ; and  that  the  city  could  not  be 
heard  nor  allowed  to  introduce  evidence  as  to  its  intent  not 
to  exercise  its  right  to  the  fullest  extent  to  which  it  was  prac- 
ticable for  it  to  exercise  the  same  ; and  we  accordingly  ex- 
cluded said  evidence,  and  have  in  our  report  assessed  damages 
in  favor  of  the  several  petitioners,  upon  the  assumption  that 
the  City  of  Boston  may,  and  will  hereafter,  divert  all  the 
water  of  the  said  river,  at  all  times  and  seasons  of  the  year 
during  which  it  will  be  practicable  so  to  divert  it,  except  said 
1,500,000  gallons  per  day. 

It  appeared  in  evidence  that  the  flow  of  the  Sudbury  and 
the  flow  of  the  Concord  and  the  Merrimack  at  the  premises  of 
the  several  petitioners  vary  within  very  wide  limits  at  differ- 
ent seasons  of  the  year  ; and  that  the  magnitude  and  character 
of  the  works  which  are  constructed,  and  which  would  be  con- 
structed by  any  prudent  mill-owners  upon  said  premises,  to 
be  operated  by  water-power,  and  the  value  of  such  water- 
power at  said  premises,  are,  and  must  be  in  a great  degree, 
regulated  and  limited  by  and  according  to  the  supply  of 
water  which  can  be  permanently  and  constantly  relied  on  at 
low  stages  of  the  water  in  said  streams.  We  find  that  at  the 


5 


premises  of  the  several  petitioners,  other  than  the  Saxonville 
Mills,  the  supply  of  water  furnished  by  the  Concord  and 
Merrimack  rivers,  from  sources  other  than  the  Sudbury  river, 
is  and  will  be  sufficient  to  supply,  for  a considerable  period 
of  each  year,  all  the  water  which  can  be  made  practically 
available  and  of  value  to  the  several  works  of  the  petitioners, 
or  to  any  other  works  which  can  prudently  or  reasonably  be 
built  upon  the  dams  and  mill-sites  of  said  petitioners. 

But  we  find  as  to  all  said  petitioners  other  than  the  Saxon- 
ville Mills,  that  during  such  periods  of  the  year  as  the  Con- 
cord and  Merrimack  do  not  and  will  not  furnish  such  sufficient 
supply  from  other  sources  than  the  Sudbury,  and  when,  but 
for  the  diversion  by  the  city,  said  petitioners  could  and  would 
rely  upon  the  contribution  of  the  Sudbury  for  such  supply, 
it  will  be  practicable  for  the  city  to  divert  the  entire  flow  of 
the  Sudbury  river  above  its  dam ; and  that  at  some  such 
seasons  the  said  flow  has  been  already  so  diverted ; and  that 
the  works  now  constructed  and  in  process  of  construction  by 
the  city,  as  shown  and  explained  to  us  at  the  view  of  the 
premises,  will  be  sufficient  for  such  entire  diversion  at  all  such 
seasons. 

And  we  have  accordingly  assessed  the  damages  of  said  sev- 
eral petitioners,  other  than  the  said  Saxonville  Mills,  on  the 
assumption  that  at  such  seasons  and  at  all  seasons  when  the 
loss  of  the  water  of  the  Sudbury  river  will  be  appreciably 
and  injuriously  felt  by  the  said  petitioners,  the  flow  of  the  Sud- 
bury will  be  wholly-diverted  from  their  premises,  except  said 
reserved  amount  of  1,500,000  gallons  per  day. 

III. 

The  case  of  the  Saxonville  Mills  differed  from  that  of  the 
other  petitioners  in  that  they  depended  wholly  upon  the 
water  of  the  Sudbury  river  for  their  supply  of  water-power ; 
and  they  claimed,  as  the  other  petitioners  did,  that  their 
damages  were  to  be  assessed  on  the  assumption  that  from 
the  time  of  the  taking  at  all  times  and  seasons  they  were  to 
be  wholly  deprived  of  said  entire  supply. 

We  find,  however,  that  in  the  nature  of  things,  from  the 
character  of  the  stream  of  the  Sudbury  river,  it  will,  in  fact, 
be  impracticable  for  the  City  of  Boston  to  divert  for  its  use 
the  whole  flow  of  the  said  river  at  all  seasons  of  the  year. 

That  under  section  4 of  the  Act  of  1872  the  city  is  not 
authorized  '*to  draw  from  Farm  pond  or  Sudbury  river  into 
Lake  Cochituate  when  the  water  runs  over  the  dam  at  Lake 
Cochituate ; ” that  the  city  has  as  yet  exercised  its  right  to 
draw  said  water  from  the  Sudbury  river  solely  through  a 


6 


conduit  or  trench  leading  into  said  lake  ; and  that  there  have 
been,  and  in  the  ordinary  course  of  nature  must  and  will  in- 
evitably be,  times  when  the  water  will  run  over  the  dam  at 
Lake  Cochituate  before  the  city  can  construct  its  new  conduit 
or  other  works  capable  of  receiving  and  diverting  the  whole 
flow  of  the  river ; and  that  there  will  also  be  in  all  future 
years  some  portion  of  time  when  a supply  of  water,  however 
irregular  in  interval  or  variable  in  its  amount,  will  reach  said 
mills  from  the  flow  of  the  Sudbury  past  the  works  of  the  city, 
by  reason  of  its  being  impracticable  for  the  city  wholly  to 
divert  the  same  ; and  in  assessing  the  damages  to  which  we 
find  the  Saxonville  Mills  entitled,  we  have,  against  the  objec- 
tion of  the  said  petitioners,  made  an  allowance  for  the  slight 
value  of  the  water  already  received  by  them,  and  which,  upon 
our  finding  of  the  facts,  they  must  and  will  hereafter  receive 
from  the  surplus  flow  of  the  Sudbury. 


IV. 

The  said  Saxonville  Mills  also  made  claim  for  damages 
sustained  in  respect  to  a certain  parcel  of  land  at  the  outlet  of 
Farm  pond,  being  the  parcel  numbered  5,  in  the  schedule 
annexed  to  their  petition,  and  in  respect  to  the  dam  and 
certain  rights  of  flowage  connected  therewith.  The  title  of 
the  petitioners  to  the  land  and  dam  in  question  was  disputed 
by  the  city  ; and  no  evidence  was  before  us  of  any  title  in  the 
petitioners,  or  that  the  right  of  flowage,"  if  any  such  existed, 
was  of  any  value  whatever.  And,  accordingly,  we  find  that 
the  petitioners  are  not  entitled  to  damages  in  respect  to  said 
land,  dam,  or  rights  of  flowage. 

It  was  agreed  by  the  parties  at  the  hearing  that  the  Saxon- 
ville Mills  might  recover  in  this  action  such  damages  as  they 
had  sustained  by  reason  of  the  diversion  of  the  water  of  the 
Sudbury  river  at  sundry  times  by  the  Water  Commissioners, 
prior  to  the  taking  filed  in  Jauuary,  1875  ; and  we  have  ac- 
cordingly included  such  damages  in  our  award  in  this  cause. 

Y. 

In  answer  to  all  the  petitions  except  that  of  the  Saxonville 
Mills,  the  respondents  denied  the  right  of  the  petitioners  to 
recover  any  damages  whatsoever,  by  reason  of  the  defence 
set  up  in  their  answers  to  the  several  petitions,  setting  forth 
certain  legislation  concerning  the  Proprietors  of  the  Middlesex 
Canal,  and  the  action  of  said  corporation  uuder  the 
same. 


7 


The  respondents  put  in  proof  the  charter  of  said  corpora- 
tion, Act  June  22,  1793,  Chap.  21,  and  the  following  acts  in 
addition  thereto,  viz.:  Act  Feb.  28,  1795;  Act  June  25, 
1798  ; Act  January  26,  1800;  Act  March  3,  1803. 

It  appeared  that  it  was  found  impracticable  by  said  cor- 
poration to  construct  its  canal  as  it  was  originally  intended 
under  its  charter,  and  to  use  therefor  the  waters  of  the  Mer- 
rimack, because  at  the  point  where  the  line  of  said  intended 
canal  intersected  the  Concord  river,  at  Billerica,  the  waters 
of  the  Concord  were  twenty  feet  or  more  above  the  level  of 
the  waters  of  the  Merrimack,  where  the  same  were  to  enter 
such  canal. 

That  in  1794  the  said  corporation,  by  deed  dated  March 
25,  1794  (a  copy  whereof  is  set  forth  on  pages  372  and 
373  of  the  printed  record),  purchased  of  Thomas  Richardson, 
a parcel  of  land  containing  about  40  acres  on  the  west  side  of 
Concord  river,  at  Billerica,  and  a small  parcel  of  land  on  the 
east  side  of  said  river,  with  the  dam  and  mill  privilege  there 
known  as  Richardson’s  mills,  being  the  same  premises  now 
held  by  Charles  P.  Talbot  and  Thomas  Talbot,  and  b}r  James 
R.  Faulkner  and  Charles  Faulkner,  petitioners. 

That  said  Richardson  derived  his  title  from  one  Osgood, 
whose  title  was  obtained  under  a grant  from  the  town  of  Bil- 
lerica in  1708,  set  forth  on  page  371  of  the  printed  record. 

That  said  proprietors  of  the  Middlesex  Canal,  in  or  about 
1798,  rebuilt  the  dam  at  said  point  in  Concord  river,  and 
raised  thereby  a head  of  water  to  supply  their  canal,  using 
the  surplus  water  to  operate  their  mills  at  said  dam,  and  at 
all  times  reserving  the  first  right  of  water  for  the  grist-mill 
which  had  been  built  and  maintained  under  the  provisions  of 
the  grant  to  Osgood. 

That  in  or  about  1804  said  proprietors  completed  their 
canal,  carrying  thereby  the  water  of  the  Concord  river  into 
the  Merrimack  above  Lowell,  and  into  the  Charles  river  near 
Boston,  and  opened  and  used  the  same  for  public  navigation, 
using  the  head  of  water  raised  by  their  dam  at  Billerica  to 
feed  their  canal. 

That  in  1826  they  built  a new  and  more  permanent  dam 
at  the  same  point,  being  the  same  now  used  by  said  Messrs. 
Talbot  and  Faulkner ; and  that  they  also  rebuilt  the  grist- 
mill and  other  mills  at  said  dam,  and  also  at  sundry  times 
made  grants  of  the  water-power  created  by  said  dam,  re- 
serving, however,  always  the  first  right  of  water  for  said  grist- 
mill, and  also  the  right  to  use  the  water  for  their  canal. 

The  title  under  these  grants  from  said  corporation  became 
vested  in  the  Messrs.  Talbot  and  Faulkner,  petitioners,  prior 


8 


to  their  deeds  of  partition  made  in  1857,  and  hereinafter 
referred  to. 

It  appeared  that  during  part  of  the  dry  seasons  of  the 
year  the  canal  required  nearly  all  the  water  of  the  Concord 
river  beyond  what  was  required  for  the  use  of  said  grist- 
mill. 

That  said  canal  was  maintained  and  used  by  said  proprie- 
tors until  1851,  when  it  became  and  was  wholly  unfit  for 
use,  and  was  in  part  filled  up,  and  was  wholly  abandoned; 
and  that  it  has  been  ever  since  entirely  disused  and  aban- 
doned. 

That  at  or  about  the  time  of  so  abandoning  the  use  of  said 
canal,  and  as  part  of  the  winding  up  of  its  affairs,  said  cor- 
poration, by  deed  dated  September  22,  1851,  set  forth  on 
pages  363  to  369  of  the  printed  record,  conveyed  to  said 
Charles  P.  Talbot  and  Thomas  Talbot  all  its  lands  at  said 
Billerica,  and  all  its  rights,  title,  interest,  and  estate,  under 
said  deed  of  Thomas  Richardson,  in  and  to  the  use  of  the 
waters  of  Concord  river,  and  the  mill  privileges  thereto 
belonging,  subject  to  the  said  prior  grants,  and  to  the  con- 
ditions set  forth  in  said  deed. 

By  said  deed  the  said  corporation  expressly  reserved 
over  the  lands  conveyed,  which  included  portions  of  its 
canal,  all  easements  and  services  necessary  for  or  incident  to 
the  preservation  and  use  of  said  canal,  for  the  purposes  of 
navigation,  and  of  all  rights  of  the  public  therein,  until  the 
same  shall  be  lawfully  discontinued. 

Said  deed  also  contained  the  " express  condition  that  the  said 
grantees  shall  perform  all  the  duties  and  obligations  towards 
the  town  of  Billerica  which  the  said  grantors  are  bound  to 
perform  by  virtue  of  the  vote  of  the  inhabitants  of  said  town, 
referred  to  in  the  deed  of  said  Thomas  Richardson,  and  all 
other  conditions  set  forth  in  said  deed;  and  also,  that  the 
said  grantees  shall  not,  whensoever  forbidden  so  to  do  by  said 
corporation,  in  writing,  signed  by  their  agent,  and  until  said 
canal  shall  be  lawfully  discontinued,  draw  the  waters  of  said 
river  lower  than  three-fourths  of  an  inch  below  the  top  of  the 
flash-boards  on  the  stone  dam  (the  lawful  height  of  said  flash- 
boards  being  fixed  by  the  top  of  an  iron  pin  driven  into  a fast 
rock  at  the  side  of  the  river,  near  said  dam,  which  is  referred 
to,  to  determine  the  point  below  which  the  said  waters  shall 
not  be  drawn)  ; and  on  the  further  condition  that  the  said 
grantees  shall,  after  the  discontinuance  of  said  canal,  either 
maintain  and  keep  in  good. repair  at  their  own  expense,  the 
two  canal  bridges  southerly  of  the  Concord  river,  adjoining 
lands  above  described,  or  else  shall  takedown  the  said  bridges 
and  fill  up  said  canal  under  the  same,  and  make  thereon  in 


9 


the  place  of  said  bridges  a good,  sufficient  roadway  to  the 
satisfaction  of  the  town  of  Billerica ; the  said  grantees  to 
have  for  their  owm  use  and  benefit  all  the  stone  and  materials 
of  which  said  bridges  are  composed.” 

It  also  appeared  that  since  1851,  at  all  times,  the  said 
Messrs.  Talbot  and  Faulkner  have  been  seized  and  possessed 
and  in  open  and  exclusive  enjoyment,  adversely  to  all  other 
persons,  of  the  land  and  mills  formerly  of  the  said  corpo- 
ration at  said  Billerica,  and  of  certain  mills  by  them,  the 
said  Talbots  and  Faulkner,  built  at  said  dam,  and  of  the  said 
dam,  and  the  water-power  and  use  of  the  water  of  the  Con- 
cord river  thereat,  for  the  purpose  of  running  their  said  mills, 
as  set  forth  in  their  several  petitions. 

That  in  1857,  by  deed  from  said  Faulkners  to  said  Talbots 
dated  April  1,  1857,  and  by  deed  from  said  Talbots  to  said 
Faulkners,  dated  May  8,  1857,  which  deeds  are  set  forth  on 
pages  376-381  of  said  printed  record,  said  Faulkners  con- 
veyed to  said  Talbots  all  the  lands,  mills,  water-rights  and 
mill-privileges  by  them  acquired,  owned,  or  held  as  aforesaid, 
and  said  Talbots  reconveyed  to  the  said  Faulkners  the  land 
and  mills  now  held  by  said  Faulkners,  as  set  forth  in  the  pe- 
tition, with  the  right  to  said  Faulkners  to  draw  and  use  wrater 
from  the  Concord  river  for  said  mills,  and  reserving  to  the 
said  Talbots  the  right  to  draw  and  use  water  from  said  river 
for  their  mills,  as  defined  and  limited  specifically  by  the 
grants,  conditions  and  reservations  in  said  deed  minutely  set 
forth. 

The  town  of  Billerica,  by  deed  dated  March  25,  1864,  set 
forth  on  page  370  of  the  printed  record,  released  and  con- 
veyed to  said  Talbots  " all  the  right,  title  and  interest  which 
said  town  of  Billerica  has  in  and  to  the  real  estate  privileges, 
easements,  provisions,  and  conditions  specified  in  a vote  of 
said  town,  passed  at  a general  town  meeting,  held  October 
4th,  1708,  granting  certain  lands  and  rights  to  Christopher 
Osgood,  Jr.,  of  Andover,  as  appears  by  the  record  of  the 
town ; hereby  also  releasing  said  C.  P.  Talbot  and  Thomas 
Talbot,  their  heirs  and  assigns,  from  all  obligations  to  main- 
tain a grist-mill,  as  is  provided  in  said  last-named  vote  of 
said  town.” 

The  respondents  also  put  into  the  case  the  Act  of  1860, 
Chapter  203,  entitled  "An  Act  in  relation  to  the  Proprietors 
of  the  Middlesex  Canal,”  approved  April  4,  1860  ; and  the 
petitioners  put  into  the  case  the  "Resolve  concerning  the 
Middlesex  Canal,”  approved  March  29,  1859,  Chap.  38,  Acts 
and  Resolves  1859  ; also  a certified  copy  of  the  decree  of  the 
Supreme  Judicial  Court  of  Middlesex  County,  passed  at  the 


10 


April  term,  1859,  set  forth  in  pages  126-128  of  said  printed 
record. ' 

The  respondents  contended  that  under  the  charter  of  the 
Proprietors  of  the  Middlesex  Canal  and  the  acts  in  addition 
thereto  above  cited,  and  by  virtue  of  the  proceedings  of  said 
corporation  under  the  same,  and  the  facts  above  found,  all  the 
water  of  the  Concord  river,  including  all  the  water  of  the 
Sudbury,  was  taken,  held  and  appropriated  forever  for  a 
public  use ; that,  inasmuch  as  the  statute  under  which  the 
same  was  so  taken,  provided  compensation  in  damages  for  all 
persons  injured  thereby,  it  must  be  conclusively  presumed 
that  such  damages  had  been  paid,  including  the  damages  sus- 
tained by  reason  of  such  taking  by  the  predecessors  in  title 
of  all  the  petitioners,  except  the  Saxonville  Mills  ; that  under 
the  Act  of  April  4,  1860,  Chap.  203,  all  the  rights,  privileges 
and  franchises  of  said  corporation,  including  the  right  by  it 
acquired  to  the  whole  water  of  the  Concord  river,  became 
vested  in  the  Commonwealth  of  Massachusetts  ; that  the  prior 
grants  of  said  corporation  to  said  Talbots  and  Faulkners  and 
their  predecessors  in  title  were  ultra  vires , and  conveyed  no 
title  to  the  grantees  so  far  as  the  same  conveyed,  or  purported 
to  convey,  any  rights  to  the  water  of  the  Concord  river ; and 
that  therefore  the  said  several  petitioners  are  not  entitled  to 
recover  any  damages  by  reason  of  the  diversion  of  the  ^ater 
of  the  Sudbury  river  by  the  City  of  Boston,  under  the  Act 
of  April  8, 1872,  Chap.  177,  the  same  being  for  a public  use. 

But  being  of  opinion  that  the  said  charter  and  acts  in  addi- 
tion thereto,  and  the  proceedings  of  said  corporation  under 
the  same,  and  the  decree  of  the  Supreme  Judicial  Court  above 
cited,  and  the  Act  of  April  4,  1860,  annulling  and  declaring 
forfeit  the  charter  and  franchises  of  said  corporation,  upon  the 
facts  above  found,  in  no  manner  affected  or  impaired  the  title 
of  the  several  petitioners  to  their  several  estates,  as  set  forth 
in  their  petitions,  or  their  right  at  the  time  of  the  said  taking 
to  the  flow  of  the  whole  water  of  the  Concord  river,  in- 
cluding the  Sudbury,  by  their  said  premises,  and  to  the  use 
thereof  according  to  their  several  claims,  as  set  forth  in  their 
petitions,  or  their  claim  to  recover  damages  under  Section  5 
of  said  Act  of  1872,  and  especially  that  said  Charles  P.  Talbot 
and  Thomas  Talbot,  and  said  James  R.  Faulkner  and  Charles 
Faulkner  had  maintained  their  title  to  the  lands  and  water- 
rights  set  forth  in  their  petitions,  we  have  assessed  damages 
for  said  several  petitioners,  as  set  forth  in  our  award,  not- 
withstanding the  said  objections  of  the  respondents. 


11 


VI. 

The  Essex  Company  put  in  evidence  its  charter,  Act 
1845,  Chap.  163,  and  the  amendments  thereof,  Act  1846, 
Chap.  119,  Act  1848,  Chap.  295.  It  appeared  that  under 
its  charter  it  at  once  acquired  by  purchase  large  tracts  of 
land  upwards  of  a mile  in  length  lying  on  each  side  of  the 
Merrimack  river,  comprising  in  all  1,800  or  2,000  acres  ; and 
that  prior  to  1848  it  built  a dam  from  its  land  on  the  north 
side  of  said  river  to  the  south  side  thereof,  and  constructed 
a canal  on  the  north  side  of  the  river  for  the  purpose  of 
creating  a water-power,  and  of  conducting  the  same  to  its 
lands  on  said  north  side,  to  be  occupied  as  mill-sites  for  the 
use  of  said  power;  and  that  it  subsequently,  in  1867,  con- 
structed a canal  for  the  like  purpose  on  the  south  side  of  the 
river ; that  both  said  canals  were  wholly  within  the  lands 
owned  by  said  corporation ; that  the  cost  of  these  struc- 
tures was  about  $650,000 ; and  that  said  corporation  has 
also  under  Act  1846,  Chap.  119,  expended  about  $200,000; 
in  improving  its  water-power  by  constructing  or  improving 
storage-basins  on  said  river  at  or  about  Lake  Winnipiseogee. 

That  ever  since  the  time  of  their  construction  said  corpo- 
ration has  maintained  and  used  said  dam  and  canals,  and  the 
structures  connected  therewith  and  needful  for  the  use 
thereof,  and  has,  by  itself  and  its  grantees,  as  hereinafter 
stated,  exclusively  and  adversely  to  all  persons,  enjoyed 
the  use  of  the  entire  water-power  of  said  river  created  by 
said  dam. 

That  from  time  to  time,  from  1846  to  the  present  date, 
it  has  sold  and  leased  to  various  corporations  and  persons 
lands  upon  or  near  its  said  canals,  to  be  used  by  them  for 
mill-sites,  houses  for  operatives,  and  other  purposes  con- 
nected with  manufacturing  establishments,  and  has  granted 
to  the  purchasers  and  lessees  of  such  lands  rights  to  use  for 
water-power  certain  quantities  of  water,  to  be  drawn  by 
them  through  its  said  canals,  under  certain  restrictions  and 
for  certain  considerations  paid  and  to  be  paid. 

That  the  available  water-power  to  be  derived  from  said 
river  by  means  of  the  dam  and  structures  of  said  Essex 
Company  is  in  all  about  186  mill-powers,  so  called  ; and 
that  only  about  122  mill-powers  have  been  so  disposed  of  by 
grant  or  lease ; and  that  the  purchasers  and  lessees  under 
said  corporation  are  and  will  be  in  no  wa}r  affected  as  to  the 
amount  of  power  which  they  are  entitled  to  have,  and  will 
be  able  to  have  and  use,  by  any  diversion  of  water  by  the 
City  of  Boston. 

That  said  corporation  has  also  sold  large  quantities  of  its 
land  for  general  building  purposes,  and  uses  not  directly 


12 


connected  with  the  use  of  water-power,  the  city  of  Lawrence 
being  built  in  great  part  upon  the  land  so  sold ; and  that  it 
still  owns  considerable  tracts  of  land  on  both  sides  of  said 
river  ; that  on  the  north  side  being  valued  at  about  $200,000, 
and  that  on  the  south  side,  of  about  600  acres,  being  valued 
at  about  $1,000,000, 

That  part  of  its  lands  so  remaining  unsold  is  available  for 
mill-sites  and  for  uses  connected  therewith,  and  with  manu- 
facturing establishments  which  may  be  built  thereon  ; and 
that  a sufficient  portion  thereof  is  so  available  upon  said 
canals,  and  the  intended  extension  thereof,  to  furnish  room 
for  manufactories  which  would  require  and  exhaust  the  whole 
available  water-power  of  said  river  at  said  dam,  leaving 
large  tracts  of  land  belonging  to  the  said  corporation 
adapted  for  general  building  purposes,  and  uses  not  directly 
connected  with  water-power,  and  which  are  now  held  by  said 
corporation  for  sale  for  such  general  purposes  and  use. 

The  petitioner  claimed  that,  by  the  diversion  of  the  Sud- 
bury river  by  the  act  of  the  City  of  Boston,  the  amount  of 
water-power  derived  by  it  from  said  river,  by  means  of  said 
dam  and  canal,  and  available  for  sale  and  use,  was  diminished, 
and  that  thereby  its  entire  property  and  estate,  including  all 
its  tracts  of  land  held  by  it  for  sale  as  above  stated,  were  in- 
jured by  the  depreciation  of  their  market  value  ; and  claimed 
to  recover  damages  for  such  injury  in  respect  to  its  entire 
property. 

We  find  that  by  the  said  diversion  of  Sudbury  river  the 
water-power  of  said  Essex  Company  is  and  will  be  apprecia- 
bly diminished ; and  in  our  award  made  on  the  petition  of 
said  corporation  we  have  awarded  damages  therefor,  and  in 
such  award  we  have  included  all  damages  sustained  by  the 
petitioner  in  respect  to  its  water  and  water-rights,  and  water- 
power, and  its  dam,  canals  and  other  structures  connected 
therewith  or  pertaining  thereto,  and  in  respect  to  any 
and  all  its  lands  and  real  estate  connected  with  said  water 
and  water-power,  and  structures,  and  capable  of  use  or 
available  for  sale  in  connection  therewith,  including  all  lands 
available  for  sale  or  use  for  mill-sites  or  operatives’  houses, 
or  for  manufacturing  and  mechanical  purposes  in  connection 
with  such  mill-sites  or  water-power.  But  we  have  not 
awarded  damages  to  said  corporation  in  respect  to  its  other 
lands  held  for  sale  as  aforesaid  and  not  connected  with  its 
water-power  or  structures,  nor  available  for  sale  or  use  for 
mill-sites,  or  in  connection  with  manufacturing  or  mechanical 
establishments  using  such  water-power,  for  any  injury  sus- 
tained in  such  lands  by  any  diminution  of  their  market 
value  on  account  of  the  general  effect  upon  real  estate  at 


13 


Lawrence,  produced  by  the  diversion  of  the  Sudbury  river 
and  the  consequent  diminution  of  the  water-power  of  the 
Merrimack  at  Lawrence  ; because  we  deemed  such  damages 
to  be  too  remote  and  speculative,  and  because  the  same  are 
sustained  in  common  with  all  other  parties  owning  real  estate 
in  said  Lawrence,  situated  in  like  manner,  including  all  or 
nearly  all  the  real  estate  in  said  city. 

VII. 

The  respondents  contended  that  the  Essex  Company  was 
not  entitled  to  recover  damages  for  any  diminution  of  its 
water-power  by  the  diversion  of  the  Sudbury  river,  because 
the  Merrimack  river  is  a navigable  stream,  and  because,  as 
they  contended,  the  riparian  proprietors  upon  such  stream  are 
not  entitled  to  damages  for  the  diversion  of  any  part  of  the 
water  thereof  for  a public  use.  But  being  of  opinion  that 
under  its  charter  the  said  corporation  was  entitled  to  create, 
by  a dam  upon  said  river,  a water-power  for  its  own  use,  and 
to  sell  and  lease  said  power,  and  that  upon  the  construction  of 
said  dam  said  water-power  became  the  property  of  the  said 
corporation,  and  that  the  said  corporation  has  sustained  injury 
in  its  said  property  as  well  as  in  its  lands,  as  hereinbefore  set 
forth,  by  the  diversion  of  the  Sudbury  river  by  the  respon- 
dents, we  found  that  it  was  entitled  to  damages  under  the 
provisions  of  Section  5 of  the  said  Act  of  1872,  and  assessed 
the  same  according  to  our  award  upon  its  petition. 

VIII. 

Upon  the  petition  of  Marshall  P.  Wilder  and  al.,  Luther 
W.  Faulkner,  Samuel  N.  Wood,  The  Lowell  Bleachery,  C. 
B.  Snyder  and  al.,  and  The  Belvidere  Woollen  Company, 
the  petitioners  severally  showed  title  as  claimed  in  their  peti- 
tions, under  grants  from  Oliver  M.  Whipple,  to  the  several 
parcels  of  land  therein  described,  and  to  the  mills  standing 
upon  said  land,  and  there  was  no  controversy  as  to  their 
several  titles. 

The  premises  of  these  petitioners  are  near  the  Concord 
river,  in  Lowell,  and  upon  or  near  a canal  built  by  said 
Whipple,  by  which  the  water  of  the  said  river,  raised  by  a 
dam,  also  built  by  said  Whipple  across  said  river,  is  con- 
ducted to  the  premises  of  the  petitioners  and  used  for  water- 
power. Said  dam  and  canal  were  built  by  said  Whipple 
more  than  forty  years  ago,  and  have  been  ever  since  main- 
tained by  him  and  his  successors  in  title.  Said  dam  is  now 
known  as  the  Wamesit  dam. 


14 


The  deeds  under  which  the  several  petitioners  claim  are 
set  forth  in  said  printed  record  as  follows  : — 


Marshall  P.  Wilder  et  al.  at 
Luther  W.  Faulkner 
Samuel  N.  Wood 
The  Lowell  Bleachery 
C.  B.  Snyder  and  al. 
Belvidere  Woollen  Company 


pa^es  . . 546  — 563 

“ . . 573  —579 

“ . . 580  — 583 

“ . . 590  — 592 

“ • . . 603  — 610 

“ . . 884  — 887 


Under  their  grants  from  said  Whipple  the  petitioners  were 
severally  entitled  to  draw  from  said  canal  for  use  upon  their 
premises  a certain  specified  number  of  cubic  feet  of  water  per 
second  for  eleven  and  one-quarter  hours  per  day  for  six  days 
in  each  week,  whenever  the  quantity  of  water  flowing  in  the 
canal  should  equal  288  cubic  feet  per  second,  for  said  time  ; 
and  whenever  the  quantity  of  water  in  said  canal  should  fall 
below  288  cubic  feet  per  second,  the  parties  were  restricted 
each  to  a certain  aliquot  part  of  the  water  actually  flowing 
there,  represented  by  a fraction,  of  which  the  said  speci- 
fied number  of  feet  was  the  numerator  and  288  was  the 
denominator.  Said  deeds  also  conveyed  to  the  several  peti- 
tioners the  right  to  have  the  water  of  Concord  river  enter 
said  canal  to  the  extent  therein  specified,  and  the  right  to 
have  said  canal  and  dam  maintained  for  the  purpose  of  sup- 
plying them  with  water-power,  and  also  contained  covenants 
on  the  part  of  said  Whipple  for  the  maintenance  of  said  per- 
manent dam  and  of  flash-boards  thereon,  and  for  the  enlarge- 
ment and  maintenance  of  said  canal  to  a sufficient  capacity  to 
carry  288  feet  of  water  per  second,  whenever  the  water  in 
the  river  and  canal  is  as  high  as  the  top  of  his  said  permanent 
dam. 

It  appeared  that  by  such  grants  said  Whipple  and  his  suc- 
cessors in  title,  including  the  Wamesit  Power  Company,  had 
conveyed,  prior  to  January  1, 1875,  to  the  petitioners  and  to 
other  parties,  in  all,  the  right  to  use,  for  the  number  of  hours 
in  each  week  above  stated,  220  feet  per  second,  out  of  the 
water  in  said  canal  whenever  the  amount  of  water  flowing 
therein  is  288  feet  per  second ; and  at  all  other  times  the 
right  to  use  of  the  amount  of  water  actually  flowing 
therein  during  the  like  number  of  hours ; and  that  by  deed 
from  one  Patch  to  Benjamin  F.  Butler,  dated  February  15, 
1865,  and  by  deed  from  said  Butler  to  the  Wamesit  Power 
Company,  dated  February  10,  1866,  all  the  remaining  right 
to  the  said  Whipple’s  dam,  and  canal,  and  to  the  water  of 
Concord  river  and  the  water-power  derived  therefrom,  which 
formerly  belonged  to  said  W hippie,  became  vested  in  said 
Wamesit  Power  Company,  subject  to  said  grants  and  to  the 


15 


obligations  and  covenants  contained  in  said  grants  by  and 
under  said  Whipple.  Said  deeds  from  said  Patch  and  said 
Butler  are  set  forth  in  said  printed  record  at  pages  959- 
962. 

The  respondents,  at  the  hearing  of  the  said  petitioners  claim- 
ing rights  upon  the  Wamesit  dam,  produced  and  offered  in 
evidence,  a deed  dated  December  1,  1875,  from  the  Wamesit 
Power  Company  to  the  City  of  Boston,  the  material  part 
whereof  is  set  forth  in  pages  841,  842  of  the  printed  record, 
as  follows : — 

"Said  Wamesit  Power  Company,  in  consideration  of  fifty- 
five  thousand  dollars,  and  other  sufficient  considerations,  the 
receipt  whereof  is  hereby  acknowledged,  said  company 
thereunto  moving,  does  hereby  release  the  City  of  Boston  of, 
and  from,  every  and  all  damages,  compensation  and  claim 
of  damages,  of  whatsoever  name  or  nature,  arising  out  of,  or 
because  of,  the  taking  of  the  water  of  Sudbury  river,  a 
branch  of  the  Concord  river,  under  and  by  virtue  of  the  pro- 
visions of  said  act,  or  however  otherwise  taken  by  said  city 
up  to  the  date  hereof. 

"And  in  addition  said  Wamesit  Power  Company,  for  the 
consideration  aforesaid,  does  convey,  transfer  and  set  over 
to  said  City  of  Boston,  the  amount  of  water  which  may  flow 
in  their  said  canal  equal  to  the  aliquot  part  of  sixty-six  (66) 
cubic  feet  of  water  per  second  whenever  the  water  is  below 
the  level  of  the  permanent  stone  dam  of  said  company,  said 
aliquot  part  being  that  which  will  flow  in  and  through  said 
canal  when  the  water  is  below  the  top  of  said  permanent 
stone  dam,  being  sixty-six  two  hundred  and  eighty-eighth 
parts  (%-gg  ) of  said  water  then  and  there  flowing,  to  be  drawn 
by  the  City  of  Boston  or  their  assigns,  as  each  may  choose  to 
do,  through  any  of  the  penstocks  or  flumes  of  any  of  the  pro- 
prietors of  water  who  have  now  a right  to  draw  the  same  from 
said  canal,  other  than  said  Wamesit  Power  Company,  through 
which  said  city  or  its  assigns  may  elect  to  have  said  water 
drawn,  whether  through  one  or  more  of  said  flumes  or  pen- 
stocks. This  right  to  draw  water  by  said  city,  or  its  assigns, 
to  be  exercised  only  for  eleven  and  one-fourth  (llj)  hours 
per  day  for  six  (6)  days  in  each  week  forever,  but  not  more 
or  otherwise.” 

The  respondents’  counsel  stated  that  said  deed  was  offered 
for  the  purpose  of  showing  that  at  the  time  of  filing  the 
several  petitions,  or  some  of  them,  the  city  was  joint  owner 
or  owner  in  common  with  the  petitioners  of  the  said  Wamesit 
dam,  or  the  water-power  or  the  water-rights  thereat. 

But  as  we  deemed  said  fact  immaterial,  and  as  it  further 


16 


appeared  that  all  the  petitions  were  filed  long  before  the  date 
of  said  deed,  we  ruled  that  it  was  inadmissible  in  evidence 
for  the  purpose  stated. 

The  counsel  for  the  respondents  thereupon  made  a renewed 
offer  of  said  deed  in  evidence,  accompanying  it  with  an  offer 
to  put  on  file  in  these  several  causes  a conveyance  from  the 
City  of  Boston  to  each  of  the  petitioners  of  certain  portions 
of  the  water-power  upon  the  Wamesit  dam,  which  should 
equal  the  entire  amount  of  water  furnished  them  by  the  Sud- 
bury river  at  said  dam ; and  thereupon  offered  said  deed 
from  the  Wamesit  Power  Company  to  the  city  as  admissible 
in  mitigation  of  damages.  But  no  such  deeds  from  the  City 
of  Boston  to  the  several  petitioners  were  produced  or  offered, 
nor  was  it  claimed  that  any  such  deeds  were  in  existence,  and 
we  therefore  refused  to  admit  in  evidence  said  deed  from  the 
Wamesit  Power  Company  to  the  city. 

At  a later  stage  of  the  hearing  said  deed  from  the  Wamesit 
Power  Company  to  the  City  of  Boston  was  again  offered  in 
evidence,  upon  the  ground  that  under  said  deed  the  said  city 
had  become  entitled  at  the  Wamesit  dam  to  a larger  amount 
of  the  water  of  the  Concord  river  than  that  which  it  took  by 
the  diversion  of  the  Sudbury,  and  that  it  was  therefore  enti- 
tled to  take  the  same  at  the  point  of  such  diversion. 

But  being  of  opinion  that  such  claim  could  not  be  sus- 
tained, and  that  the  said  de£d  was  not  admissible  for  that 
purpose,  we  excluded  the  same,  against  the  objection  of  the 
respondents. 


IX. 

The  respondents  contended  that  all  the  petitioners,  having 
interests  in  the  water-power  derived  from  one  and  the  same 
dam,  and  claiming  damages  for  the  loss  or  diminution  of  such 
power,  must  join  in  their  proceedings  to  recover  such 
damages ; and  that  on  the  facts  and  titles  above  stated,  the 
several  petitions  of  Charles  P.  Talbot  and  Thomas  Talbot, 
and  of  James  R.  Faulkner  and  Charles  Faulkner,  could  not 
be  sustained,  because  all  said  petitioners  should  have  joined 
in  one  petition,  and  that  the  several  petitions  of  Marshal 
P.  Wilder  et  al.,  and  of  Luther  W.  Faulkner,  and 
of  C.  Brown  Snyder  et  al.,  and  of  Samuel  N.  Wood, 
and  of  the  Lowell  Bleachery,  and  of  the  Belvidere  Woollen 
Manufacturing  Company,  could  not  be  sustained,  because 
all  said  petitioners  should  have  joined  with  each  other 
and  with  other  parties  having  interests  in  the  water-power 
on  the  Wamesit  dam  in  one  petition. 

It  appeared  that  the  petitioners  in  each  cause  before  us 


17 


were,  at  the  time  of  the  taking  by  the  city,  severally  seized 
of  the  parcels  of  real  estate  described  in  their  several  petitions, 
with  the  mills  thereon  and  the  machinery  therein  dependent  for 
their  power  upon  the  water  furnished  by  the  Concord  river, 
and  dependent  upon  said  power  for  their  use  and  value,  and 
that  their  claims  for  damages  were  for  the  injury  sustained 
in  respect  to  their  several  estates  by  the  diminution  of  the 
supply  of  water  for  the  operation  of  such  mills  and 
machinery,  and  for  use  in  connection  with  and  as  appur- 
tenant to  their  said  estates. 

And  being  of  opinion  that  no  rule  of  law  requires  the 
joinder  of  said  parties  in  one  petition,  as  claimed  by  the  re- 
spondents, but  that  they  are  entitled  to  maintain  their  several 
petitions,  we  have  overruled  the  objection  of  the  respondents 
and  have  assessed  damages  upon  said  several  petitions. 


X. 

Upon  the  petition  of  the  Belvidere  Woollen  Manufacturing 
Company,  the  petitioners  showed  an  uncontroverted  title  by 
grant  to  the  land  and  mill  described  in  their  petition  situated 
upon  or  near  the  Middlesex  dam,  so  called,  in  Lowell,  upon 
the  Concord  river,  and  that  they  were  in  possession  and  en- 
joyment of  the  same  and  of  a portion  of  the  water  and  water- 
power of  said  river  at  said  dam.  The  nature  and  extent  of 
their  right  to  said  water  was  in  dispute. 

It  was  admitted  by  the  petitioners  that  the  Middlesex  Com- 
pany was  entitled  to  a prior  right  to  the  use  of  the  water  of 
the  Concord  river  at  said  dam,  the  extent  of  which  prior 
right  was  in  question  ; and  they  also  admitted  that  other  par- 
ties were  entitled  with  them  to  the  use  of  said  water,  subject 
to  said  right  of  the  Middlesex  Company. 

The  rights  of  all  parties  were  derived  under  a deed  from 
Thomas  Hurd  to  Winthrop  Howe,  dated  May  31,  1821,  and 
an  indenture  of  the  same  date  between  said  parties,  which 
deed  and  indenture  are  set  forth  on  pages  915-917  of  said 
printed  record. 

The  respondents  contended  that  by  said  indenture  the  said 
Hurd  reserved  to  himself  the  saw-mill  privilege  mentioned 
in  said  deed,  as  well  as  "the  first  and  exclusive  right  to  the 
use  of  sufficient  water  to  carry  a fulling-mill  and  three  breast- 
wheels  ; ” and  that  the  title  to  said  saw-mill  privilege  had 
never  vested  in  the  petitioners,  but  was  vested  in  the  Mid- 
dlesex Company,  or  outstanding  in  other  parties  than  the 
petitioners ; and  that  the  rights  of  the  petitioners  in  the 
water  at  said  dam  were  subject  to  the  prior  rights  of  the 
owners  of  said  privilege,  as  well  as  to  the  prior  rights  of  the 


18 


Middlesex  Company  to  the  water  required  for  a fulling-mill 
and  three  breast- wheels. 

But  we  were  of  opinion,  and  so  ruled,  that  upon  the  true 
construction  of  said  deed  and  indenture  said  saw-mill  privi- 
lege was  not  reserved  to  said  Hurd ; and  upon  the  whole 
evidence  of  title  we  found  that  the  petitioners  were  entitled 
to  the  use  of  ninety-one  one  hundred  and  twentieth  parts 
(i¥o)  the  water  of  the  Concord  river  at  said  dam,  subject 
to  the  prior  and  exclusive  right  of  the  Middlesex  Company 
to  the  use  of  sufficient  water  at  said  dam  to  carry  a fulling- 
mill  and  three  breast-wheels  ; and  assessed  damages  for  the 
petitioners  accordingly. 


Commissioners . 


